Supreme Court Mock Opinion 2009

Cite as: 557 U. S. ____ (2009) Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES _________________

No. 09-0001 _________________

ABBEY RHODE, ET AL., PETITIONERS v. OKLAHOMA CITY SD. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT [November 6, 2009]

JUSTICE RIHA delivered the opinion of the Court.

  In the Oklahoma City School District, discipline among students had been a continuing issue; therefore the district revamped its policies to address these matters. Their “Code of Student Conduct” was revamped and renamed “Patriotic Rules are OK! Handbook”. Principles from the various schools were expected, as a part of their duties to enforce these standards and disciplinary guidelines. This case deals primarily with issues at a magnet school hereinafter referred to as “OKC-LA”.

In this case, which has been combined with others previous, we consider 8 issues regarding the regarding potential infringements of constitutional rights. These issues are raised in the Petitioners request for relief. The underlying facts of the case are undisputed by either party, in light of our ruling; we need not reach the question of whether respondent’s actions violated the Establishment clause.

We conclude the majority of the issues are indeed violations and impermissible infringements of rights secured through the constitution. We decline to decide the issue of monetary damages and choose to return this issue to the lower court.

ABBEY  RHODE,  ET  AL.,  v.  OKLAHOMA  CITY  SD  

2   I

The drama club of OKC-LA, under the direction of President Abbey Rhode, elected to perform the play “Vagina Monologues”. Under the new guidelines issued by the board, which state “…In order to maintain the moral integrity and patriotism of our students, no student or student group shall publish, disseminate, perform, reproduce, or display…any material that is sexually explicit in nature…” Abbey understood she would no longer be able to meet at the school, and instead chose to hold some meetings and all practices off campus, and to perform the play off-campus at a local recreation center. Principal Theodore Nugent informed Rhode, they would still be unable to select the play based on its sexually explicit conduct. The Drama club at OKC-LA is a student organization, supervised by community volunteers and no academic credit is issued by participation of students. The club was formed as a school run extra-curricula activity, but no longer receives any support or assistance from the school other than occasional meetings and the use of the name “ OKC-LA High Drama Club” A On the issue of the violation of free speech rights, we find the Principal’s decision to prohibit the meeting of the Drama club on school grounds does not infringe upon the rights of Ms. Rhode. Her right to to meet on school premises is not absolute and does not violate the Equal Access clause as in BOE of Westside Community Schools v. Mergens (1989), because it appears, based upon the facts provided that the school district did not make the rooms available to others for use after hours. B The second issue inherent in this decision is whether the Principals continued censorship or control of the choice or subject matter of the Drama Club infringes on respondents right to free speech. We conclude it does not, in Hazelwood v. Kuhlmeier

ABBEY  RHODE,  ET  AL.,  v.  OKLAHOMA  CITY  SD  

3   (1986) the court held that schools cannot be required to promote particular types of student speech. The use of the school’s name in the club “OKC-LA High Drama Club”, even though the school does not administer or provide support, still implies association. Under the previous decision, a principal may choose to limit deleterious content, which may be “inconsistent with the shared values of a civilized social order.”

II Elections for various student government positions held at OKC-LA high school come with certain rules and restrictions regarding campaigning and how a student may go about promoting his or herself. George Michael, posted signs in the hallways promoting himself for student President. The signs stated “Queer Guy for OKC-LA High Michael for Student Body President” and “Gay Guys Know Everything: Vote George Michael!” The Principal ordered the signs removed because they were sexually explicit and disruptive to the educational environment.

A We conclude on this issue that the school’s prohibition of Michael’s posters did indeed violate his right to free speech protected under the constitution. In Texas v. Johnson we held that “officials do not have the authority to designate the symbols used to communicate a message”. Moreover, the Principal’s interpretation of sexually explicit material does not meet the commonly accepted test that we have established. Morse v. Frederick does not apply to this case, because the actions of the Respondent did not involve the usage of illegal drugs.

III The school district not only has a vested interest in protecting the safety and security of its students, it also has an obligation to that effect. The school has

ABBEY  RHODE,  ET  AL.,  v.  OKLAHOMA  CITY  SD  

4   presently enacted a search policy which requires that “…All students who attend OKC schools are subject to suspicion less searches of three types: 1) All students must be screened by a metal detector prior to entering the school; 2) Any student may be singled out, without suspicion, for a search at any time on school property. Student bags, jackets, pockets, purses, or any other personal items may be searched; and 3) All students are required to submit to random drug testing throughout the school year and every student is required to be tested at least once.” Donita Sparks, a high school senior, arrived late for school. After passing through a metal detector with metallic piercings, which was confirmed to be in good working order she proceeded to enter the school. After arriving 2 minutes late for her class, with another student Robert Smith, they were informed they would both be searched in the back of the class. They were both subject to a cursory pat down and then instructed to untuck their shirts. Neither was informed as to a reason for the search.

A We conclude that the searches of the students did not violate their freedom from unreasonable search and seizure. Even if we apply the tighter standard of Terry v. Ohio the respondents issue, the search was limited and scope and did not involve anything more than a pat down, commonly referred to as a Terry Frisk. Furthermore, pursuant to our decision of New Jersey v. T.L.O (minor child) (1983), the school district need not be held to a higher standard, as is the case with law enforcement agencies, because the school requires a lower standard of “reasonableness.”

