Honorable Thomas S. Zilly: 2:14-cv-01762-TSZ

Case 2:14-cv-01762-TSZ Document 25 Filed 01/05/15 Page 1 of 14
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Honorable Thomas S. Zilly
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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON
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MICHAEL LEAL,
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Plaintiff,
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vs.
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EVERETT PUBLIC SCHOOLS, GARY
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COHN, in his individual and official capacities )
as Superintendent of Everett Public School,
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CATHY WOODS, in her individual and
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official capacities as Principal of Cascade High )
School, LAURA PHILLIPS, in her individual )
and official capacities as Assistant Principal of )
Cascade High School, ROBERT AGUILAR, in )
his individual and official capacities as
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Assistant Principal of Cascade High School,
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and DOES 1 THRU 100,
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Defendants.
Case No.: 2:14-cv-01762-TSZ
MEMORANDUM OF POINTS AND

AUTHORITIES IN REPLY TO
DEFENDANT OPPOSITION TO MOTION
FOR PRELIMINARY INJUNCTION
Noting Date: January 9, 2015
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_____________________________________________________________________
MEMORANDUM OF POINTS & AUTHORITIES IN REPLY TO DEFENDANTS
OPPOSITION TO MOTION FOR OF PRELIMINARY INJUNCTION -Case No. 2:14-cv-01762-TSZ
PJI
P.O. Box 276600

Sacramento, CA 95827
(916) 857-6900
INTRODUCTION & SUMMARY OF THE ARGUMENT
The Defendants Opposition1 to Michael Leals preliminary injunction motion brings into
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sharp focus the diametrically opposed views the parties have of their respective constitutional
rights and obligations. At its core, EPS believes students First Amendment rights can be broadly
circumscribed on campus. This Reply will demonstrate that position, and EPSs corollary policies
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and procedures, are irreconcilable with governing jurisprudence.
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LEGAL ARGUMENT
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I.
A Facial Challenge is entirely appropriate
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Leal has challenged school rules that impose tight restrictions on literature distribution,
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except when the superintendent, in his sole and standardless discretion, allows greater freedom.
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Although EPS has not seriously contested Leals ability to pursue a facial challenge, the Courts
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concerns as to the propriety of such a challenge merit discussion as a threshold matter.
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Facial challenges are especially appropriate where a rule vests unbridled discretion in an
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official. Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988). The Supreme Court explained
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the appropriateness of facial challenges in such contexts at length, holding that, even where a
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mode of communication could be prohibited entirely, vesting unbridled discretion in an official to
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grant or deny permission for that mode of speech rendered it an invalid prior restraint. No
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presumption of good faith is given an official who makes standardless decisions. [O]ur cases
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have long held that, when a licensing statute allegedly vests unbridled discretion in a government
official over whether to permit or deny expressive activity, one who is subject to the law may
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For ease of reference, this brief refers collectively to the Defendants as Everett Public Schools (EPS).
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challenge it facially without the necessity of first applying for, and being denied, a license. Id. at
755.
The facial validity of a provision is considered separately from the question of whether the
plaintiff has caused an actual disruption. Acosta v. Costa Mesa, 718 F.3d 828 (9th Cir. 2013)
(reinstating facial challenge even though plaintiff had been determined by a jury to have been
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disruptive). Although EPS has attempted to introduce evidence of disruption into its Opposition,
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see accompanying Objections to Declarations, the instant Motion must be evaluated separately
from the question of whether Leal was actually disruptive.
The motion before the Court is a more appropriate facial challenge than was presented in
Broadrick v. Oklahoma, where litigants conceded that their own conduct was proscribable but
argued that the statute was unconstitutional as to others conduct not before the court. What makes
this case and motion unusual is the uncommon degree to which EPS has unapologetically imposed
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prior restraints and exerted unbridled discretion over student speech.

