Chiras v. Miller

United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT F I L E D
December 12, 2005
_____________________
Charles R. Fulbruge III
No. 04-10998 Clerk
____________________

DANIEL CHIRAS, Individually; ET AL,

Plaintiffs,

DANIEL CHIRAS, Individually; and CONSUELO RODRIGUEZ as Next
Friend of Rocio Rodriguez, Individually and on Behalf of
Others Similarly Situated,

Plaintiffs-Appellants,

v.

GERALDINE MILLER, in Her Official Capacity as Chair of the State
Board of Education; DAVID BRADLEY, in His Official Capacity as a
Member of the State Board of Education and in His Individual
Capacity; DON McLEROY, in His Official Capacity as a Member of
the State Board of Education and in His Individual Capacity; DAN
MONTGOMERY, in His Official Capacity as a Member of the State
Board of Education; CYNTHIA THORNTON; in Her Official Capacity as
a Member of the State Board of Education and in Her Individual
Capacity; and GRACE SHORE, in Her Individual Capacity,

Defendants-Appellees.

__________________

Appeal from the United States District Court
For the Northern District of Texas
__________________

Before KING, Chief Judge, DAVIS, Circuit Judge, and FITZWATER,
District Judge.1

1
District Judge of the Northern District of Texas, sitting by
designation.

1
W. EUGENE DAVIS, Circuit Judge:

Appellants Chiras, a textbook author, and Rodriguez, a high

school student, challenge the district court’s Rule 12(b)(6)

dismissal of their action alleging that the Texas State Board of

Education violated the Free Speech Clause of the First Amendment

when it refused to approve Chiras’ environmental science textbook

for state funding. Because we find that the Appellants do not

state a violation of the First Amendment, we affirm the district

court’s dismissal of their suit.

I.

A.

The Texas State Board of Education (the “SBOE” or “Board”)

is a body created by the state legislature2 and given a wide

degree of authority over education policy in Texas, including the

authority to “develop and update a long range plan for public

education,”3 “establish curriculum and graduation requirements,”4

and “adopt and purchase or license textbooks as provided by

Chapter 31 [of the Texas Education Code] and adopt rules required

2
The Texas Constitution requires that the state legislature
create a State Board of Education, but specifies only that
“the board shall perform such duties as may be prescribed by
law.” TEX. CONST., art. 7, § 8.
3
TEX. EDUC. CODE § 7.102(c)(1) (Vernon 1996).
4
Id. § 7.102(c)(4)

2
by that Chapter.”5 The Board is composed of fifteen members

elected from districts across Texas in biennial general

elections.6

The SBOE reviews and adopts the textbooks it deems

appropriate for each course.7 For each subject and grade level,

the State Board of Education is required to adopt two lists of

textbooks: one list includes “conforming” textbooks, the other

includes “nonconforming” textbooks.8 Conforming textbooks

contain material covering each element of the essential knowledge

and skills of the subject and grade level as determined by the

Board, while nonconforming textbooks contain material covering at

least half, but not all, of those elements.9 Both conforming and

nonconforming textbooks must be free from errors and meet the

physical requirements adopted by the Board.10 The Board accepts

or rejects each textbook proposed for placement on one of the two

lists by a majority vote.11

The review process for a textbook begins with submission of

the textbook by the publisher. The textbook is examined by a

5
Id. § 7.102(c)(23)
6
Id. § 7.101
7
Id. § 31.022
8
Id. § 31.023
9
Id.
10
Id.
11
Id. § 31.024.

3
review panel, which evaluates the textbook according to criteria

promulgated by the SBOE, and submits its evaluation to the Texas

Education Agency Commissioner.12 Based on the opinion of the

review panel, the Commissioner then prepares a recommendation to

the Board that the textbook under consideration be placed on the

conforming list, placed on the nonconforming list, or rejected.13

The Board then solicits commentary from the public on the

textbook, both in written form and in hearings.14 Finally, the

Board votes on each textbook to either place the book on the

conforming or nonconforming list, or to reject the book.15

The SBOE has established four conditions under which a

textbook can be rejected. Specifically, the Board may reject any

textbook for:

(1) failure to meet essential knowledge and skills
specified in the proclamation. In determining the
percentage of elements of the essential knowledge and
skill covered by instructional materials, each
performance description shall count as an independent
element of the essential knowledge and skills of the
subject;
(2) failure to meet established manufacturing standards
and specifications recognized by the SBOE;
(3) failure to correct errors of fact; or

12
19 TEX. ADMIN. CODE § 66.36 (West 1996).
13
Id. § 66.63.
14
Id. § 66.60.
15
Id. § 66.66.

4
 (4) content that clearly conflicts with the stated
purpose of the Texas Education Code, § 28.002(h).16
Section 28.002(h) of the Texas Education Code in turn provides:

The State Board of Education and each school district
shall foster the continuation of the tradition of
teaching United States and Texas history and the free
enterprise system in regular subject matter and in
reading courses and in the adoption of textbooks. A
primary purpose of the public school curriculum is to
prepare thoughtful, active citizens who understand the
importance of patriotism and can function productively
in a free enterprise society with appreciation for the
basic democratic values of our state and national
heritage.17
Each year, once the SBOE formulates its lists of conforming

and nonconforming textbooks, the lists are circulated to

individual school districts.18 School districts are required to

select textbooks for use in “foundation curriculum” subjects from

either the conforming or nonconforming list.19 School districts

may select a book not on either list, however, for use in

“enrichment curriculum” subjects.20 If a school district

selects a textbook from the conforming or nonconforming list, the

SBOE pays the cost of supplying copies of the textbook, subject

to certain limitations.21 If, however, a school district

selects a textbook not on either of the lists adopted by the

16
Id.
17
TEX. EDUC. CODE § 28.002(h) (Vernon 1996).
18
Id. § 31.024.
19
Id. § 31.101(a)(1).
20
Id. § 31.101(a)(2).
21
Id. § 31.021; 31.025.