IV Frank Black is a student who was chosen to be drug tested in accordance with the school district’s newly implemented policy. Black, who was not involved in any extracurricular school activities refused to submit to the drug testing.

ABBEY  RHODE,  ET  AL.,  v.  OKLAHOMA  CITY  SD  

5  

A Because the stipulated facts do not involve any punitive or discriminatory action towards Black for refusal to submit to testing, we did not decide in this issue. B However, in the event a student was subject to punishment due to the inability or refusal to submit to drug testing, we would likely side with the district, given its compelling interest to protect the safety of its students and to discourage drug use. In both Vernonia School District v. Acton (1994) and Board of Education v. Earls (2001) we held that the students’ freedoms were not impaired in such a way that would violate any expectation of privacy or right to be free from unreasonable search and seizure.

V Richard Butler, a student of OKC-LA, visited his guidance counselor who observed him wearing the necklace. The Principal was informed thereafter and informed Butler that if he continued wearing the necklace, he would be suspended following a recommendation for expulsion. Butler has been a self identified Wiccan for two years prior to this incident. Christian students are allowed to wear religious devices without any repercussions. The school policy states, “’…Satanic cult dress, witchcraft and related symbols’…are forbidden to be worn in school. Students in violation will be suspended and/or recommended to the Board for expulsion…”

A We conclude that the Butler’s right to free exercise of religion was infringed upon in violation of the right to free practice of religion. In Tinker v. Des Moines Ind. Comm. School Dist (1968) we decided that the wearing of armbands or other items

ABBEY  RHODE,  ET  AL.,  v.  OKLAHOMA  CITY  SD  

6   would not interfere with substantial school discipline. Moreover, the fact that Christian students are able to wear their necklaces, only further supports Butler’s claim.

B Secondly, the school district may appeal to the sense of order and proper discipline, which must be brought about in a setting of education. The fact that Butler had been harassed for his choice of religion sets the burden not upon Butler, but rather the school district to provide a safe and welcoming school atmosphere. This effectively negates the inclusion of Goldman v. Weinberger (1985), which maintained that order is necessary for the functioning of a cohesive unit.

VI The school district’s policy of limiting “’…Satanic cult dress, witchcraft and related symbols…” was instituted, and is currently being opposed by respondents due to its purported violation of the establishment clause of the 2nd Amendment.

A We find that the school district is indeed restricting its students’ ability to freely practice their religion of choice. We decided in Church of the Lukumi Babalu Aye v. Hialeah (1992) that ordinances or rules could not be applied to specifically target a specific religious group or groups. The schools enforcement of their provision banning satanic dress, neither serves the good of the student body, nor preserves good order.

VII The school district recently enacted a provision self-stated to “…maintain the morality and patriotism of our students and declare our fealty to American

ABBEY  RHODE,  ET  AL.,  v.  OKLAHOMA  CITY  SD  

7   capitalism each classroom shall have a 24” x 30” sign posted on the wall displaying the words ‘In God We Trust’”.

A We have long held that our country was founded upon religious beliefs and such beliefs continue to shape the way the country and its laws are created. The simple words “In God We Trust” can be found everywhere from currency, to courthouses, and indeed even this Honorable courthouse. The mere words do not imply a certain government approval of religion and do not apply to our ruling in Lee v. Weisman (1991), and Abington School District v. Schempp (1962) which govern implicit state sponsored religion and religious activities. We therefore conclude that the signs do not violate the respondent’s rights.

VIII We turn finally to the the recently enacted policy that includes the following clause “…In order to establish and maintain discipline, regain our moral compass, and create an institutional focus on the importance of the American legal system and its reliance upon the moral, legal and historical antecedents of American JudeoChristian heritage, a monument made of limestone and measuring six feet tall shall be inscribed with the Ten Commandments on one side, the Mayflower Compact on the other, and shall be placed on the front lawn of every Oklahoma City school.” It is important to note that, no monument of any kind had been placed on the properties any time prior.

A We conclude that the monument is a clear and egregious violation of the Establishment Clause. We decided in McCreary County v. ACLU (2004) that the display of the Ten Commandments by the county violated the Establishment clause

ABBEY  RHODE,  ET  AL.,  v.  OKLAHOMA  CITY  SD  

8   because the purpose was to advance religion. Here we see the stated purpose is to “…focus…on Judeo-Christian heritage…” clearly contrary to the intention of the Establishment Clause. Our previous decision in Van Orden v. Perry (2004) does not apply to this case because the intent was not to promote Christianity. Similarly in Allegheny v. ACLU (1988), we held that the clear message sent by the city did indeed violate the Establishment Clause. There is no legitimate secular purpose that has been afforded by the school district to defend their actions in this instance. The defense that the monument advances historical knowledge, and reflection as decided in Lynch v. Donnelly (1983) does not apply in this case yet again, because of the stated purpose. There is no question that the majority of the new policy handbook is fundamentally flawed and may expose the district to liability. We strongly encourage the district to examine its policies and motives with regards to the enact ion of the new rules.

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We reverse the judgment of the Court of Appeals and remand the cases for the District Court to determine whether, in accordance with the standards set out in this opinion, petitioners should be granted relief from the judgment.

It is so ordered.