No.

uprrmr aurt a{

BRITTANY McCOMB and MARIANNA McCOMB,by her best friend, CONSTANCE J. McCOMB,

Petitioners,V.

GRETCHEN CREHAN, ROY THOMPSON, andCHRISTOPHER SEFCHECK, individually and in their official

capacities as employees of Foothill High School, and theClark County School District, a political subdivision of the

State of Nevada, and WALT RUFFLES, in his official capacity asSuperintendent of the Clark County School District, a political

subdivision of the State of Nevada, et al.,Respondents.

On Petition for a Writ of Certiorarito the United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Anand AgneshwarCounsel of RecordVijay BaligaARNOLD & PORTER LLP399 Park AvenueNew York, NY 10022Tel: (212) 715-1000

James J. KnicelyKNICELY & ASSOCIATES, P.C.487 McLaws Circle, Suite 2Williamsburg, VA 23185Tel: (757) 253-0026

Douglas H. ClarkLAW OFFICES OFDOUGLAS H. CLARK, P.C.2595 South Torrey Pines DriveLas Vegas, NV 89146Tel: (702) 388-1333

John W. WhiteheadDouglas R. McKusickTHE RUTHERFORDINSTITUTE1440 Sachem PlaceCharlottesville, VA 22906Tel: (424) 978-3888

June 18, 2009Counsel for Petitioners

LANTAGNE LEGAL PRINTING801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

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QUESTIONS PRESENTED

The questions presented are:

1. Does the First Amendment prohibit publichigh school officials from censoring student-initiated,student-composed religious speech at a high schoolgraduation ceremony?

2. Do the First Amendment Free Speech, FreeExercise and Establishment clauses prohibit a schooldistrict from censoring religious speech thatexpressly identifies with a particular religion whilepermitting non-sectarian religious speech?

3. Does the First Amendment and this Court’sdecision in Hazelwood y. Kul~lmeier, 484 U.S. 260(1988), prohibit a public high school from usingviewpoint-based criteria in restricting student-initiated religious speech at high school graduationceremonies?

4. Can an interlocutory appellant unilaterally re-start the 30-day clock for filing an interlocutoryappeal (per FED. R. APP. P. 4 jurisdiction limits) byre-filing the same motion previously denied by thelower court?

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......................................ii

APPENDIX TO THE PETITION FOR WRITOF CERTIORARI ............................................ix

PARTIES TO THE PROCEEDING ............................1

OPINIONS BELOW ....................................................1

STATEMENT OF JURISDICTION ...........................2

RELEVANT CONSTITUTIONAL ANDSTATUTORY PROVISIONS ...........................2

INTRODUCTION .......................................................4

STATEMENT OF THE CASE ....................................8

A. The School Officials’ SelectiveCensorship of Brittany’s SpeechViolated Her ConstitutionalRights ....................................................9

B. The District’s RegulationsEnsured That the AudienceWould Not View Brittany’sSpeech as School’Sponsored ...............14

C. The Proceedings Below ........................16

I. REASONS FOR GRANTING THEPETITION ......................................................20

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II.

Selectively Enforcing theEstablishment Clause Violatesthe First Amendment ..........................20

ao Confusion Among theCircuits Regarding Scope ofEstablishment Clause .................20

bo The School Officials ViolatedBoth the Establishment andFree Speech Clauses ....................28

Co Confusion Among theCircuits Regarding ViewpointDiscrimination .............................31

Allowing an Appellant toIndefinitely Toll the Time ToFile an Interlocutory AppealWould Render Rule 4Meaningless .........................................35

CONCLUSION ...............................................39

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Adler v. Duval County School Board,250 F.3d 1330 (11th Cir. 2001) ................21, 22, 23

Armstrong v. Texas State Board of BarberExam’rs, 30 F.3d 643 (5th Cir. 1994) ..................35

Board of Education of Westside Cmty. Schs. 66 v.Mergens by and through Mergens,496 U.S. 226 (1990) ...............................................29

CH. ex rel. Z.H. v. Oliva,195 F.3d 167 (3d Cir.), vacated &reh’gen banegranted, 197 F.3d 63 (3d Cir. 1999) .....................31

Cole v. Oroville Union High School District,228 F.3d 1092 (9th Cir. 2000) ...................19, 21, 32

Corder v. Lewis Palmer School District No. 38,No. 08-1293, 2009 WL 1492547 (10thCir. May 29, 2009) ................................................23

Doe ex tel. Doe v. School District of Norfolk,340 F.3d 605 (8th Cir. 2003) ...........................22, 23

Fisichelli v. City Known As Town of Methuen,884 F.2d 17 (1st Cir. 1989) ...................................35

Fleming v. Jefferson County Sch. Dist. R’l,298 F.3d 918 (10th Cir. 2002) ...............................30

V

Follett v. Town of McCormick,321 U.S. 573 (1944) ...............................................32

Good News Club v. Milford Cent. Sch.,533 U.S. 98 (2001) .................................................29

Hazelwood School District v. Kuhlmeier, et484 U.S. 260 (1988) ............................... 6, 23, 30, 31

Hydrick v. Hunter,500 F.3d 978 (9th Cir. 2007) .................................19

Knox v. Southwest Airlines,124 F.3d 1103 (9th Cir. 1997) .....................6, 19, 34

Lamb’~ Chapel v. Center Moriehes Union Free Sch.Dist.,508 U.S. 384 (1993) ...............................................29

Larson v. Valente,456 U.S. 228 (1982) ...............................................28

Lassonde v. Pleasanton UniSed SchoolDistrict,320 F.3d 979 (9th Cir. 2003) .....................19, 21, 32

Lee v. Weisman, 505 U.S. 577 (1992) ...............passim

Lemon v. Kurzman,

403 U.S. 602 (1971) ...............................................28

Murdock v. Pennsylvania,319 U.S. 105 (1943) ...............................................32

Pearson, et al. v. Callahan,No. 07-751, slip op. 13, 129 S. Ct. 808, 172 L. Ed.2d 565, 2009 WL 128768 (Jan. 21, 2009) .............19

vi

Peek ex rel. Peek v. Baldwinsville Cent. Sch. Dist.,426 F.3d 617 (2d Cir. 2005) ..................................31

Phillips v. Montgomery County,24 F.3d 736 (Sth Cir. 1994) .............................34, 35

Planned Parenthood of Southern Nevada, Inc. v.Clark County School District,941 F.2d 817 (gth Cir. 1991) .................................31

Pruett v. Choctaw County, Ala.,9 F.3d 96 (11th Cir. 1993) .....................................35

Rosenborger v. Rector & Visitors of The Univ.of VA,515 U.S. 819 (1995) ...............................................29

Santa Fe Independent School District v. Doe,530 U.S. 290 (2000) ................... 5, 20, 21, 22, 23, 24

Saucier v. Katz,533 U.S. 194 (2001) ...............................................19

Secrecy v. Harris,888 F.2d 1314 (11th Cir. 1989) .............................31

Taylor v. Cater,960 F.2d 763 (8th Cir. 1992) ...........................35, 36

Tinker v. Dos Moines Independent CommunitySchool Dist.,393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731(1969) .....................................................................29

Ward v. Hickey,996 F.2d 448 (lst Cir. 1993) .................................31

vii

West Virginia State Board of Education v.Barnette, 319 U.S. 624 (1943) ........................28, 29

STATUTES

28 U.S.C. § 1331 .......................................................... 2

Elementary and Secondary Education Act of 1965.25

FED. R. APP. P. 4 ...................... 2, 4, 6, 7, 17, 33, 34, 36

FED. R. CIv. P. 12(b)(6) ........................................ 16, 18

No Child Left Behind Act of 2001, 20 U.S.C. § 6301,et seq. (2001) ......................................................... 25