5
Board, the Board pays only 70% of the cost of the textbooks,22

and the local school district is responsible for the remainder.23

School districts may also seek a waiver from the Texas Education

Agency Commissioner to obtain full state funding for a rejected

textbook.24

B.

In May of 1999, the SBOE solicited bids from publishers for

textbooks to be used in regular and advanced environmental

science classes in Texas public high school. In response, Jones

and Bartlett Publishers submitted the sixth edition of

ENVIRONMENTAL SCIENCE: CREATING A SUSTAINABLE FUTURE, authored by

Appellant Daniel Chiras.

In accordance with the Board’s administrative regulations,

Chiras’ book was submitted to a review panel composed of

professors at Texas A&M University. The review panel initially

identified some potential factual errors in Chiras’ book, and so

notified the Commissioner in its initial report. Jones &

Bartlett agreed to make corrections to some statements identified

by the review panel, and provided justification for others. The

review panel accepted Jones & Bartlett’s revisions and reported

22
Id. § 31.101(b).
23
Id. § 31.101(c).
24
Id. §§ 7.056(a), 31.106.

6
to the Commissioner that no additional corrections were

necessary. The Commissioner then placed ENVIRONMENTAL SCIENCE on the

proposed list of nonconforming textbooks to be submitted for

public comment. After reviewing the public comments and Jones &

Bartlett’s responses, the Commissioner recommended in his final

report issued on October 26, 2001, that the SBOE adopt Chiras’

book. ENVIRONMENTAL SCIENCE was one of only three textbooks

recommended for use in regular environmental science courses, and

the only textbook recommended for advanced courses.

Appellants allege that after the Commissioner issued his

report, two “conservative think-tank organizations”—the Texas

Public Policy Foundation (“TPPF”) and Citizens for a Sound

Economy (“CSE”)—requested that the SBOE permit additional public

comment on the proposed textbooks prior to the scheduled vote.

The SBOE agreed, and scheduled a public hearing for November 8,

2001, the day before the final vote on the proposed textbooks was

scheduled. Appellants also allege that Defendant-Appellees

McLeroy, Shore, and Thornton—all members of the Board—worked with

TPPF and CSE to “develop a strategy for rejecting Chiras’ book.”

After the public hearing, at which members of TPPF and CSE spoke

in opposition to approving ENVIRONMENTAL SCIENCE, the Board voted

not to adopt Chiras’ book by a vote of 10-5.

7
 The SBOE issued no formal findings or reasons for its

decision to reject ENVIRONMENTAL SCIENCE. However, Appellants

identify three comments by Board members which they allege

demonstrate an unconstitutional motivation to reject the

textbook. First, Appellee McLeroy wrote an article published on

the CSE website in which he suggested that the SBOE rejected

Chiras’ textbook because it was based on a “false premise” and

that the textbook’s “claim that the root cause of environmental

problems is economic growth is simply wrong.” Second, the Austin

American-Statesman reported that Appellee Shore told the

newspaper that “[t]he oil and gas industry should be consulted”

regarding passage of proposed environmental science textbooks,

because “[w]e [the oil and gas industry] always get a raw deal.”

Third, the Dallas Morning News reported that Appellee Bradley

told the newspaper that the Board was “seeing a change in the

attitude of publishers. They are starting to work with

conservative groups and textbook critics ... who more accurately

reflect the viewpoint of most Texans. I really think the

pendulum is swinging back to a more traditional, conservative

value system in our schools.”

C.

8
 Following the Board’s decision to reject Chiras’ textbook,

Appellants filed this action on the theory that the Board’s

decision constituted impermissible viewpoint discrimination in

violation of the Free Speech Clause of the First Amendment.

Appellees moved to dismiss, and the district court granted that

motion after concluding that school officials may permissibly

discriminate on the basis of viewpoint when selecting materials

for inclusion in the public school curriculum.

The district court reasoned that the selection and use of a

textbook by the public schools is neither pure government speech

nor pure private speech, but rather private speech which bears

the imprimatur of the government. As a result, the district

court applied the forum analysis articulated by the Supreme Court

in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

In Hazelwood, a high school principal had removed from a school

newspaper two pages which contained articles describing students’

experiences with pregnancy and the divorce of their parents. Id.

at 263. The Supreme Court determined that the school newspaper

was a nonpublic forum, and held that “educators do not offend the

First Amendment by exercising editorial control over the style

and content of student speech in school-sponsored expressive

9
activities so long as their actions are reasonably related to

legitimate pedagogical concerns.” Id. at 273.

Applying the rule of Hazelwood, the district court concluded

that Hazelwood did not require the Board’s decision to be

viewpoint neutral, and that the motivations for the Board’s

decision alleged by Appellants were “reasonably related to

legitimate pedagogical concerns.” This appeal followed.

II.

We review the district court's grant of a Rule 12(b)(6)

motion to dismiss de novo. S. Christian Leadership Conference v.