In Wash. State Grange v. Wash. Republican Party, 552 U.S. 442 (2008), the Supreme
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Court considered a facial challenge to the states top two primary system. The Court rejected
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the challenge because the law had not yet been implemented and the Court felt that it was entirely
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possible it could be applied in a manner that would not implicate the political partys speech in the
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ways that it asserted. The challenge was filed outside the context of a particular election, and the
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Court therefore deemed the claims to be speculative.

The concerns identified by the Court do not exist in this case, where Leal has already
suffered suspension under the challenged rules, and EPS has offered an unequivocal and
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unambiguous interpretation of those rules that Leal asserts are plainly unconstitutional. A facial
challenge is therefore entirely appropriate.
II.
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Notwithstanding EPSs reliance on non-binding authorities, governing law renders it

highly likely that Leal will ultimately prevail on the merits of his facial challenge.
A.
Defendants claim that Tinker does not apply to this case is astounding and
unsupportable.
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To justify the jarring facial contradiction between its own rules and the single most-quoted
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axiom in free speech school law, ESP takes the extraordinary position that Tinker v. Des Moines
Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), does not apply to this case. EPS Opp. at 7-8.
EPS is either unable to grasp, or unwilling to accept, the sweeping implications of Tinker.
School officials might wish they possessed the near-total authority of a 19th-century headmaster,
and they would perhaps have found nods of agreement from the dissenters in Tinker. In more
recent years, though, the only member of the High Court to cling to such a position appears to be
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Justice Thomas. Morse v. Frederick, 551 U.S. 393, 410 (2007) (Thomas, J., concurring). Quite
simply, EPS is operating under a premise that has not been the law for nearly half a century.
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The reality is that Tinker fundamentally altered the relationship between public schools
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and their students. The Ninth Circuit certainly does not think Tinker has limited application; it
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noted, Tinker swept broadly in its protection of students' first amendment rights while its
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description of exceptional situations justifying interference was narrow. Burch v. Barker, 861
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F.2d 1149, 1153 (9th Cir. 1988).