SuP. CT. R. 13.1 ........................................................... 2

U.S. Const. Amend. I ........................................ passim

U.S. Const. Amend. XIV, § 1 ....................................... 3

OTHER AUTHORITIES

Clark County School District AdministrativeRegulation 6113.2 ................. 3, 4, 11, 13, 14, 15, 26

http ://www.ed. gov/policy/gen/guid/religionandschools/prayer_guidance.html ..............................26

http://www, youtube.com/watch?v=kqzfIitfHjU (lastvisited 6/16/09) ........................................................8

Note, The Constitutional Dimensions o£Studen-Initiated Religious Activity in Public HighSchools, 92 Yale L.J. 499 (1983) ...........................29

viii

APPENDIX TO THEPETITION FOR WRIT OF CERTIORARI

Final Opinion and Order of the United Court ofAppeals for the Ninth Circuit filed March 20, 2009,No. 07-16194 ............................ App. 1

Clark County School District Regulation, AR 6113.2:Sectarianism, Religious Free Speech and ReligiousHolidays ............................... App. 3

Commencement Speech Suggestions issued tovaledictorians by Clark CountySchool District .......................... App. 5

Clark County School Officials’ markup ofBrittany’s draft commencement speech:Filling That Void ........................ App. 6

Excerpts from 2006 Foothills High SchoolCommencement Speeches .................App. 8

Excerpt of Minutes of the Clark County SchoolDistrict Meeting of the Board of School Trustees (Feb.27, 2003) ............................. App. 10

Plaintiffs First Amended Complaint, filed in theUnited States District Court for the District ofNevada ............................... App. 17

Order of the United States District Court ofNevada Denying Defendants’ Motion to DismissComplaint (Dec. 22, 2006) ................ App. 62

ix

Order of the United States District Court of NevadaDenying Defendants’ Motion to Dismiss FirstAmended Complaint(Jun. 18, 2007) ......................... App. 65

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Blsflk Page

PETITION FOR A WRIT OF CERTIORARI

Petitioners, Brittany McComb, Constance J.McComb and Marianna McComb respectfullypetition for a writ of certiorari to review thejudgment of the United States Court of Appeals forthe Ninth Circuit.

PARTIES TO THE PROCEEDING

The Petitioners are Brittany McComb,Constance J. McComb and Marianna McComb,through her guardian Constance J. McComb.

Respondents are Gretchen Crehan, RoyThompson, and Christopher Sefcheck, individuallyand in their official capacities as employees ofFoothill High School, and the Clark County SchoolDistrict, a political subdivision of the State ofNevada, and Walt Ruffles, in his official capacity asSuperintendent of the Clark County School District,a political subdivision of the State of Nevada.

OPINIONS BELOW

The decision of the United States Court ofAppeals for the Ninth Circuit is not reported butattached. Appendices at 1 ("App. ___".). The Ordersof the District Court denying Respondents’ motionsto dismiss are also not reported and attached. (App.62-65.)

STATEMENT OF JURISDICTION

The District Court exercised jurisdiction overPetitioners’ federal claims pursuant to 28 U.S.C.§ 1331. The Complaint was filed on July 13, 2006.Respondents filed their first motion to dismiss onOctober 5, 2006 which the Court denied at a hearingheld on December 18, 2006, as noted by a minute-entry on the docket entered the next day. TheDistrict Court filed an Order denying this motion todismiss on January 9, 2007. (App. 62.) Petitionerfiled an Amended Complaint on December 21, 2009.Respondents filed a second motion to dismiss onJanuary 11, 2007, which the District Court deniedby order entered on June 18, 2007. (App. 65.)

Respondents filed what Petitioners believewas an untimely Notice of Interlocutory Appeal onJune 28, 2007. ~ee FED. R. APP. P. 4(A)(2).

The Ninth Circuit Court of Appeals filed itsMemorandum Opinion on March 20, 2009 (App. 1)and Petitioners accordingly timely file this Petitionpursuant to SuP. CT. R. 13.1.

RELEVANT CONSTITUTIONAL ANDSTATUTORY PROVISIONS

Petitioners’ claims arise under the First andFourteenth Amendments to the UnitedStatesConstitution, which provide in relevant part:

Congress shall make no law respectingan establishment of religion, orprohibiting the free exercise thereof;

2

or abridging the freedom of speech ....(U.S. Const. amend. I)

No State shall make or enforce anylaw which shall abridge the privilegesor immunities of citizens of the UnitedStates; nor shall any State depriveany person of life, liberty, or property,without due process of law; nor denyto any person within its jurisdictionthe equal protection of the laws. (U.S.Const. amend. XIV, § 1)

Petitioners’ claims arise under Clark CountySchool District Administrative Regulation 6113.2,Sectarianism, Religious Free Speech and ReligiousHolidays ("Regulation 6113.2"), which provides inrelevant part:

(III) Student initiated non-schoolsponsored religious speech isacceptable in the public schools in thesame manner as other free speech.

(IV) School officials may not mandateor organize prayer at graduation orother extracurricular activities orselect speakers for such events in amanner that favors religious speechsuch as prayer. Where students orother private graduation speakers areselected on the basis of genuinelyneutral, evenhanded criteria andretain primary control over thecontent of their expression, however,that expression is not attributable to

the school and, therefore, may not berestricted because of its religious (oranti-religious) content. To avoid anymistaken perception that a schoolendorses student or other privatespeech that is not in fact attributableto the school, school officials maymake appropriate, neutral disclaimersto clarify that such speech is notschool sponsored.

(Regulation 6113.2 §§ (III)& (IV)) (App. 1.)

Petitioners also raise a claim regarding theinterpretation of Rule 4 of the Federal Rules ofAppellate Procedure’s jurisdictional limitations.

INTRODUCTION

Petitioner Brittany McComb ("Brittany" or"Petitioner") and two other students were asked tospeak at their high school graduation ceremonybecause they each had achieved the distinction ofvaledictorian by virtue of their grade point average.Each student was asked to speak about their highschool experience and what they wished from life forthemselves and others. Brittany sought to speakabout the importance of her newly found Christiancommitment and how it related to her success inhigh school; another student, Janelle OehlerCJanelle"), spoke about the importance of "OurHeavenly Father" in the success achieved in her life.Brittany was censored; Janelle was not.

The Respondents’ (collectively the "SchoolOfficials") decision to censor Brittany’s views cannot

4

be reconciled with the language and spirit of thisCourt’s First Amendment jurisprudence. This Courthas cautioned against treating "nondenominational"or civically-oriented religious speech differently fromsectarian religious speech, yet that is precisely thedistinction the Ninth Circuit drew in this case and intwo other cases over the past several years on whichit relied.

This Court should grant certiorari to clarify tothe lower courts that student-initiated, student-composed religious speech at high school graduationceremonies does not violate the Establishmentclause and that censoring such speech violates theFree Speech clause and, in this instance, theEstablishment clause.

Second, the Court should grant certioraribecause the reasoning employed by respondents andthe Ninth Circuit to justify different treatment ofreligious speech does not comport with Santa FeIndependent School District v. Doe, 530 U.S. 290(2000) and Lee v. Woisman, 505 U.S. 577 (1992), theCourt’s two leading "school speaker" Establishmentclause eases. Ninth Circuit precedent currentlypermits standardless censorship of religious speechthat the Ninth Circuit courts believe is proselytizing.But Weisman and Santa Fe do not permit a schooldistrict to make judgments about the merits ofsectarian versus "civically-oriented" religious speech.Nor do they authorize school officials to discriminatebetween nonsectarian student religious speech andstudent speech that is proselytizing. Indeed,Woisman specifically cautioned against favoring onereligious view over another, particularly on theground that one is more civic-seeming than another.