Supreme Ct. of La., 252 F.3d 781, 786 (5th Cir. 2001). In

reviewing the district court's ruling we must treat all facts

pleaded as true, and should construe the pleadings in the manner

most favorable to the non-moving party. Id. We should not grant

such a motion unless it appears beyond doubt that there is no set

of facts on which plaintiff is entitled to relief. Id. To avoid

dismissal, however, a plaintiff must plead specific facts, rather

than conclusory allegations. Guidry v. Bank of LaPlace, 954 F.2d

278, 281 (5th Cir.1992).

III.

10
 Appellants argue that the district court erred in concluding

both that Hazelwood does not require the SBOE’s decision to be

viewpoint-neutral and that the Board’s reasons for its decision

were “reasonably related to legitimate pedagogical concerns.”

Appellees argue, however, that the selection and use of textbooks

in the public schools is government speech, not a forum, and not

subject to the First Amendment rights of either textbook authors

or students. Appellees argue, alternatively, that if the

district court was correct in applying the Hazelwood framework,

the court was correct when it concluded that viewpoint neutrality

is not required.

A.

The first question we must answer is whether Appellant

Chiras alleged a violation of his First Amendment rights as a

textbook author by the SBOE when it declined to place his

textbook on the conforming or nonconforming list of textbooks for

use in public school classrooms. Although the Supreme Court has

not answered this question directly, the Court has given us ample

guidance to allow us to comfortably answer in the negative.

1.
Any discussion of the constitutionality of a state's

decision to reject a textbook for its public schools must begin

11
with the recognition that the states enjoy broad discretionary

powers in the field of public education. Central among these

discretionary powers is the authority to establish public school

curricula which accomplishes the states’ educational objectives.

See Bd. of Educ. v. Pico, 457 U.S. 853, 864 (1982); Ambach v.

Norwick, 441 U.S. 68, 76 77 (1979).

In Milliken v. Bradley, 418 U.S. 717, 741 (1974), Chief

Justice Burger wrote: "No single tradition in public education

is more deeply rooted than local control over the operation of

schools; local autonomy has long been thought essential both to

the maintenance of community concern and support for public

schools and to quality of the educational process." Similarly,

in San Antonio Independent School District v. Rodriguez, 411 U.S.

1, 50 (1973), the Court observed that local control over the

educational process affords citizens an opportunity to

participate in decision making, permits the structuring of school

programs to fit local needs, and encourages “experimentation,

innovation, and a healthy competition for educational

excellence.”

The Supreme Court, therefore, has cautioned that all First

Amendment rights accorded to students must be construed “in light

of the special characteristics of the school environment,” and

12
that the federal judiciary should not “intervene in the

resolution of conflicts which arise in the daily operation of

school systems and which do not directly and sharply implicate

basic constitutional values.” Tinker v. Des Moines Indep.

Community Sch. Dist., 393 U.S. 503, 506 (1969); Epperson v.

Arkansas, 393 U.S. 97, 105 (1968).25

The Court’s guidance regarding our limited review of the

broad authority of the school board over its own policy has been

amplified by the Court’s recent cases addressing government’s

authority over its own message. The government undoubtedly has

the authority to control its own message when it speaks or

advocates a position it believes is in the public interest. For

example, in Rust v. Sullivan, the Supreme Court addressed the

federal government’s prohibition on abortion-related advice

applicable to recipients of federal funds for family planning

counseling, which the petitioners claimed impermissibly

discriminated based on viewpoint. 500 U.S. 173, 192-200 (1991).

25
We do not address in this case allegations that a governmental
entity chose to speak in a way that the substance of the speech
might itself violate a provision of the Constitution, such as the
Establishment Clause. See, e.g., Epperson, 393 U.S. at 106-07.
Instead, we address only claims that the SBOE denied a textbook
author access to the list of approved textbooks and denied
students the information contained in the textbook.

13
The Court held that the prohibition was permissible under the

First Amendment, because:

“The Government can, without violating the
Constitution, selectively fund a program to encourage
certain activities it believes to be in the public
interest, without at the same time funding an
alternative program which seeks to deal with the
problem in another way. In doing so, the Government
has not discriminated on the basis of viewpoint; it has
merely chosen to fund one activity to the exclusion of
the other. A legislature’s decision not to subsidize
the exercise of a fundamental right does not infringe
the right.”
Id. at 193. The “basic difference” observed by the Court is that

“between direct state interference with a protected activity and

state encouragement of an alternative activity consonant with

legislative policy.” Id.

In Rosenberger v. Rector and Visitors of the University of

Virginia, the Supreme Court addressed the power of the government

to restrict speech in the educational context. 515 U.S. 819

(1995). The University of Virginia created a program through

which it paid the printing costs of a variety of student

publications. Id. at 822. However, the University withheld

authorization for payments on behalf of a student paper called

Wide Awake: A Christian Perspective at the University of

Virginia, because the paper “primarily promotes or manifests a

particular belie[f] in or about a deity or an ultimate reality.”

14
Id. at 822-23. The Supreme Court invalidated the University’s

restriction, concluding that the University had engaged in

impermissible viewpoint discrimination. Id. at 837.

