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DEFENDANTS OPPOSITION TO PLAINTIFFS

MOTION FOR PRELIMINARY INJUNCTION- 1

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P A TTE R S O N BU C H A N A N

FO BE S & L E I TC H , I N C . , P . S .

2112 Third Avenue, Suite 500, Seattle WA 98121

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Honorable Thomas S. Zilly

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON AT SEATTLE

MICHAEL LEAL,

Plaintiff,

v.

EVERETT PUBLIC SCHOOLS, GARYCOHN, in his individual and officialcapacities as Superintendent of EverettPublic Schools, CATHY WOODS, in herindividual and official capacities as Principalof Cascade High School, LAURAPHILLIPS, in her individual and officialcapacities as Assistant Principal of Cascade

High School, ROBERT AGUILAR, in hisindividual and official capacities asAssistant Principal of Cascade High School,and DOES 1 THRU 100,

Defendants.

No. 2:14-CV-01762-TSZ

DEFENDANTS OPPOSITION TOPLAINTIFFS MOTION FORPRELIMINARY INJUNCTION

Noting Date: January 9, 2015

I. INTRODUCTION

COME NOW Defendants Everett Public Schools, Gary Cohn, Cathy Woods, Laura

Phillips and Robert Aguilar (collectively Defendants), and hereby respond in opposition to

Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction (Motion for

Preliminary Injunction). Plaintiff challenges only whether Everett Public Schools policy,

which limits distribution of written materials to materials that are student written or published,

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before and after school, at the school entrances and exits, is constitutional on its face.

Plaintiffs Motion, Dkt. 8 at 2. Because Everett Public Schools policy is constitutional and

Plaintiff cannot show a likelihood of success on the merits, Plaintiffs Motion for Preliminary

Injunction must be denied.

II. FACTS

The allegations in this case involve issues beyond the distribution of written materials at

school. See Dkt. 1. Similarly, the meetings that administrators had with Plaintiff and discipline

issued to him address issues beyond the distribution of written materials. See e.g., id. For

purposes of the instant Motion, however, only the distribution of written material is at issue.

For that reason, Defendants recitation of facts and application of the law in this Opposition are

limited to that issue.

A. The Only Policies and Procedures at Issue in this Motion are District Policy

3222 and Procedure 3222P Regarding Distribution of Materials.

Everett Public Schools (the District) maintains content-neutral policies and

procedures governing the distribution of materials on campus. Specifically, District Policy

3222 (3222) provides:

Publications or other material written and/or produced by students

may be distributed on school premises in accordance with proceduresdeveloped by the superintendent. Such procedures may impose limitson the time, place, and manner of distribution.

*****

Materials shall not be distributed on school grounds by non-students,

non-employees of the district, or non-school-related groups.

Declaration of Cathy Woods in Support of Defendants Opposition to Plaintiffs Motion for

Preliminary Injunction (Woods Decl.) 3, Ex. 1. Procedure 3222P (3222P) further provides:

Distribution of materials written and/or produced by students shall not

cause a substantial disruption of school activities or materiallyinterfere with school operations. Students responsible for distributionof materials will be subject to corrective action or punishment,


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including suspension or expulsion, depending on the nature of thedisruption or interference resulting from distribution of materials.

The following guidelines are in effect in each school building:

A. Materials written and/or produced by students may be distributed

before or after the school day at points of entry/exit of schoolbuildings.

B. Students may also seek permission from the school principal orassistant principal to distribute materials written and/or produced bystudents at other times and locations.

Woods Decl. 4, Ex. 2. Both 3222 and 3222P are neutral as to the content of the written

materials being distributed. Administrators at Cascade High School (Cascade) enforce both

Policy 3222 and Procedure 3222P at all times, without regard for the content of the material

being distributed. Id. 15; Declaration of Robert Aguilar in Support of Plaintiffs Motion for

Preliminary Injunction (Aguilar Decl.) 9; Declaration of Michael Takayoshi in Support of

Plaintiffs Motion for Preliminary Injunction (Takayoshi Decl.) 5; Declaration of Laura

Phillips in Support of Plaintiffs Motion for Preliminary Injunction (Phillips Decl.) 3.

B. Plaintiff Was Aware of District Policy and Procedure.

Cascade is a closed campus and is not open to indiscriminate use by the public. Woods

Decl. 5. Plaintiff has attended Cascade since the ninth grade and is now in his senior year.Id.

6. Plaintiff received a copy of the Districts 2014-2015 Student Responsibilities and Rights

Policies and Parental Notifications (the Student Handbook), and he and his mother both

signed to indicate that they had reviewed the Student Handbook on September 8, 2014. Woods

Decl. at 7, Ex. 4. 3222 and 3222P are included on page 4 of the Student Handbook. Id.

C. Plaintiff Repeatedly and Intentionally Violated District Policy and Procedure.

Around the second week of the current school year, in September 2014, Cascade

administrators began to receive reports from students that an unknown student was distributing

religious postcards. Woods Decl. at 8. Shortly thereafter, administrators were able to

identify the student as Plaintiff, and he was brought into Principal Woods office for a meeting,


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On additional dates, Plaintiff handed non-student written or published materials

to other students. Id. 18-21, Ex. 9, Ex. 10, Ex 11.