Weisman, 505 U.S. at 598. The reason is simple -- tofavor non-sectarian religious speech over sectarianreligious speech gives onereligious viewpointpreferential treatment in violation of theEstablishment clause. Here,the School Officialsmade a considered judgment that notwithstandingthe students’ neutral selection and primary controlover their speeches, the School Officials’ limitedinvolvement in reviewing the speeches andpermitting them to be delivered at graduationrendered them "endorsed" by the school. PermittingJanelle to highlight the benefits of her relationshipwith her Heavenly Father but prohibiting Brittanyfrom highlighting the benefits of her relationshipwith Jesus Christ, the School Officials favored onereligion over another in violation of theEstablishment Clause.

Third, certiorari should be granted to resolveconfusion among the Circuits concerning the correctstandard of review for evaluating claims of viewpointdiscrimination in "school-sponsored" events. UnderHazelwood School District v. Kuhlmeier, et al. 484U.S. 260 (1988), a school has the authority to"exercis[e] editorial control over the style andcontent of studentspeech in school-sponsoredexpressive activitiesas long as its actions arereasonably relatedto legitimate pedagogicalconcerns." Id. at 273 (footnote omitted; emphasisadded). The Circuits are split, however, as towhether a school’s decision must be based onviewpoint-neutral criteria. Here, the SchoolOfficials, exercising unfettered, standardlessdiscretion, labeled the religious content in Brittany’sspeech as "proselytizing" and thus turned off themicrophone in the middle of her speech. Yet, at the

6

same graduation ceremony, the School Officialsallowed another graduation speaker to deliver asimilar speech with religious content. The soledistinction was that Brittany’s speech mentionedJesus Christ and was deemed to be proselytizing andthe other student’s was not. Putting aside whetherthe School Officials are qualified to make suchjudgments, they should not be discriminatingbetween different types of religious speech.Notwithstanding the split in the Circuits, this Courthas not spoken on that precise issue and should doSO.

Finally, the Court should grant certiorari toresolve a split among the Circuits concerning thetime limitation for filing interlocutory appeals. Rule4 of the Federal Rules of Appellate Procedurerequires a party to file an interlocutory appealwithin thirty days of entry of the judgment or order.FED. R. APP. P. 4(a)(1). In the instant matter, theNinth Circuit allowed Respondents’ appeal toproceed even though they did not file a timely noticeof appeal from the District Court’s denial of theirfirst motion to dismiss. Rather, relying on Knox v.Southwest Airlines, 124 F.3d 1103, 1106 (9th Cir.1997), the Court of Appeals allowed Respondents toappeal from an Order denying their virtuallyidentical motion directed at an amended complaint.The Ninth Circuit’s ruling is inconsistent with therulings of other Circuits that have held otherwise.This Court should resolve this dispute and hold thatRule 4(a)(1) prohibits a party that fails to file atimely interlocutory appeal from salvaging thatappeal by filing an appeal from the denial of anidentical successive motion to dismiss.

7

STATEMENT OF THE CASE

Brittany was one of three class of 2006valedictorians of Foothill High School ("Foothill" orthe "School") selected to give a commencementspeech at the school’s annual commencementceremony held at the "Orleans Arena" in "TheOrleans Hotel & Casino" in Las Vegas, Nevada. SeeCompl. at ¶ 25 (App. 29).1 On June 15, 2006, asBrittany delivered her speech, she was silenced infront of 400 of her peers, and thousands of guests,simply because she mentioned the importance of herChristian faith to her success in high school. SeeCompl. at ¶¶ 62-63 (App. 36.)2 At the same time, theSchool Officials permitted another valedictorian toinvoke her religious beliefs repeatedly in her speechand others to speak about the reasons for theirsuccess and inspiration. ~qoe Compl. at ¶ 64C (App.37-38.)

1 Brittany’s mother, Constance J. McComb, and her sister,Marianna McComb, then a student at Foothill High School,are also plaintiffs in this case. Constance and Mariannawere both deprived of the right to hear Brittany’s speech ina public forum and each joined in the suit because of thatdeprivation and the potential future discrimination againstreligious speech in future commencement exercises atFoothill. ,gee Compl. at ¶¶ 3A, 4 (App. 20.)2 A video of the speech may be found at:http ://www.youtube.com/watch?v=kqziIitfHjU (last visited6/16/09).

8

Ao The School Officials’ SelectiveCensorship of Brittany’s SpeechViolated Her Constitutional Rights

Foothill selected speakers based solely uponthe neutral criterion of student grade-point average.Compl. at ¶¶ 17-18 (App. 24.) When invited tospeak, Respondent Thompson, Foothill’s actingAssistant Principal, provided each valedictorian witha document entitled "Commencement SpeechSuggestion~’ (emphasis added) (App. 5); see alsoCompl. at ¶¶ 20, 20A (App. 25.) These suggestionsneither encouraged nor discouraged speakers fromutilizing religious content in their speeches. Id.;Compl. at ¶ 27 (App. 29.) Rather, they ranged fromthe procedural ("[1limited to 200 words"; "length: 1-2minutes"), to the substantive:

Use "imagery and metaphorical comparison";

"Interject HOPE";

"OMIT thank you ...";

include "[t]hings that bind us to one another";

"[r]eflect over past experiences and lessonslearned"; and

"say things that come from the heart."

Brittany followed these "suggestions" to theletter. Her draft speech, entitled "Filling That Void,"used "imagery and metaphorical comparison,""interject[ed] hope," "[r]eflect[ed] over past

experiences and lessons learned" at Foothill andspoke "from the heart" about the emptiness sheexperienced from accomplishments, achievements,and failures in her early high school years, and thefulfillment and satisfaction she later came toexperience in something greater than herself,namely in God’s love, and in Christ. See Brittany’sDraft of Commencement Speech ("Draft Speech")(App. 6); Compl. at ¶¶ 28-30 (App. 20.) To Brittany,any remarks about her success and formativeexperiences in high school would be dissemblingwithout reference to her relationship with God.Compl. at ¶ 30 (App. 29-30.) Like the speeches bythe Salutatorian, the other Valedictorians and,indeed, the Principal and a Member of the ClarkCounty School District’s Board of Trustees (the"District"), Brittany’s speech fit within the School’s"suggestions." It was a personal statement about thelessons that she learned during her odyssey atFoothill, and how those experiences affected her lifeand her future. See Draft Speech (App. 6); Compl. at¶¶ 29"30, 64C (App. 29-30, 37"39.)

Brittany’s speech as drafted quoted the Bible,described her Christian outlook and told theaudience that they could likewise find fulfillmentthrough Christ if they chose. She did not say aprayer, and whether her remarks were proselytizingis at most a matter of debate. What is indisputableis that her words were her own. She wrote primarilyfrom the first person about what "worked for her."Id. She spoke about what she wanted for herself andfor others. She was one speaker among several, allof whom spoke about similar topics but asindividuals who brought to bear different and uniqueperspectives. A reader of Brittany’s draft speech,

l0

recognizing the context in which it would bepresented, could not reasonably have believed theschool was sponsoring her religious views; insteadBrittany’s words were explicitly and forthrightly theviews of a young, vibrant straight’A studentexplaining her view of the foundations of hersuccess. See id. Nor would a listener of the otherstudents’ speeches reasonably believe that the schoolwas endorsing or sponsoring their views. Allstudents knew from the program and introductionthat Brittany and the other students were speakingas Valedictorians, selected solely because they werethe three students with the highest grade’pointaverages, and expressing their own views about life.