In reaching its conclusion in Rosenberger, however, the

Court acknowledged that schools have particularly broad

discretion when making funding decisions regarding their own

curriculum: “Nor do we question the right of the University to

make academic judgments as to how best to allocate scarce

resources.” Rosenberger v. Rector and Visitors of the Univ. of

Va., 515 U.S. 819, 833 (1995) (quoting Widmar v. Vincent, 454

U.S. 263, 276 (1981)). The University, however, did not receive

the benefit of the broad discretion normally afforded to an

educational institution regarding its curriculum, because the

Court found that the fund for student publication was a forum,

subject to the viewpoint neutrality restriction. Id. at 829-30.

The Court was careful to distinguish a school’s decision to

“expend[] funds to encourage a diversity of views from private

speakers” from a school’s decision regarding its own message.

Id. at 834. The Court noted that “[a] holding that the

University may not discriminate based on the viewpoint of private

persons whose speech it facilitates does not restrict the

15
University’s own speech, which is controlled by different

principles.” Id. The Court also made it clear that the

university could speak not only through its own employees, but

also through third parties: “When the University determines the

content of the education it provides, it is the University

speaking, and we have permitted the government to regulate the

content of what is or is not expressed when it is the speaker or

when it enlists private entities to convey its own message.” Id.

at 833 (emphasis added). The Court in Rosenberger noted that its

decision was consistent with the principles it had applied in

Rust. Although “the government did not create a program to

encourage private speech but instead used private speakers to

transmit specific information pertaining to its own program, ...

when the government appropriates public funds to promote a

particular policy of its own it is entitled to say what it

wishes.” Id. at 833 (citing Rust, 500 U.S. at 194)(emphasis

added).

The Supreme Court’s decisions in Rosenberger and Rust

elucidate two points that are key in analyzing Chiras’ claim.

First, in establishing and implementing certain governmental

functions, the government, including its educational

institutions, has the discretion to promote policies and values

16
of its own choosing free from forum analysis or the viewpoint-

neutrality requirement. Second, the government retains this

discretion even where it chooses to employ private speakers to

transmit its message. The Supreme Court has confirmed and

clarified these two principles in three other analogous cases,

reasoning that when a governmental entity must exercise editorial

judgment in choosing among private speakers to facilitate the

government’s own message, the government’s decision is not

subject to forum analysis or the viewpoint neutrality

requirements.

First, in Arkansas Educ. Television Comm’n v. Forbes, the

Supreme Court addressed claims by an independent political

candidate that a state-owned public television broadcaster

excluded the candidate from a debate. 523 U.S. 666, 669 (1998).

Although the Court concluded that under the circumstances of the

case the broadcaster had created a nonpublic forum by hosting a

political candidate debate, the Court limited its holding by

stating that under ordinary circumstances, public broadcasters

exercise a wide degree of discretion when making programming

decisions. Id. at 673 (1998) (“As a general rule, the nature of

editorial discretion counsels against subjecting broadcasters to

claims of viewpoint discrimination.”). The Court compared the

17
discretion held by public broadcasters directly to that held by

school boards:

“Much like a university selecting a commencement
speaker, a public institution selecting speakers for a
lecture series, or a public school prescribing its
curriculum, a broadcaster by its nature will facilitate
the expression of some viewpoints instead of others.
Were the judiciary to require, and so to define and
approve, pre-established criteria for access, it would
risk implicating the courts in judgments that should be
left to the exercise of ... discretion.”
Id. at 674 (emphasis added).

The Court in Forbes contrasted the exercise of editorial

discretion to the decision to fund a generalized array of speech,

such as university-funded student publications. Id. at 673

(citing Rosenberger, 515 U.S. 819). The Court reasoned that

“[i]n the case of television broadcasting, however, broad rights

of access for outside speakers would be antithetical, as a

general rule, to the discretion that stations and their editorial

staff must exercise to fulfill their journalistic purpose and

statutory obligations.” Id. The Court concluded that “public

broadcasting as a general matter does not lend itself to scrutiny

under the forum doctrine....” Id. at 675.26
26
This court anticipated the reasoning of the Forbes decision
in Muir v. Alabama Education Television Commission, where we
addressed claims that public television licensees had violated
the First Amendment by canceling a previously scheduled
program. 688 F.2d 1033 (5th Cir. 1982), cert. denied, 460
U.S. 1023 (1983). Just as in Forbes, we concluded in Muir
that a public broadcaster is not normally a forum, and

18
 Second, the Court in Nat’l Endowment for Arts v. Finley, 524

U.S. 569 (1998), upheld an art funding program that required the

NEA to use content based criteria in making funding decisions.

The Court explained that “[a]ny content based considerations that

may be taken into account in the grant making process are a

consequence of the nature of artistic funding.” Id. at 585. In

particular, “[t]he very assumption of the NEA is that grants will

be awarded according to the ‘artistic worth of competing

applicants,’ and absolute neutrality is simply inconceivable.”

Id. The Court expressly declined to apply forum analysis,

reasoning that it would conflict with “NEA’s mandate ... to make

esthetic judgments, and the inherently content based ‘excellence’

threshold for NEA support.” Id. at 586.

Third, and most recently, the Court concluded that forum

analysis was inappropriate in United States v. Am. Library Ass’n,

Inc., 539 U.S. 194 (2003). In ALA, the Court addressed claims

that the Children’s Internet Protection Act, which required

public libraries to use internet filters as a condition for

therefore private speakers may not claim a right of access to
broadcast content of their choosing. Id. at 1041-43.
Moreover, we held that public broadcasters are not precluded
by the First Amendment from exercising editorial control over
their own chosen messages. Id. at 1043-44. “In exercising
their editorial discretion state officials will unavoidably
make programming decisions which can be characterized as
‘politically motivated.’” Id. at 1044.