In the last few decades, the Court has clarified that, beyond substantial disruptions, the
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exceptional circumstances justifying speech restriction include vulgar speech, pro-drug speech,
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school-sponsored publications but little else. Bethel Sch. Dist. No. 403 v. Fraser; Hazelwood v.
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Kuhlmeier; Morse v. Frederick. Even decisions siding with school or local authorities regard
Tinker as the touchstone, and its sweeping principles are the starting point for any analysis in
this arena. Grayned v. City of Rockford, 408 U.S. 104, 115 (1972).
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EPS must distance itself from Tinker because its policies are so incompatible with the
letter and spirit of that decision. There is simply no straightforward reading of its four-pronged
restriction of student literature that does not call to mind and contradict Tinkers decree that
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students constitutional rights do not end at the schoolhouse gate. Tinker, 393 U.S. at 506.
Compounding its error, is Defendants insistence that the lessons of older cases such as
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Murdock v. Pennsylvania and Cantwell v. Connecticut should be disregarded is inexplicable in
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light of the Courts reliance on those and other non-school cases as the logical building blocks for
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Tinker and by extension every school speech case that has followed since. Indeed, the older
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speech and literature cases define the constitutional rights that students retain when they step on
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campus. One of these long-established rights is the distribution of religious tracts such as the ones
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Leal has been prohibited from handing to fellow students. Murdock, 319 U.S. 105, 108 (1943)
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(The hand distribution of religious tracts is an age-old form of missionary evangelism, as old as
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the history of printing presses.)
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ESPs refusal to accept Tinker as the starting point for a student First Amendment case
betrays the fault line beneath all of its ensuing arguments. The present case cannot be understood
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apart from Tinker, just as Tinker cannot be understood apart from the non-school speech and
literature cases preceding it.
B.
The Ninth Circuit, unlike some Circuits and lower courts, has closely followed
the letter and spirit of Tinker, its predecessors and its progeny.
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Tellingly, ESP is virtually silent as to the governing law in this Circuit, and the
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overarching jurisprudence of the Supreme Court. While EPS has offered some decisions in other
parts of the country offering modest support to its position, it is impossible to square those cases
with the approach mandated here.
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In Burch, the Ninth Circuit expounded at length on the crucial differences between schoolsponsored speech, such as an official student newspaper, and non-school-sponsored student
speech. The Ninth Circuit viewed the Supreme Courts then-recent Hazelwood decision as a
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reaffirmation, not a rejection, of Tinkers central premise that officials may interfere with high
school students First Amendment rights to communicate with each other only in narrowlydefined circumstances. Id. at 1150.
The Ninth circuit began its inquiry where EPS should have started here with a strong
presumption in favor of student rights. Tinker cautioned that before deciding that school
interference is warranted courts should look to concrete evidence of disturbance or disruption
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resulting or potentially resulting from specific expression. Id. at 1153. The court therefore held
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that school officials unconstitutionally restricted the non-school-sponsored speech. The Ninth
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Circuit reiterated its understanding of the centrality of Tinker in Chandler v. McMinnville Sch.
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Dist., holding that student speech not governed by a specific exception, such as those at issue in
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Hazelwood or Bethel, would be governed by Tinker.
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Remarkably, EPS seems to have read Burch and Chandler backwards, concluding that
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materials not specifically at issue in the most recent cases (such as underground student
newspapers) can be flatly banned on campus. Utterly lost on EPS, yet incorporated into the school
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realm by Tinker, is The Supreme Courts admonition, set forth in Lovell v. Griffin and repeated
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many times since, that a pamphlet or leaflet is just as constitutionally protected as a newspaper or
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periodical. Pamphlets and leaflets indeed have been historic weapons in the defense of liberty, as
the pamphlets of Thomas Paine and others in our own history abundantly attest. Lovell v. Griffin,
303 U.S. 444, 452 (1938).
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As a factual matter, the underground newspaper at issue in Burch included both studentwritten work as well as classic American poetry such as the writings of Langston Hughes and
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Stephen Crane. Id. at 1150. The court drew no distinctions between the sources of the writings,
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nor could it do so based on its own or the Supreme Courts jurisprudence. Later, in Morse v.
Frederick, 439 F.3d 1114 (9th Cir. 2006), revd on other grounds, the Ninth Circuit offered three
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examples of students seeking to distribute literature, all of them involving books or articles written
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by others. EPSs rules would also bar anonymous leaflets and pamphlets, in violation of
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longstanding precedent confirming the historical importance of such works. See, e.g., Talley v.
California, 362 U.S. 60 (1960) (striking down as facially unconstitutional a Los Angeles
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ordinance that allowed distribution of handbills only if they included certain identifying
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information about the author or sponsor). It is therefore plain that, in this Circuit Defendants
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prohibition on student distribution of literature written by others cannot survive a facial challenge.
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Against this backdrop, the Seventh Circuits contrary holdings in Hedges v. Wauconda
Sch. Dist., later reiterated in Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530 (7th Cir. 1996), are
unpersuasive. That Circuits paternalistic approach sounds nothing like the Supreme Courts or
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Ninth Circuits approaches. The Seventh Circuit seemed unable to grasp the crucial difference
between school-sponsored and non-school-sponsored speech so well articulated in Burch. Indeed,
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in concurrence, Judge Rovner cited Burch as expounding a more stringent and he believed, better,
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standard than the low bar of reasonableness established by his own Circuit. Id., at 1546.
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The weakness of EPS and the Seventh Circuits position on student-written work is further
illustrated by the incongruity of this reasoning with Tinker and its progeny. For instance, there is
zero indication that Tinker at all turned on whether the armbands were homemade or mass-
produced. Nor did it make the slightest difference to the Ninth Circuit whether the student buttons
worn in Chandler v. McMinnville Sch. Dist., 978 F.2d 524 (9th Cir. 1992), represented the
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original thinking of the students themselves, or were prompted by adults.
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Even cases with opposite outcomes nowhere suggest that they were based on whether the
student speech was original. In Bethel, it mattered not at all that the students speech was
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(apparently) original it was proscribable because it was vulgar. In Hazelwood, the originality of
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the student journalism made no difference in its proscribability. And in Morse, the students
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nonsensical banner was not helped by its originality the only thing that mattered to the Court
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was that it arguably conveyed a pro-drug message, and therefore could be punished.
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C.
Non-binding cases inconsistent with the jurisprudence of this Circuit and the
Supreme Court do not help the EPS.
While the many decisions from other jurisdictions with similar fact patterns are not
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controlling, they can offer insights, particularly when they operate under premises similar to those
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espoused by the Ninth Circuit.