At Mr. Thompson’s request, Brittanysubmitted the speech she had drafted. Compl. at¶¶ 34"35 (App. 30-31.) He returned the speech toher heavily censored. See Draft Speech (App. 6);Compl. at ¶¶ 40-41 (App. 31-32.) Substantialpassages were crossed out, and annotated with"IDENTIFIES A PARTICULAR RELIGION,""DEITY," and "PROSELYTIZING." Id. RespondentsCrehan and Thompson informed Brittany that shecould not deliver the speech she had written becauseof its "religious references," including her mention ofJesus Christ. Id.

The School and its attorney rebuffednumerous attempts by Brittany and her mother (andattorney) to meet to discuss the content of the speechand to clarify the basis for their censorship. Compl.at ¶¶ 48-52 (App. 33-34.) Ultimately, on the day ofher Commencement, Brittany chose to deliver theoriginal unedited version of her speech. Id. at ¶¶ 61-62 (App. 36.) The moment Brittany began to speak

ll

the words the School Officials had crossed out,Respondent Sefcheck turned off the microphone. Id.Despite a school policy that permitted school officialsto "make appropriate, neutral disclaimers to clarifythat such speech is not school sponsored,’’a at nopoint did any of the Respondents attempt to give adisclaimer to the audience prior to thecommencement speeches. Id. at ¶¶ 56-66 (App. 35-36.) Such a disclaimer would have made clear -- ifanyone believed it was not clear already "- that theviews of the speakers were not endorsed by theschool district. See id.

The School district thereupon permittedanother valedictorian to speak, without interference,about her own religious viewpoint. Compl. at ¶ 64C(App. 37-38.) Janelle Oehler, another Valedictorianselected based on her grade point average, describedhow a deity, her "Heavenly Father," and "prayer"had played an extremely important role in her life.Id. Using the metaphor of a balanced meal, Janelleshared with the audience the following:

And, of course, our meal is neverstarted without prayer. My HeavenlyFather plays an extremely importantrole in my life. I am confident that Iwould not be standing before youtoday if I had not included Him in mylife. He is the One who trulyunderstands our individual needs. Heis always there to listen, to lead, toguide, and to give me strength I need

See Administrative Regulation 6113.2 (IV) (App. 3).

12

to keep, when I need and to give mestrength that I need to keep on goingwhen I no longer believe I can, I wouldbe nothing without Him. Find .yourinspiration. Living with the hope for abrighter future will make significantdifference in our lives, provide us withtrue inner happiness and personalsuccess. If we strive to be moremotivated by inspiration, we will findourselves more satisfied, as if we hadenjoyed a complete balanced andnutritional spaghetti dinner.

Id. (emphases added).4 The sole material differencebetween the viewpoints expressed by these twostudents was that Brittany’s was avowedly Christianand Janelle’s was not. But both referred to a deityas a source of inspiration; both provided views ashow others could achieve happiness; and bothrepresented indisputably religious viewpoints.

Later, Mary Beth Scow, a Member of theDistrict, offered a speech that quoted a "Chineseproverb," and Respondent Crehan chose in herspeech an inspirational charge with a secular bentdevoid of "religious references." Compl. at ¶ 64C(App. 37-38); Commencement Excerpts (App. 8-9.)

4 Janelle delivered her speech immediately afterBrittany’s speech was censored. See Excerpts of 2006Commencement Speeches ("Commencement Excerpts")(App. 8"9).

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Be The District’s Regulations EnsuredThat the Audience Would Not ViewBrittany’s Speech as School-Sponsored

Respondents repeatedly have justified theircensorship as necessary to prevent an Establishmentclause violation because graduation speechescontaining religious content would bear theimprimatur of school sponsorship. But the Districtin this matter had numerous policies that itspecifically enacted to ensure that student speecheswould not bear the imprimatur of schoolsponsorship, which its officials failed to follow.

First, Clark County School Districtregulations required the School Officials to permitBrittany to address her classmates and theirfamilies in her own words. Specifically, ClarkCounty School District Administrative Regulation6113.2 provided that:

Where students or other privategraduation speakers are selected onthe basis of genuinely neutral,evenhanded criteria and retainprimary control over the content oftheir expression, however, thatexpression is not attributable to theschool and, therefore, may not berestricted because of its religious (oranti-religious) content. To avoid anymistaken perception that a schoolendorses student or other privatespeech that is not in fact attributableto the school, school officials maymake appropriate, neutral disclaimers

14

to clarify that such speech is notschool sponsored.

See Regulation 6113.2 §§ (III) & (IV) (App. 3)(emphasis added).5

Thus, Brittany and the other Valedictorianswere selected on the basis of neutral criteria. Whilethey were provided with suggestions for the contentof their speeches, it was incumbent upon them toselect the topic and write the substance of theirspeeches. Their speeches were their own, and notthe school system’s. Moreover, in thesecircumstances, under the District’s own regulations,the School Officials were proscribed from restrictingthe students’ expression based upon religious oranti-religious content.

Furthermore, the District’s own regulationsand Board minutes show that it recognized thatexerting school control over even religious speecheswas unnecessary to protect against anEstablishment clause violation, because a neutraldisclaimer would resolve any appearance of statesponsorship of a speaker’s message. Specifically, theDistrict’s Board of Trustees, in enacting the currentversion of Regulation 6113.2, was advised by theirGeneral Counsel that the "administration doesreview the comments that are going to be made bystudent speakers at graduations," and that "once the

5 This regulation is but one of many that provide "specificdetails and procedures" governing "the details of Districtoperations," and therefore binding on School Officials. SeeCompl. at ¶¶ 23, 24 (App. 26-28.)

15

administration reviews the comments, it becomesschool or district sponsorship." See Clark CountySchool District Meeting Minutes (App. 10).6Nonetheless, they were told that "[w]hat a studentsays for a particular success they might have had isprobably going to fall in the area of free speech andgoing to be allowed .... " Id. (emphasis added).Notably absent was advice as to standards by whichschool officials could draw lines as to whether speechwas "proselytizing," and whether such "school-sponsored" speech could nevertheless be censoredbased on viewpoint. Instead, the policy, as adopted,provided for a neutral disclaimer to eliminate alldoubt as to school sponsorship of the speech inquestion. See Regulation 6113.2 (App. 3).

Notwithstanding the strictures of Regulation6113.2 and the policy of invoking a neutraldisclaimer, the School Officials instead resorted tothe drastic action of turning off the microphone andcensoring Brittany’s speech as she spoke.

C. The Proceedings Below.

On July 13, 2006, Petitioners filed aComplaint in the United States District Court forthe District of Nevada commencing the instant case.See Docket for the United States District Court forthe District of Nevada ("Court Docket"). Instead ofanswering the Complaint, the School Officials filed a

6 The District’s General Counsel is Carl William Hoffman,Esq., who represents the School Officials in this action, andwho argued the School Officials’ motion to dismiss before thecourts below. See id.

16

Rule 12(b)(6) motion to dismiss. Id. Those schoolofficials who were sued in their individual capacitiesargued, among other things, that they were entitledto qualified immunity. Id.