19
receipt of federal subsidies, violated the First Amendment. In

that case, the Court found that “[j]ust as forum analysis and

heightened judicial scrutiny are incompatible with the role of

public television stations and the role of the NEA, they are also

incompatible with the discretion that public libraries must have

to fulfill their traditional missions.” Id. at 205. “Public

library staffs necessarily consider content in making collection

decisions and enjoy broad discretion in making them.” Id.; see

also Mark G. Yudof, Personal Speech and Government Expression, 38

CASE W. RES. L. REV. 671, 687 (1987) (“Even in the school library,

the librarian must normally implement the board’s decisions, and

certainly the writers of the books do not have a constitutional

right to determine what books will be acquired.”).

Similarly, when the SBOE devises the state curriculum for

Texas and selects the textbook with which teachers will teach to

the students, it is the state speaking, and not the textbook

author. Designing the curriculum and selecting textbooks is a

core function of the SBOE. It is necessary for the Board to

exercise editorial judgment over the content of the instructional

materials it selects for use in the public school classrooms, and

the exercise of that discretion will necessarily reflect the

viewpoint of the Board members. The purpose of the Board is not

20
to establish a forum for the expression of the views the various

authors of textbooks and other instructional materials might want

to interject into the classroom. The Board does not encourage a

“diversity of views,” contemplated by the Supreme Court in

Rosenberger, but instead “enlists private entities to convey its

own message.” Further, the Board has a statutory obligation

under Texas law to exercise that discretion in order to promote

the state’s chosen message through the Board’s educational

policy. As noted above, the Texas Education Code requires that

the Board “foster the continuation of the tradition of teaching

United States and Texas history and the free enterprise system in

regular subject matter and in reading courses and in the adoption

of textbooks.” TEXAS EDUC. CODE § 28.002(h) (emphasis added).

Because the Board must necessarily exercise its editorial

discretion in selecting which private entities will convey the

message the state selects, forum analysis and the viewpoint

neutrality requirement are inapposite in this case. As a result,

there is no forum to which Appellant Chiras can claim access as a

textbook author.

2.
Much of the Appellants’ claim depends on the argument that

the SBOE’s decision in this case is subject to the restrictions

21
developed by the Supreme Court in Hazelwood. In Hazelwood, a

high school principal removed several pages of a school newspaper

containing an article describing student’s experience with

pregnancy and an article on the impact of divorce on students.

484 U.S. at 263. The Court found that the school newspaper was a

nonpublic forum, established to allow students to express

themselves within the context of the school’s curriculum and

under the supervision of school officials. Id. at 270. The

Court concluded that regulation by the school was permissible so

long as “editorial control over the style and content of student

speech in school-sponsored expressive activities is reasonably

related to legitimate pedagogical concerns.” Id. at 273.

Appellants argue that Hazelwood also requires that the editorial

control be exercised in a viewpoint-neutral manner.27
27
A split exists among the Circuits on the question of whether
Hazelwood requires viewpoint neutrality. Compare Fleming v.
Jefferson County Sch. Dist., 298 F.3d 918, 928 (10th Cir.
2002) (“We hold ... that Hazelwood does not require educators’
restrictions on school-sponsored speech to be viewpoint
neutral.”) and Ward v. Hickey, 996 F.2d 448, 454 (1st Cir.
1993) (“[T]he Court in Kuhlmeier did not require that school
regulation of school-sponsored speech to be viewpoint
neutral.”) with Planned Parenthood of S. Nev., Inc. v. Clark
County Sch. Dist., 941 F.2d 817, 830 (9th Cir. 1991) (“Because
their decision to limit access, whether wise or unwise, is
reasonable and not an effort at viewpoint discrimination, the
school district did not violate the first amendment in
declining to publish Planned Parenthood’s advertisements.”)
and Searcey v. Harris, 888 F.2d 1314, 1319 n. 7 (11th
Cir.1989) ("Hazelwood ... does not alter the test for
reasonableness in a nonpublic forum such as a school but

22
 Hazelwood is comparable to the Supreme Court’s decision in

Forbes. In Forbes, the Court outlined the general proposition

that a public broadcaster, acting as an arm of the state,

normally speaks as the government, and exercises control over its

own message unrestricted by forum analysis or the viewpoint-

neutrality requirements. 523 U.S. 673-74. Nonetheless, a public

broadcaster may become subject to those requirements under

certain circumstances, such as when it creates a forum by holding

and televising a debate for political candidates. Id. at 678-82.

Similarly, the school in Hazelwood became subject to those same

requirements when it created a student newspaper as a forum for

student expression. 484 U.S. at 263. However, just as a

political candidate’s debate is an exception to the general rule

that state-owned media engages in government speech by selecting

and broadcasting programs, so too is the student newspaper an

exception to the general rule that schools engage in government

speech when they set and implement education policy through the

curriculum.

rather provides the context in which the reasonableness of
regulations should be considered.... [T]here is no indication
that the [Hazelwood] Court intended to drastically rewrite
First Amendment law to allow a school official to discriminate
based on a speaker's views.") Because we conclude that
Hazelwood does not apply in this case, we do not consider
whether Hazelwood requires viewpoint neutrality.