One of the primary areas of disagreement among the Circuits is the role of forum analysis.
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EPS proclaims itself to be a non-public forum, yet it fails to grasp the nuances of forum analysis.
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A school is not a single type of forum for all purposes, and many of the cases invoking forum
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analysis concerned adults or outside entities seeking access to the forum. See, e.g., Perry Local
Educators Assn; Hills v. Scottsdale Unified Sch. Dist. The controlling cases like Hazelwood that
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involved students focused not on the entirety of the campus, but the unique medium of a school
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newspaper, as the forum.

The Ninth Circuit in Birch avoided forum analysis entirely, because the school was
restricting speech that was not school-sponsored. Like the Seventh Circuit, the Sixth Circuit in
M.A.L betrays fundamental differences with the Ninth Circuit that are not easily bridged. The
Sixth Circuit followed the lead of Hedges and Muller, finding additional support in the Fifth
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Circuit (since undermined by Morgan), the Third Circuit (since undercut by K.A.), and the Fourth
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Circuit. The Sixth Circuit found no support for its position in the Ninth Circuit, since Burch
conspicuously took a different path.
Meanwhile, it is noteworthy that the Fifth and Third Circuits have recently shifted away
from the Seventh Circuits approach and have moved closer to the Ninth Circuits view of
expansive student rights. The several different opinions that comprise the en banc majority in
Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2013), include some of the strongest statements to
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date in support of student literature distribution rights. Because these opinions are much more
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aligned with the Ninth Circuit, they carry greater weight here than do non-conforming Circuits. In
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a similar vein, the Third Circuits holdings in K.A, including its rejection of forum analysis, are
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more reflective of the law of this Circuit. Since the decisions of these other Circuits have not
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always traveled in a straight line, older decisions from the Fifth and Third Circuits should be
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treated cautiously more cautiously than has been shown by EPS in its Opposition.
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Ironically, some of the decisions relied on by EPS upheld policies that, if actually enacted
by EPS, would offer greater freedom to Leal. For instance, in M.A.L. v. Kinsland, 543 F.3d 841
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(6th Cir. 2008), the Sixth Circuit upheld a policy restricting literature distribution in the hallway of
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a middle school. Much of the Courts reasoning derived from the facts that the student was
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allowed to distribute his leaflets during lunchtime in the cafeteria, he was allowed to post them on
a bulletin board, and the court construed the policy so as not to inhibit at all the handing of a single
piece of literature to another student akin to passing a note the exact conduct that prompted
Leals most recent five day suspension. EPS actually emphasizes the greater restrictiveness of BP
3222 and 3222P, which applies even to innocuous social invitations. EPS Opp. at 10 (citing
Woods Decl.). The well-defined standards governing the principals review of literature
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distribution requests in M.A.L. also stands in stark contrast to the standardless discretion embodied
in BP 3222 and 3222P. Even the policy at issue in Hedges did not impose an outright ban on
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literature written by others that prohibition kicked in when the student had 10 or more such
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pieces of literature to distribute. In short, had these less restrictive policies relied on by EPS
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actually been adopted by them, it is likely Leal would not be facing expulsion and would not
presently be before this Court.
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Even if forum analysis were employed, Leal does not at all concede that the policy is
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content-neutral. EPS admits, as it must, that one of the indications a policy is not neutral is when
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restrictions are speaker-based. EPS Resp. at 10. By prohibiting Leal from adopting the speech of
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other writers as his own, EPS has indeed created unjustifiable speaker-based limitations.
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Nor can EPS save its policies simply by declaring them to be time, place and manner
restrictions. Even assuming ESP is correct in declaring itself a non-public forum (which it is not),
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closing off the entire interior of a large campus to a fundamental form of expression is not
reasonable. Besides clashing directly with Tinker, the limitation to entrances and exits, before and
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after school closes off both a large physical space and most of the hours when students would be
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present. This sweeping prohibition on literature distribution within the large interior of the
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campus is indistinguishable from the blanket prohibitions struck down in J.S. v. Holly Area Schs.,
749 F.Supp.2d 614, 629 (E.D. Mich. 2010) and Westfield High Sch. L.I.F.E. Club v. City of
Westfield, 249 F.Supp.2d 98, 128 (D.Mass. 2003) The attempt to argue that Leal has ample
opportunities because he can stand at entrances and exits is illusory, since EPS already cannot
close off the exterior of it schools to expressive activities. Grayned v. City of Rockford, 408 U.S.
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104 (1972).
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While Leal does not believe that his rights as a student on campus during non-instructional
time are subject to equal or greater restrictions than are expressive rights in post-9/11 airports, the
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Ninth Circuits most recent exposition on this subject is instructive. In Intl Socy for Krishna
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Consciousness of Cal. V. Los Angeles, 764 F.3d 1044 (9th Cir. 2014), the Ninth Circuit upheld
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certain restrictions on solicitation at LAX, in large part because the ordinances made no attempt to
restrict distribution of flyers, pamphlets, and the like. EPSs reliance on earlier decisions in this
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type of forum only undermines its position.