The District Court held oral argument onDecember 18, 2006 on all aspects of the SchoolOfficials’ motion, including the claim of qualifiedimmunity. At the close of the argument, the courtruled against the School Officials because "it’s notclear what was being censored here and what wasthe basis for the censorship" and discovery wasnecessary to determine whether the School Officialswere entitled to the claimed qualified immunity.7

The next day the Court placed a minute’entry on thedocket denying the School Officials’ motion todismiss. See Court Docket. The court subsequentlyentered a written order denying the motion onJanuary 9, 2007. December 22, 2006 Court Order.s

The School Officials did not appeal the court’sdecision within the 30 days provided them by Rule 4.See Court Docket.

Shortly after the hearing, Petitioners served aFirst Amended Complaint to address one or twohousekeeping matters and to name the schooldistrict’s superintendent in his official capacity only.See g’ene~’,~I].y Amended Complaint (App. 17.) TheAmended Complaint raised no new causes of action,no new allegations of breach of duty, no new

7 See Official Transcript of December 18, 2006 OralArguments Before the District Court of Nevada.s The Order is dated December 22, 2006, but was signedJanuary 5, 2007 and was docketed January 9, 2007.

17

constitutional claims and certainly nothing thatwould change the analysis of the School Officials’entitlement to qualified immunity in their individualcapacity at the pleading stage. See id. The SchoolOfficials nevertheless chose to file a second motion todismiss on grounds identical to their first motion.See Court Docket. The School Officials made noeffort to demonstrate that the intervening complaintsomehow changed the governing law or facts,warranting a second consideration by the DistrictCourt. They made no effort to show that the DistrictCourt made a clear error of law or fact. Instead, theSchool Officials filed a near carbon copy of their firstmotion.

The District Court denied the second motionsummarily, on the ground that it had already ruledon the identical motion. See June 18, 2007 CourtOrder (App. 65). The court explained:

[T]he Amended Complaint named ...an additional Defendant and clarifiedPlaintiffs’ factual allegations.However, the Amended Complaint didnot add additional causes of action ornew allegations. Defendantsnevertheless filed a second Motion toDismiss the Amended Complaint.Defendants’ present Motion isvirtually identical to the initial Motionto Dismiss. It raises arguments thathave already been briefed, discussedat oral argument, and ultimatelyrejected by the Court.

Id. (emphasis added).

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On June 28, 2007, The School Officials filed aNotice of Interlocutory Appeal of the June Order.See Court Docket. The School Officials to this dayhave not sought to appeal the court’s first Order.See id. The School Officials filed their Notice ofInterlocutory Appeal more than five months afterthe District Court denied their initial Motion toDismiss--well outside the 30-day window providedby Rule 4 of the Federal Rules of AppellateProcedure. The School Officials immediately filedtheir motion to dismiss the appeal for lack ofjurisdiction based on the failure of the SchoolOfficials to appeal the District Court’s denial of theRule 12(b)(6) motion within the 30-day periodallowed by Rule 4. The issue was joined, with thecourt deferring its ruling until disposition on themerits.

On the merits, the School Officials arguedthat their actions did not violate "clearlyestablished" law, and that they were thus entitled toqualified immunity per Saucier v. Katz, 533 U.S. 194(2001). The Ninth Circuit did not decide this issue,but exercised its discretion to decide the case solelyon constitutional grounds, as permitted by thisCourt’s recent decision in Pearson, et M. v. Callahan,No. 07-751, slip op. 13, 129 S. Ct. 808, 172 L. Ed. 2d565, 2009 WL 128768 (Jan. 21, 2009).

In its Memorandum opinion, the Ninth Circuitaddressed the constitutional issues and ruledsummarily "that Defendants did not violateMcComb’s free speech and free exercise rights bypreventing her from making a proselytizinggraduation speech," relying on its earlier decisions inCole v. Oroville Union High School District, 228 F.3d

19

1092, 1101 (9th Cir. 2000), and Lassonde v.Pleasanton Unlined School District, 320 F.3d 979,983 (9th Cir. 2003). (App. 1.) The Court continued:"[n]or did [Defendants] violate MeComb’s right toequal protection; they did not allow other graduationspeakers to proselytize." On the jurisdictional issue,the Court assumed jurisdiction over the appealunder Ninth Circuit precedents, citing Knox v.Southwest Airlines, 124 F.3d 1103 (gth Cir. 1997),and Hydriek v. Hunter, 500 F.3d 978 (9th Cir. 2007).(App. 1.)

I. REASONS FOR GRANTING THE PETITION

Selectively Enforcing theEstablishment Clause Violates theFirst Amendment

The Ninth Circuit’s decision, which sustainedcensorship of student-initiated sectarian religiousspeech but permitted student-initiated nonsectarianreligious speech (a) conflicts with otherEstablishment clause precedents in the Circuits, aswell as the decisions of this Court; (b) results in aviolation of both the Free Speech and Establishmentclauses; and (c) creates confusion among the Circuitsregarding viewpoint discrimination.

ao Confusion Among the CircuitsRegarding Scope ofEstablishment Clause

Following Weisman and Santa Fe, confusionhas arisen among the Circuits about how theEstablishment clause applies to student speech atschool graduation exercises. This Court has not

20

addressed this area of the law and should do so inlight of the diverging law in the Circuits.

In Weisman, the only Supreme Court decisionto address prayer at public school graduationprograms, the Court found that the school violatedthe Establishment clause when it invited a rabbi todeliver an "invocation" and "benediction" at a schoolgraduation ceremony and provided him with contentfor use in delivering the benediction. 505 U.S. at586, 588. In holding this prayer policy/practice to beunconstitutional, the Court emphasized twosynergistic factors: the extent of state control andthe perceived coercion of students to participate. Id.The Court determined that "the principal directedand controlled the content of the prayers," thustransforming the prayer into a state-sponsored"religious exercise." Id. (emphasis added).

This Court’s more recent decision in Santa Feheld that a policy allowing members of a senior highschool class to elect whether to include a prayerbefore home football games violated theEstablishment clause, even if the prayers were"nonsectarian" and "non-proselytizing." 530 U.S. at298, n.5, n.6. The Court reasoned that the schoolspecifically directed students to consider whether aprayer should be included; therefore the schoolimplicitly encouraged school prayer and created"both perceived and actual endorsement of religion."Id. at 305.

Both Weisman and Santa Fe involved actionsby school officials endorsing or approving of schoolprayer. Yet the Ninth Circuit, in this and in its priordecisions in Cole, 228 F.3d at 1092, and Lassonde,

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320 F.3d at 979, interpreted them to prohibitstudent’initiatedreligious speech that, in the Court’sview, was proselytizing. These rulings not onlymisinterpret the direction of Weis~nan and Santa Fe;they conflict with other Circuit court decisionsexamining this issue.

The Eleventh Circuit in Adler v. DuvalCounty School Board, 250 F.3d 1330 (llth Cir.2001), under similar facts, reached a differentconclusion than the Ninth Circuit. There, severalstudents challenged a school policy permitting thegraduating class to vote for a student speaker todeliver a message at graduation. In practice, themessage invariably was a prayer, but there had beenno requirement that it be such, and the student wasallowed to deliver any message he or she chose. Id.at 1336. Applying Santa Fo, the court held that theschool’s policy neither subjected the speech to’"particular regulations that confine[d] the contentand topic of the student’s message,’" nor "invited andencouraged religious messages." Id. at 1336 (quotingSanta Fo, 530 U.S. at 303). As such, any religiousspeech that occurred was student-initiated and couldnot be attributed to the school.