23
 In order to apply Hazelwood’s principles, we would have to

find that the SBOE opened its lists of conforming and

nonconforming textbooks as a forum, to which textbook authors and

publishers might claim a right of access. We have already

concluded that the SBOE has not done so, and instead created a

program by which the state sets and implements its educational

policy. Although the state may utilize private textbook authors,

it does so to facilitate transmission of its own approved

message, not a message of the authors’ choosing.28

We note that there is no strong consensus among the circuit

courts regarding the application of First Amendment principles to

the selection of curricular materials by school boards. However,

our conclusion that the selection and use of textbooks in the

public school classrooms constitutes government speech, and

therefore that Hazelwood does not apply, is consistent with the

Ninth Circuit’s conclusion in Downs v. Los Angeles Unified Sch.

District., 228 F.3d 1003, 1012 (9th Cir. 2000). In Downs, the
28

Appellants argue that application of Hazelwood is mandated by this
court’s decisions in Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330
(5th Cir. 2001) (“Chiu I”), and Chiu v. Plano Indep. Sch. Dist.,
339 F.3d 273 (5th Cir. 2003) (“Chiu II”). However, both Chiu I and
Chiu II address allegations that parents were restricted from
distributing flyers, leaflets, and posters criticizing a school
program at public meetings on school premises. Both cases are
examples of allegations that a governmental entity acted to
restrict private speech in a forum context, and therefore, like
Hazelwood, are easily distinguishable from the facts of this case.

24
court addressed the claims of a teacher challenging the

constitutionality of the actions of school officials in refusing

to allow him to post materials on a bulletin board relating to

the school’s gay and lesbian awareness month. Id. at 1005-08.

Just as here, the district court had found that the bulletin

board constituted a nonpublic forum and applied the rule of

Hazelwood, concluding that the school’s restrictions were

“reasonably related to legitimate pedagogical concerns,” and need

not be viewpoint-neutral. Id. at 1008. The Ninth Circuit,

however, concluded that the bulletin boards were government

speech, and not a case of an educational institution “opening up

a forum for either unlimited or limited public discussion.” Id.

at 1012. Instead, the boards “served as an expressive vehicle

for the school board’s policy of ‘Educating for Diversity.’” Id.

However, at least one circuit has applied the “legitimate

pedagogical concern” prong of Hazelwood to the removal of a

textbook because of objections to its vulgarity and sexual

explicitness. See Virgil v. Sch. Bd. of Columbia County, 862

F.2d 1517, 1521 (11th Cir. 1989).29 We note, however, that the
29
A few circuits have also applied the Hazelwood standard to
a teacher's instructional speech. See, e.g., Vanderhurst v.
Colorado Mountain Coll. Dist., 208 F.3d 908, 913-14 (10th Cir.
2000); Lacks v. Ferguson Reorganized Sch. Dist., 147 F.3d
718, 724 (8th Cir. 1998); Silano v. Sag Harbor Union Free
Sch. Dist. Bd. of Educ., 42 F.3d 719, 723-24 (2nd Cir. 1994);
Ward v. Hickey, 996 F.2d 448, 452 (1st Cir. 1993); Webster v.

25
Virgil court applied the Hazelwood standard without finding that

any forum had been created by the school, ignoring a necessary

precondition. Moreover, Virgil was decided before Rust,

Rosenberger, Forbes, Finley, and ALA, and therefore did not have

the benefit of the Supreme Court’s clarification of the

government’s authority over its own message, whether it speaks

through its own employees or through private parties. To the

extent Virgil suggests that the selection of instructional

materials by a school board is not generally government speech,

we disagree.30

New Lenox Sch. Dist., 917 F.2d 1004, 1008 (7th Cir. 1990).
However, several circuits, including our own, have recognized
that a teacher’s instructional speech is ordinarily governed
by the specialized standard developed in Pickering v. Bd. of
Educ., 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138
(1983). See Kirkland v. Northside Indep. Sch. Dist., 890 F.2d
794, 797-800 (5th Cir. 1989); see also Boring v. Buncombe
County Bd. of Educ., 136 F.3d 364, 368-69 (4th Cir. 1998) (en
banc); Nicholson v. Bd. of Educ., Torrance Unified Sch.
Dist., 682 F.2d 858, 864-65 (9th Cir. 1982). Under Pickering-
Connick, a public employee's speech in effect receives no
First Amendment protection unless it involves a matter of
public concern. Kirkland, 890 F.2d at 799. Although
Hazelwood may plausibly apply to a teacher’s speech in cases
where the school has created a forum, we do not address such
a situation here.
30
Our conclusion is also consistent with several pre-Hazelwood
cases involving school board control over textbooks. See,
e.g., Cary v. Bd. of Educ., 598 F.2d 535 (10th Cir. 1979)
(rejecting claim that first amendment rights of high school
teachers were violated when school board banned from optional
instructional use ten non-obscene books out of a list of 1285
previously approved for elective language arts classes for
eleventh and twelfth grade students); Zykan v. Warsaw Cmty
Sch. Corp., 631 F.2d 1300, 1306 (7th Cir. 1982) (finding no

26
 3.
In considering the appropriate analytical framework in which

to judge the Board’s decision to reject Chiras’ textbook, the

district court concluded that the selection and use of textbooks

by the Board is not government speech, but instead private speech

which bears the imprimatur of the government. In doing so, the

district court relied on a four-factor test adopted by the Tenth

Circuit to determine whether speech is that of the government or

of a private speaker: (1) whether the “central purpose” of the

project is to promote the views of the private speaker; (2)

whether the government exercised “editorial control” over the

content of the speech; (3) whether the government was the

“literal speaker”; and (4) whether “ultimate responsibility” for

the project rested with the government. Chiras v. Miller, 2004

WL 1660388, *6 (N.D. Tex. July 23, 2004) (citing Fleming v.