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Associational rights do not replace individual rights.
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Nor can EPSs offer of limited associational speech rights substitute for the loss of
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antecedent individual speech rights. Defendants proffer that, as an individual, Leal possesses no
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on campus leafleting rights, but may exercise such rights by joining or forming a student club.
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EPS Opp. at 6-7, 15. The view essentially entails the notion that unnatural persons (i.e., student
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clubs) have speech rights superior to natural persons. Until the Supreme Court settled the matter
four years ago, debate raged as to whether and to what extent corporate entities had any speech
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rights. Citizens United v. FEC, 558 U.S. 310 (2010). Ironically, EPS takes the position that the
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First Amendment requires what it barely allows, namely, that speech rights must be exercised
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through associations of persons rather than the persons themselves. In contrast, the Supreme Court
has determined that the concept that Government may restrict the speech of some elements of
United States society in order to enhance the relative voice of others is wholly foreign to the First
Amendment. Id., 558 U.S. 350.
III.
ESP has not meaningfully rebutted Leals contentions as to irreparable harm,
balance of hardships, and the public interest.
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Defendants contention as to irreparable harm, balance of hardships and the public interest
add little to their arguments on likelihood of success on the merits, see EPS Opp. at 21 (reinvoking Morgan, Hedges and M.A.L.), but a few of their points merit further attention.
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Mystifyingly, EPS argues that granting Leal an injunction as to his facial challenge will
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insulate him from enforcement of school rules, leading to a general breakdown of order and
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discipline. EPS Opp. at 21-23. The first notion is misleading, since Leal would remain subject to
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the vast majority of school rules. He could still, for instance, be disciplined for talking during
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instructional time (though a five day suspension such as he has already experienced would be
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clearly excessive for such a minor and ubiquitous infraction). The remainder of EPSs concerns
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that any deviation from the rules would cause a breakdown in order are reminiscent of the
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hyperbolic arguments rejected in Tinker. Similar arguments were also rejected by the Third
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Circuit in K.A., where the court noted that the school retained the ability to regulate literature
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distribution under Tinkers substantial disruption standard. K.A., 710 F.3d at 113-14. As a result,
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EPS has failed to overcome the axiom that It is always in the public interest to prevent the
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violation of a partys constitutional rights. J.S. v. Holly Area Schs., 749 F.Supp.2d 614, 629
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(E.D. Mich. 2010)
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Finally, EPS reliance on Requa v. Kent Sch. Dist. No. 415, 492 F.Supp.2d 1272
(W.D.Wash. 2007) is greatly misplaced but an ironically fitting conclusion for this discussion.
EPS latches on to Requa because it denied a TRO to a student facing extended suspension after
posting video to YouTube that had been filmed surreptitiously during class and was both
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childishly demeaning and sexually harassing of his teacher. Notwithstanding these sobering facts,
this Court was not unsympathetic to the pupils concern about missing the last few weeks of his
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senior year of high school. On the whole, though the Court found that the Kent School Districts
interests in protecting its teachers from sexual harassment outweighed the plaintiffs interests.
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EPS apparently did not read the part of the opinion where this Court started its analysis with what
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it called the Magna Carta of student expression Tinker. The Court proceeded with exactly the
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same approach EPS now seeks to dissuade the Court from using, determining that absent a Bethel
or Hazelwood scenario, the catch-all rubric of Tinker must be applied. Id. at 1280. The
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substantial disruption this Court found in Requa is not even claimed by EPS here, nor could it be.
CONCLUSION
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This Motion ends where it began with Tinker. Under that well-established standard, EPS
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cannot come close to demonstrating the disruption necessary to justify its sweeping restrictions on
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student speech. While EPS would have a stronger position if it were located in certain other
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jurisdictions, it cannot hope to justify BP 3222 and 3222P under the law of this Circuit. For these
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reasons, a preliminary injunction should be granted to enjoin the challenged rules and restore the
balance envisioned by Tinker.
Dated: January 5, 2015
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By: /S/ Conrad Reynoldson