More recently, in Doe ex re]. Doe v. SchoolDistrict of Norfolk, 340 F.3d 605 (8th Cir. 2003), theEighth Circuit rejected an Establishment clauseclaim brought against the School District forallowing a member of the school board (who was alsothe parent of a graduating student) to recite a prayerat the graduation ceremony. Id. at 611. The schooldistrict argued that it did not sponsor the speechbecause the board member acted in his personalcapacity by invoking his right to speak under an

22

informal school policy. That policy allowed "(1) aparent of a graduating senior; and (2) a member ofthe School Board" to speak at graduations as ofright. Ido (footnote omitted). The court reasonedthat under these facts, the Board member was actingon his own and his views could not be attributed tothe school; therefore Weisman and Santa Fe did notrequire censorship.9

There is a direct tension between the lawapplied in the Eighth and Eleventh Circuit casescited above and the Ninth Circuit’s decision in thiscase. This case involved a student speech that wasone of many speeches at the graduation ceremony bystudents selected on the basis of neutral criteria.The precedents relied on by the Ninth Circuitincorrectly conflate principles that apply to prayerwith those that apply to speech. Prayer by definitioninvites an immediate and participatory, oftenritualistic, audience response which the Court hasheld to be coercive when mandated by the State. AsJustice Kennedy wrote for the majority in Weisman:"The prayer exercises in this case are especiallyimproper because the State has in every practicalsense compelled attendance and participation in an

9 Recently the Tenth Circuit in Corder v. Lewis PalmerSchoolDistrict No. 38, No. 08"1293, 2009 WL 1492547 (10thCir. May 29, 2009), upheld a school’s decision to censor astudent’s graduation speech based on its religious content.Id, at "12, 6. However, this holding is inapplicable to thecurrent matter for two reasons: (1) the EstablishmentClause issues in the current matter were not before theCorder court, and (2) the school addressed the free speechclaim under the Hazelwood standard that is inapplicable tothe case at bar for reasons explained infra. Id.

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explicit religious exercise at an event of singularimportance to every student, one the objectingstudent had no real alternative to avoid." Weisman,505 U.S. at 598.

But a speech does not constitute a "religiousexercise" simply because it has a religiousorientation.1° In the present case, the SchoolOfficials did not censor Brittany because her speechwas a religious exercise akin to prayer; theycensored her speech because it was closely identifiedwith the Christian religion and because shesuggested that, as with her experience, audiencemembers might benefit from a relationship withChrist. This suggestion required no one to do

10 We do not address "" and this Court need not address --

whether and when student-initiated proselytizing religiousspeech is so akin to prayer that it should be analyzed assuch. As anyone who has observed religious speech knows,there is a wide spectrum of what might be termedproselytizing. To be sure, some types of proselytizing speechwill, like prayer, invite an immediate and participatoryresponse, perhaps requiring audience members to convert onthe spot and come forward. But other forms of religiousspeech, described by some as proselytizing invite reflectionrather than an immediate participatory response. Forexample, a speaker might recite a parable from whichlessons can be drawn or tell the audience that conversioncan be a life-changing event from which they have drawnbenefits. These distinctions are not relevant here for tworeasons. First, Brittany’s speech (as well as Janelle’s)clearly was personal and not reasonably attributed to theSchool. Second, no one has suggested that Brittany’s speechinvited an immediate and participatory audience responsethat rendered it akin to the prayer that this Courtprohibited in Weisman.

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anything; nor was it significantly different from thesuggestions advanced by Janelle or the otherspeakers who, from each of their own perspectives,challenged students in a similar fashion.

Brittany’s speech, based on its content andcontext, and viewed in light of the school policyagainst restricting student-promulgated speech, wasmore akin to the policy and event approved in Ad]erand the perceptions justifying non-intervention inthe Norfolk case.

The Court should grant certiorari and clarifythat student-initiated speeches at graduation,written by the student without any direction by theschool to include a religious message, do not violatethe Establishment clause.

If the Ninth Circuit’s reading of Woisman andSanta Fe is not overruled, future graduationspeeches by students in that Circuit and otherCircuits that choose to follow its precedent will beunable to speak with a particular religiousviewpoint, even if that viewpoint is critical to thetopic on which they are asked to speak. Thesilencing of personal but sectarian religiousexpression is inconsistent with the FirstAmendment, this Court’s jurisprudence and theprinciples that underlie our nation’s founding.Moreover, such an indiscriminate result wouldrequire the State to distinguish between differentmessages given by different students and selectivelyprohibit religious messages. Far from protectingagainst Establishment clause violations, such aresult would foster just such violations.

In determining whether student-initiatedspeech violates the Establishment clause, Weismanand ~’anta Fe suggest the proper focus is to examinewhether the student was selected to speak based onneutral criteria and whether the school districtdirected or otherwise provided the content for thestudent’s speech. If the speech was student-initiated, primarily penned by the student, and theschool did not specifically direct or provide forreligious content, then the speech -- whethersectarian or not "" should not be considered asschool’sponsored speech,n

Indeed, in Weisman, Justice Souterenvisioned such a circumstance. In his concurringopinion (joined by Justices Stevens and O’Connor),he stated:

If the State had chosen its graduationday speakers according to whollysecular criteria, and if one of thosespeakers (not a state actor) hadindividually chosen to deliver areligious message, it would have beenharder to attribute an endorsement ofreligion to the State.

n Similarly, if a school requires a student to follow non-sectarian directions when drafting the speech (as it did forBrittany) and the student personally chooses to deliver areligious speech within the bounds of those directions, thefact that the school had provided non-sectarian directionsdoes not transform the speech into state’sponsored religiousspeech.

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Woisman, 505 U.S. at 630, n.8.12

Brittany’s case represents what Justice Souterenvisioned. The School did not invite Brittany todeliver a religious speech, and certainly did notrequest her to recite a prayer; nor was her speech aprayer. The School simply told her to write agraduation speech and provided only "suggestions,"which specifically erected a barrier between thecontent of her speech and the views of the District.It is hard to imagine what more the School couldhave done to dispel the notion that it endorsed thestudents’ speeches. (Of course, the School could haveprovided a written disclaimer, which its regulationsexpressly contemplated).

lz The guidance offered by the Secretary of Educationunder the federal Elementary and Secondary Education Actof 1965 ("ESEA"), as amended by the No Child Left BehindAct of 2001, 20 U.S.C. § 6301, et seq. (2001), is to the sameeffect, advising that "[w]here students or other privategraduation speakers are selected on the basis of genuinelyneutral, evenhanded criteria and retain primary controlover the content of their expression ... [then] that expressionis not attributable to the school and therefore may not berestricted because of its religious (or anti’religious) content."Guidance on Constitutionally Protected Prayer in PublicElementary and Secondary Schools, Dep’t. of Educ.,(http ://www.ed. gov/policy/gen/guid/religionandschools/p rayer_guidance.html) (last visited 6/16/09). The Clark CountyDistrict Regulation 6113.2 governing Brittany McComb’sgraduation speech is virtually identical to the federalguidance. See (App. 3.)

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be The School Officials ViolatedBoth the Estabhshment and FreeSpeech Clauses

The School Officials not only had noEstablishment clause justification to censorBrittany’s speech, they in fact violated that clause byfavoring one type of religious speech over another.In selection of permissible and impermissiblereligious speech, the school district allowed anotherstudent -- Janelle -- to deliver a clearly religiousmessage presumably because, in its view, Janelle’swas more acceptable.13

Weisman, applied appropriately, prohibits aschool district from treating one form of religion --even if "civic" or "nonsectarian" -- more favorablythan sectarian religion. In that case, the schoolargued that the benediction and invocation shouldhave been permitted because they were"nonsectarian." In rejecting that argument, theCourt emphasized "that the intrusion was in thecourse of promulgating religion that sought to be

13 The record is not clear at this stage on how SchoolOfficials distinguished between the two speeches. It is clearthat the censor’s pen objected to Brittany’s speech because it"IDENTIFIES A PARTICULAR RELIGION," "DEITY," and"PROSELYTIZING." Janelle’s speech, however, similarlymentioned a deity, her "Heavenly Father," and spoke ofprayer and other practices that identified it with Judeo-Christian concepts of religion. We also know that this Courthas never held that religious speech becomes "endorsed" andsubject to censorship simply because it is proselytizing.Indeed, neither the School Officials, nor the Ninth Circuitset forth any standards other than the unexplained briefreferences described in the text. (App. 6.)