Jefferson County Sch. Dist., 298 F.3d 918, 923 (10th Cir. 2002);

Wells v. City & County of Denver, 257 F.3d 1132, 1141 (10th Cir.

2001)).

cognizable constitutional violation in school board's
prohibition against use of certain books in course, where it
was not alleged that the board sought to "impos[e] some
religious or scientific orthodoxy or a desire to eliminate a
particular kind of inquiry generally"); Minarcini v.
Strongsville City Sch. Dist., 541 F.2d 577 (6th Cir. 1976)
(upholding school board action, over objection of faculty
committee, refusing to purchase three novels for classroom use
and prohibiting their assignment as supplementary reading).

27
 Because we conclude that the selection of curricular

materials by the Board is clearly government speech based on the

principles applied by the Supreme Court in Rust, Rosenberger,

Forbes, Finley, and ALA, we need not adopt this multi-factor test

in order to resolve this dispute. However, we note that the

application of the test in this case produces a result consistent

with our conclusion. The district court found that the “central

purpose,” “editorial control,” and “ultimate responsibility”

factors all weighed in favor of finding that the use and

selection of textbooks in public schools constitutes government

speech. The district court found that only the “literal speaker”

factor weighed in favor of finding that the use of the textbook

was the private speech of Chiras. Nonetheless, the district

concluded on the basis of this single factor that the speech in

the case was not government speech, but rather private speech

which bears the imprimatur of the government.

By giving the “literal speaker” factor determinative weight,

the district court runs afoul of the admonition by the Supreme

Court that the government may “regulate the content of what is or

is not expressed when it is the speaker or when it enlists

private entities to convey its own message.” Rosenberger, 515

U.S. at 833 (emphasis added). If the “literal speaker” factor

28
were enough on its own to outweigh the government’s purpose,

responsibility, and editorial control, the government could never

enlist a private entity to convey its own message, an outcome

inconsistent with settled law. Because the Board exercises

“editorial control” and “ultimate responsibility” over the

selection of textbooks and serves the “central purpose” of

promoting the state’s message as required by statute, the Tenth

Circuit’s four-factor test weighs heavily in favor of concluding

that the selection and use of textbooks by the Board is

government speech.31

Because we conclude that the Board’s selection of textbooks

is government speech, Hazelwood does not apply, and there is no

31
This conclusion is, again, consistent with the approach of
the Ninth Circuit in Downs v. Los Angeles Unified School
District, 228 F.3d 1003, 1011-12 (9th Cir. 2000). In that
case, the court applied an “actual responsibility” test, and
because “the school district and the school board were in fact
responsible for 1) the recognition of Gay and Lesbian
Awareness month and 2) the content of bulletin boards through
school principals’ oversight,” the court distinguished Downs’
claims from other cases, like Hazelwood, involving student
publications. Id. The court concluded that the school board
had not opened a forum for private speech which might bear the
imprimatur of the school, and instead that the bulletin boards
constituted government speech, because the boards “served as
an expressive vehicle for the school boards’ policy....” Id.
at 1012. The same is true in this case. The SBOE bears
“actual responsibility” both for setting the state’s education
policy and for implementing that policy by selecting
appropriate textbooks.

29
forum to which Chiras might assert a right of access under the

First Amendment.

B.

Our conclusion that the SBOE’s selection and use of

textbooks in public school classrooms is government speech and

not a forum for First Amendment purposes means only that

Appellant Chiras may not assert a cognizable right of access to

the approved list of textbooks. The conclusion that no forum

exists in this case does not necessarily preclude, however,

Appellant Rodriguez’s asserted right as a student to receive the

information in Chiras’ textbook from the school. Therefore, the

second question we must answer is whether Appellant Rodriguez

alleged a violation by the SBOE of her First Amendment rights as

a student when it declined to place Chiras’ textbook on the

conforming or nonconforming lists.

Appellants’ primary claim to support for a student’s right

to receive information is the Supreme Court’s decision in Board

of Education v. Pico, 457 U.S. 853 (1982). In that case, the

Court addressed the decision of a school board to remove certain

books it found objectionable from a school library. The Court,

in a plurality opinion authored by Justice Brennan, concluded

that a student may assert a cognizable right to receive ideas,

30
which restricts the ability of the school to exercise discretion

over the materials removed from the school library. See id. at

867-68.32 However, the Court carefully circumscribed that

potential right, acknowledging that the case “does not involve

textbooks” and that the Court’s conclusion “does not intrude into

the classroom, or into the compulsory courses taught there.” Id.