/S/ Matthew McReynolds
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/S/ Kevin Snider_____________________

Conrad Reynoldson, WASB 48187
4421 51st Ave, NE
Seattle WA, 98105-4932
Tel.: (425) 246-8868
E-mail: conrad3445@gmail.com
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Kevin T. Snider, CA SBN 170988*

Matthew B. McReynolds CA SBN 234797*
PACIFIC JUSTICE INSTITUTE
P.O. Box 276600
Tel.: (916) 857-6900
Fax: (916) 857-6902
E-mail: ksnider@pji.org
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Attorneys for Plaintiff
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*pro hac vice

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Honorable Thomas S. Zilly: 2:14-cv-01762-TSZ

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Case 2:14-cv-01762-TSZ Document 25 Filed 01/05/15 Page 1 of 14

Honorable Thomas S. Zilly

IN THE UNITED STATES DISTRICT COURT

Case No.: 2:14-cv-01762-TSZ

MEMORANDUM OF POINTS AND

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INTRODUCTION & SUMMARY OF THE ARGUMENT

A Facial Challenge is entirely appropriate

concerns as to the propriety of such a challenge merit discussion as a threshold matter.

mode of communication could be prohibited entirely, vesting unbridled discretion in an official to

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prior restraints and exerted unbridled discretion over student speech.

Court therefore deemed the claims to be speculative.

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challenge is therefore entirely appropriate.

Notwithstanding EPSs reliance on non-binding authorities, governing law renders it

F.2d 1149, 1153 (9th Cir. 1988).

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Murdock v. Pennsylvania and Cantwell v. Connecticut should be disregarded is inexplicable in

the history of printing presses.)

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with the approach mandated here.

Hazelwood or Bethel, would be governed by Tinker.

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303 U.S. 444, 452 (1938).

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espoused by the Ninth Circuit.

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newspaper, as the forum.

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P.O. Box 276600

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type of forum only undermines its position.

Associational rights do not replace individual rights.

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Amendment. Id., 558 U.S. 350.

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By: /S/ Conrad Reynoldson

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/S/ Kevin Snider_____________________

Kevin T. Snider, CA SBN 170988*

Attorneys for Plaintiff

*pro hac vice

P.O. Box 276600

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