28

civic or nonsectarian rather than pertaining to onesect does not lessen the offense or isolation to theobjectors. At best it narrows their number. At worstit increases their sense of isolation and affront."Weisman, 505 U.S. at 594.

The principle this Court articulated inWeisman "" that religious speech is religious speech -

apparently is not always heeded by the lowercourts and certainly not by the Ninth Circuit here.Religious speech may not be treated moreprotectively if it is non-denominational, nonsectarianor comports with a government official’sunderstanding or belief of what is an approved oruncontroversial "civic religion." Yet the SchoolOfficials here did precisely what Weisman prohibited-- they permitted a student-initiated religious speechsolely because it was nonsectarian. Of course, inPetitioners’ view, both Janelle and Brittany engagedin constitutionally protected speech. But if theSchool Officials truly believed that the Schoolretained primary control over student-initiated,student-composed graduation speeches and that thestudents’ speeches therefore reasonably would beviewed as endorsed by the School, the appropriateresult would have been to silence both Brittany andJanelle.

The specter of secular school officials makingjudgments about what religious speech isnonsectarian (and presumably non-threatening) andwhat is sectarian and proselytizing not only presentsquestions of equal protection of the law underLarson v. Valente, 456 U.S. 228, 238-39 (1982), italso runs head-on into Lemon v. Kurzman’sprohibition against the government’s "excessive

29

entanglement" in religion. 403 U.S. 602, 612-13(1971). School officials will be expected to draw finelines of a religious nature each time they review astudent speech. This Court made clear over sixdecades ago that "[i]f there is any fixed star in ourconstitutional constellation, it is that no official, highor petty, can prescribe what shall be orthodox inpolitics, nationalism, religion, or other matters ofopinion or force citizens to confess by word or acttheir faith therein." West Virginia State Board o£Education v. Barnette, 319 U.S. 624, 642 (1943).Here, parsing students speech for what is or is not"proselytizing," or determining that religious speechis "civic" or nondenominational enough, or judgingwhether mention of a sectarian as opposed to neutral"deity" is offensive, crosses the fabled wall ofseparation between state and religion and isprohibited. School officials are simply not qualified,nor should they be, to make such judgments.

The disparate treatment of Janelle andBrittany also violates the Free Speech clause. SeeRosenberger v. Rector & Visitors o£ The Univ. of VA,515 U.S. 819, 829 (1995) (holding "[w]hen thegovernment targets not subject matter, butparticular views taken by speakers on a subject, theviolation of the First Amendment is all the moreblatant"). Once a school has opened up a forum to acertain type of speech, it "must respect the lawfulboundaries it has itself set." Id. It cannot prohibit aqualified speaker from addressinga subjectotherwise permitted by its own rules.Good NewsClub v. Milford Cent. Seh., 533 U.S.98, 109-10(2001); see also Lamb’~ Chapel v. Center MorichesUnion Free Seh. Dist., 508 U.S. 384, 393-94 (1993)(holding "First Amendment forbids the government

30

to regulate speech in ways that favor someviewpoints or ideas at the expense of others")(citation omitted).

It is axiomatic that "secondary school studentsare mature enough and are likely to understand thata school does not endorse or support student speechthat it merely permits on a nondiscriminatory basis."See Board of Education of Westside Cmty. Schs. 66v. Mergens by and through Mergens, 496 U.S. 226,228 (1990), citing Tinker v. Des Moines IndependentCommunitySehoolDist., 393 U.S. 503, 89 S. Ct. 733,21 L. Ed. 2d 731 (1969) (no danger that high schoolstudents’ symbolic speech implied schoolendorsement); Barnette, 319 U.S. at 624 (1943), andNote, The Constitutional Dimensions of Student-Initiated Religious Activity in Public High Schools,92 Yale L.J. 499, 507-509 (1983) (summarizingresearch in adolescent psychology). The SchoolDistrict’s own regulation recognized this non-endorsement principle.

Co Confusion Among the CircuitsRegarding ViewpointDiscrimination

Assuming that the School Officials couldargue that it restricted Brittany’s speech because itwas school-sponsored and advanced legitimate"pedagogical" concerns, there exists a conflict amongthe Circuits regarding the extent to which a schoolcan engage in viewpoint discrimination whenenforcing such restrictions under Hazelwood.

In Haze]wood, the Court broadly pronouncedthat "educators do not offend the First Amendment

31

by exercising editorial control over the style andcontent of student speech in school-sponsoredexpressive activities so long as their actions arereasonably related to legitimate pedagogicalconcerns." Id. at 273 (footnote omitted). The Courtdid not address what level of scrutiny the lowercourts need to apply when reviewing a school’srestriction of speech for these "pedagogicalconcerns," but Justice Brennan noted in dissent theschool’s concession that any distinctions on speech itdrew were required to be viewpoint-neutral. Id. at287, n.3 (Brennan, J. dissenting).

Some Circuits, however, have read ttazelwoodas establishing solely a rational basis standard forspeech in the public school setting. See Fleming v.Jefferson County Seh. Dist. R-l, 298 F.3d 918, 926-29 (10th Cir. 2002) (holding "pedagogical test issatisfied simply by the school district’s desire toavoid controversy within a school environment");Ward v. Hiekey, 996 F.2d 448, 454 (1st Cir. 1993)(stating that Hazelwood Court "did not require thatschool regulation of school-sponsored speech beviewpoint neutral"); C.H. ex tel. ZH. v. Oliva, 195F.3d 167, 172-73 (3d Cir.) (holding "Hazelwoodclearly stands for the proposition that educators mayimpose non-viewpoint neutral restrictions on thecontent of student speech in school-sponsoredexpressive activities so long as those restrictions arereasonably related to legitimate pedagogicalconcerns"), vacated & reh’g on bane granted, 197F.3d 63 (3d Cir. 1999).

Other courts have required a school’srestriction not onlyto be reasonable, but alsoviewpoint’neutral. See Peek ex tel. Peek v.

32

Balclwinsville Cent. Sch. Dist., 426 F.3d 617, 626,629-30, 633 (2d Cir. 2005) (concluding that "amanifestly viewpoint discriminatory restriction onschool-sponsored speech is, prima facie,unconstitutional, even i£ reasonably related tolegitimate pedagogical interests") (emphasis inoriginal); Searcey v. Harris, 888 F.2d 1314, 1320, n.7(llth Cir. 1989) (holding that "[a]lthough theSupreme Court did not discuss viewpoint neutralityin Hazelwood, there is no indication that the Courtintended to drastically rewrite First Amendment lawto allow a school official to discriminate based on aspeaker’s views").

Even though the latter view has been adoptedby the Ninth Circuit (see Planned Parenthood o£Southern Nevada, Inc. v. Clark County SchoolDistrict, 941 F.2d 817, 829 (9th Cir. 1991)) theSchool Officials in the current matter chose not toemploy viewpoint-neutral criteria when censoringBrittany’s speech. Rather than banning all religiousspeech at the graduation ceremony, the Schoolfaulted Brittany’s speech for "IDENTIFIES APARTICULAR RELIGION," "DEITY," and"PROSELYTIZING." (App. 6.)