at 862. Indeed, the Court readily admitted that a school board

“might well defend their claim of absolute discretion in matters

of curriculum by reliance upon their duty to inculcate community

32
As this court noted in Muir v. Alabama Educ. Television
Comm’n, the opinions of the Justices in Pico are highly
fractured. See 688 F.2d 1033, 1045 n. 30 (5th Cir. 1982). A
majority of the Justices did not join any single opinion. The
plurality opinion was joined by Justices Marshall and Stevens.
Justice Blackmun concurred in part, but dissented from the
plurality’s conclusion that the “right to receive information”
imposes a duty upon the state to provide information or ideas.
See Pico, 457 U.S. at 878-79 (Blackmun, J., concurring in
part). Chief Justice Burger and Justices Powell, Rehnquist,
and O’Connor all dissent, agreeing with Justice Blackmun that
there is no duty imposed on the state to provide continuing
access to particular books. Id. at 888-89 (Burger, C.J.,
dissenting). Justice White concurred in the judgment of the
Court on the narrowest grounds, concluding that the factual
support for summary judgment was lacking, and that the case
should be remanded for further factual development. Id. at
883-84 (White, J., concurring). As a result, this court
concluded in Muir that Pico has no precedential value as to
the application of First Amendment principles to the school’s
decision to remove the books from the library. Muir, 688 F.2d
at 1045 n.30 (citing Marks v. United States, 430 U.S. 188,
192-93 (1977); Gregg v. Georgia, 428 U.S. 153, 169 n.15
(1976)). Indeed, Chief Justice Burger noted in his dissent
that the Court’s decision contained no binding holding. Pico,
457 U.S. at 886 n. 2 (Burger, C.J., dissenting).

31
values.” Id. at 869 (emphasis in original); see also Mark G.

Yudof, Personal Speech and Government Expression, 38 Case W. Res.

L. Rev. 671, 683 (1987) (“If the expression is governmental and

not personal, students generally may not interfere with the

school’s articulation of its own education messages. They do not

have a constitutional right to add or delete a course from the

curriculum, alter the teacher’s lesson plan, or scrutinize the

school district’s choice of textbooks.”). Because Pico addressed

the removal of an optional book from the school library, not the

selection of a textbook for use in the classroom, we decline to

apply Pico to the facts before us.

Even if we were to assume arguendo that the students’ right

to receive knowledge recognized by Justice Brennan’s plurality

opinion in Pico controlled our decision in this case, the Board’s

decision to exclude Chiras’ textbook from the conforming and

nonconforming lists is firmly within the scope of its discretion.

Justice Brennan states in Pico:

Petitioners rightly possess significant discretion to
determine the content of their school libraries. But
that discretion may not be exercised in a narrowly
partisan or political manner. If a Democratic school
board, motivated by party affiliation, ordered the
removal of all books written by or in favor of
Republicans, few would doubt that the order violated
the constitutional rights of the students.... The
same conclusion would surely apply if an all-white
school board, motivated by racial animus, decided to

32
 remove all books authored by blacks or advocating
racial equality and integration.
Id. at 870-71. Justice Rehnquist was willing to “cheerfully

concede” this principle in his dissent. Id. at 907 (Rehnquist,

J., dissenting). Whether a decision to exclude content is

“narrowly partisan or political,” in turn, “depends upon the

motivation behind [the school officials’] actions.” Id. at 871.

Appellants, however, fail to plead any specific facts which

demonstrate that the SBOE’s decision was motivated by “narrowly

partisan or political” considerations. Although ten of the SBOE

members voted against approval of Chiras’ textbook, Appellants

have identified only three comments by Board members which they

allege demonstrate their claims. Moreover, only one of these

comments refers specifically to Chiras’ textbook. Appellants

allege that Appellee McLeroy wrote an article published on the

CSE website in which he suggested that the SBOE rejected Chiras’

textbook because it was based on a “false premise” and that the

textbook’s “claim that the root cause of environmental problems

is economic growth is simply wrong.” While there may be

political controversy surrounding environmental issues,

Appellants offer no facts to suggest that McLeroy’s comments were

based on partisan, rather than scientific disagreement.

33
 Of the other two comments alleged by Appellants, neither

actually refers to Chiras’ textbook. The Austin American-

Statesman reported that Appellee Shore told the newspaper that

“[t]he oil and gas industry should be consulted” regarding

passage of proposed environmental science textbooks, because

“[w]e [the oil and gas industry] always get a raw deal.” The

Dallas Morning News reported that David Bradley told the

newspaper that the Board was “seeing a change in the attitude of

publishers. They are starting to work with conservative groups

and textbook critics ... who more accurately reflect the

viewpoint of most Texans. I really think the pendulum is

swinging back to a more traditional, conservative value system in

our schools.” Neither comment suggests that the motivation for

rejecting Chiras’ textbook was “narrowly partisan or political.”

The SBOE may permissibly exercise a wide degree of

discretion in performing its traditional function of selecting a

curriculum which promotes the state’s chosen educational policy.

In doing so, it will necessarily reject some instructional

material to which some students may desire to have access.

Nonetheless, where the Board is selecting textbooks for use in

the classroom, students have no constitutional right to compel

the Board to select materials of their choosing. As a result,

34
Appellant Rodriguez has no cognizable right to compel the Board

to place Chiras’ textbook on the approved list of textbooks.

IV.

We affirm the district court’s judgment dismissing

Appellants’ First Amendment claims, although we do so on

different grounds. First, the selection of textbooks by the

state for use in public school classrooms is government speech,

and is not subject to the forum analysis of Hazelwood or the

viewpoint neutrality requirement. As a result, there is no forum

to which Appellant Chiras can claim a right of access. Second,

even assuming that public school students possess a cognizable

right to receive information, that right does not extend to the

selection of textbooks for use in the classroom. Because we

conclude that Appellant Chiras has not stated a claim as a

textbook author to access the Board’s list of approved textbooks

and Appellant Rodriguez has not stated a claim as a student to

compel the Board to select textbooks of her choosing, we affirm

the district court’s judgment in favor of Appellees.

AFFIRMED.

35