In Cole and Lassonde, the Ninth Circuit ruledthat "proselytizing, no less than prayer, is a religiouspractice." Cole, 228 F.3d 1104, citing Follett v. Townof McCormick, 321 U.S. 573, 576"77 (1944), andMurdock v. Pennsylvania, 319 U.S. 105, 108-10(1943).TM On its face, this self-evident proposition

14 In FolIett, the defendant was ’"preaching the gospel’ by

going ’from house to house presenting the gospel of theFootnote continued on next page

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hardly seems disputable. But to analogize coercedprayer and door-to-door religious solicitation with astudent-initiated graduation speech on a permittedtopic that is not inherently religious raises a host ofconstitutional difficulties. First, prayer and one-on-one religious solicitation indisputably demand apersonal response. But a speech at a public event, inthe context of multiple speeches from multipleperspectives, may be challenging, but does notrequire such a personal response. What then are thestandards for proselytizing? When does a speechbecome proselytizing? Can non’religious speech beproselytizing and, if so, why should religious speechbe treated differently? If students are asked tospeak about their values, is it permissible to coercethem to misrepresent their viewpoints when theirvalues are religiously based, or to deny them thehonor and benefit of speaking because of theirreligious viewpoints?

The Ninth Circuit -- in a one-page summarydisposition "- did not elaborate as to what standardsit applied to Brittany’s speech, holding simply thatthe School Officials did not discriminate becausethey "did not allow other graduation speakers toproselytize" (App. 1-2). Allowing schools to

Footnote continued from previous pagekingdom in printed form.’" Follett at 576. And in Murdoek,the defendants were claiming "to follow the example of Paul,teaching ’publicly, and from house to house.’ Acts 20:20."Murdock at 108. The Court recognized this as "an age’oldform of missionary evangelism" where "colporteurs carry theGospel to thousands upon thousands of homes and seekthrough personal visitations to win adherents to their faith."Id.

haphazardly censor speech in this manner with theindiscriminate application of the "proselytizing"label, corrupts the purposes of both the Free Speechand Establishment clauses. If the Ninth Circuitruling is sustained, schools would effectively havefree license to choose exactly which religious contentwill be given a voice at school ceremonies, as theydid in this case.

o Allowing an Appellant to IndefinitelyToll the Time To File an InterlocutoryAppeal Would Render Rule 4Meaningless

Petitioners request the Court to alleviateconfusion among the lower courts regarding theinterpretation of the 30-day jurisdictional limitationof Rule 4 of the Federal Rules of AppellateProcedure. FED. R. APP. P. 4(a)(1)(A) (requiring aparty to file a "notice of appeal ... with the districtcourt within 30 days after the judgment or orderappealed from is entered").

In the matter before the Court, the SchoolOfficials failed to file their interlocutory appealwithin the 30-day jurisdictional limit required underRule 4. Instead, after the District Court denied theSchool Officials’ motion to dismiss, the SchoolOfficials filed a near-identical motion to dismiss,raising no new issues.15 It was not until the District

15 The School Officials filed the renewed motion to dismiss

in response to Brittany’s First Amended Complaint.However, the District Court found that the AmendedComplaint contained no substantive changes, whichaccounts for its further conclusion that the School Officials’

Footnote continued on next page

Court dismissed this second motion to dismiss, fivemonths later, that the School Officials filed theirinterlocutory appeal.

The lower court, relying on Knox v. SouthwestAirlines, 124 F.3d 1103, 1106 (9th Cir. 1997), heldthat an appellant was permitted to toll the clock inthis manner. However, this ruling does not comportwith other Circuits’ interpretation of Rule 4’sjurisdictional requirement.

Phillips v. Montgomery County, 24 F.3d 736(5th Cir. 1994), is a case similar to the instant one.There, as here, the District Court denied thedefendants’ motion to dismiss on qualified immunitygrounds. Id. at 737. There, as in the present case,the plaintiffs filed an amended complaint that was"identical to the [previous] complaint except that oneplaintiff had been eliminated and two new ones hadbeen added." Id. There, as here, defendants filed asecond motion to dismiss. Id. When the DistrictCourt again denied the motion "[b]ecause defendantsha[d] not provided any new grounds to dismiss," thedefendants noticed an appeal of the District Court’ssecond order. Id. Because the Notice of Appeal wasnot filed within 30 days of the original Order, theFifth Circuit dismissed the appeal. Id. at 737. Thecourt explained: "defendants may not fail to appealan order denying them immunity and then restartthe 30-day clock by re filing the same motion." Id.(citations omitted). A second motion, the court

Footnote continued from previous pagerenewed motion contained no new arguments.2007 Order (App. 65.)

See Jun. 18,

concluded, does not interrupt the 30-day period toappeal "where the second motion raises substantiallythe same grounds as urged in the earlier motion."Id. at 738 (citation omitted); see also Armstrong v.Texas State Board of Barber Exam’rs, 30 F.3d 643,644 (5th Cir. 1994) (holding that an additionalmotion to dismiss an amended complaint broughtbefore the start of discovery will not restart the clocksince such a motion "is primarily a vehicle to test thesufficiency of pleadings as to qualified immunity").

The First, Eighth and Eleventh Circuits havesimilarly rejected attempts by appellants to evadethe 30-day time limit by filing and "appealing"motions substantively identical to those alreadyrejected by the trial court. See Pruott v. ChoctawCounty, A]a., 9 F.3d 96, 97 (llth Cir. 1993) (holdingthat defendants could not appeal from the DistrictCourt’s denial of a second motion since "the districtcourt did not ... take any other steps indicating thatit had reopened the immunity issue ... [but] [r]ather... determined that there was no cause to revisit itspreviously entered order"); Taylor v. Cater, 960 F.2d763, 764 (8th Cir. 1992) (holding that a defendantmay not "repeatedly file the same motion with adistrict court thereby starting a new clock runningfor the purposes of appeal"); Fisieholli v. City KnownAs Town o£Mothuen, 884 F.2d 17, 19 (lst Cir. 1989)(holding that defendants may not restart the clockby filing a second, identical motion). This rulemakes sense on practical grounds and from thestandpoint of judicial economy. As the EighthCircuit explained in Taylor’.

If we were forced to entertainappeals.., whenever a defendant had

37

unsuccessfully sought reconsideration,the district court’s trial calendarwould be bemired; Rule 4(a)(1) wouldbe stripped of all meaning; theuncertain business of qualifiedimmunity would be made measurablymore problematic; and a dilatorydefendant would receive not only hisallotted bite at the apple, but aninvitation to gnaw at will.

Taylor, 960 F.2d at 764 (citations omitted).

II. CONCLUSION

The petition for a writ of certiorari should begranted.

Respectfully submitted,

Anand Agneshwar- Counsel o£RecordVijay BaligaARNOLD & PORTERLLP399 Park AvenueNew York, NY 10022Tel: (212) 715-1000

James J. KnicelyKNICELY &ASSOCIATES, P.C.487 McLaws CircleSuite 2Williamsburg, VA 23185Tel: (757) 253-0026

Douglas H. ClarkLAW OFFICES OFDOUGLAS H. CLARK,P.C.2595 South Torrey PinesDriveLas Vegas, NV 89146Tel: (702) 388-1333

John W. WhiteheadDouglas R. McKusickTHE RUTHERFORDINSTITUTE1440 Sachem PlaceCharlottesville, VA22906Tel: (434) 978-3888

Co unsel for Pe tition

June 18, 2009

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