These repeated violations were despite the fact that Plaintiff was consistently reminded of

District policy in multiple meetings with Defendant Aguilar. Aguilar Decl. 4, 5, 7, 8.

D. Cascade Administrators Enforce Policy 3222 and Procedure 3222P Uniformly,

Without Regard to Content.

Administrators at Cascade enforce 3222 and 3222P at all times. Woods Decl. 15;

Aguilar Decl. 9; Takayoshi Decl. 5; Phillips Decl. 3. No exceptions are made. Id. For

example, on November 20, 2014, the advisor to the student group HEROs (Health Educators

Reaching Out) approached Principal Woods regarding the groups efforts to encourage students

to remain smoke free in conjunction with a national day of awareness called The Great

American Smokeout. Woods Decl. 16. The HEROs group had signed up for a kiosk in the

cafeteria to talk with students and hand out materials. Their advisor asked Principal Woods if

the students could hand out stickers and magnets provided by the Snohomish Health District in

addition to a handout produced by the students. Id. Principal Woods advised that the HEROs

group could only distribute student-written materials in accordance with 3222P. Id.

Similarly, any time Principal Woods becomes aware of materials being distributed at

Cascade in violation of 3222P, she takes action to ensure the policy violation stops. Id. 15.

She instructs her assistant principals to do the same. Id. They all do so. Aguilar Decl. 9;

Takayoshi Decl. 5; Phillips Decl 3. Moreover, they all do so without regard to the content

of the written materials. Woods Decl. 15; Aguilar Decl. 9; Takayoshi Decl. 5; Phillips

Decl. 3. And none of them have disciplined Plaintiff because of the religious content of the

material he distributed at school. Woods Decl. 14; Aguilar Decl. 10; Takayoshi Decl. 6;

Phillips Decl. 4.


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E. Defendants Provided Plaintiff with Guidance Regarding Appropriate Ways to

Spread his Message at School.

On multiple occasions, administrators informed Plaintiff that there are several ways in

which he can distribute written materials at school without violating District policy or

procedure. Woods Decl. 9; Aguilar Decl. 4, 7, 8; Takayoshi Decl. 4. Plaintiff has been

told that he can:

Distribute student written or produced material before and after school, at the

school entrances and exits; and,

Form an Associated Student Body (ASB) Club, and have his club sign up for the

ASB kiosk in Cascades lunchroom to distribute student written or produced

material.

Id. Shortly after October 27, 2014, Defendant Aguilar, Assistant Principal Takayoshi, and

Cascades ASB Advisor met with Plaintiff to discuss the creation of an ASB club to facilitate

Plaintiffs activities. Aguilar Decl. 8; Takayoshi Decl. 4. Plaintiff was provided with

application materials, an exemplar club constitution, and other information, which would

enable him to create a club. Aguilar Decl. 8, Ex. 1.

F. There is No Dispute that the Materials Distributed by Plaintiff Are Not StudentWritten or Published.

There is no dispute that the materials Plaintiff distributed and seeks to distribute are not

written and/or produced by him and/or other students. Dkt. 1 16, 19, Ex. A and B; Leal Decl.

13; Woods Decl. 18-21, Ex. 9-11. Further, Plaintiff provides no evidence indicating that

Cascade has permitted the distribution of other non-student written or published materials. Nor

has Plaintiff provided any evidence indicating that the Districts content-neutral 3222 and

3222P were enforced differently as to him because of the content of the materials he

distributed, rather than because of his violations of District policy and procedure.


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III.LEGAL ANALYSIS

A preliminary injunction is a remedy that should be used sparingly and only in a clear

and plain case. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); see also

Rizzo v. Goode, 423 U.S. 362, 379 (1976) (principles of equity support that injunction should

only be granted in the most extraordinary circumstances). To obtain preliminary injunctive

relief, the moving party must show: (1) a likelihood of success on the merits; (2) a likelihood of

irreparable harm to the moving party in the absence of preliminary relief; (3) that the balance of

equities tips in favor of the moving party; and (4) that an injunction is in the public interest.

Winter, 555 U.S. at 20 (2008);Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666

(2004) (to establish the existence of a clear legal or equitable right, the party moving for a

preliminary remedy must show that it is likely to prevail on the merits). The moving party has

the burden of proof on each element the test. Los Angeles Memorial Coliseum Comm'n v.

National Football League,634 F.2d 1197, 1203 (9th Cir. 1980).

Plaintiffs Motion for Preliminary Injunction only asserts that 3222 and 3222P are

facially unconstitutional. Dkt. 8 at 2, 5. Although he generally states that religious speech is

no less protected than other speech in school, at no point does Plaintiff assert that the District

policies are unconstitutional as applied to him. Dkt. 8 at 13. For this reason, Defendants

analysis of the preliminary injunction factors is limited to a facial constitutional challenge of

3222 and 3222P.

A. TinkerDoes Not Apply to the Instant Case - Defendants Do Not Need to Show a

Substantial Disruption in Order to Enforce the Districts Policies.

Plaintiffs Motion is based in large part on a misguided analysis of Tinker v. Des

Moines Independent Community School Dist., 393 U.S. 503 (1969). See Dkt. 8. Plaintiffproffers Tinkerand its progeny to argue that unless the Defendants can establish that Plaintiffs

actions caused a substantial disruption and/or that Plaintiffs activities bear the imprimatur of

the school, enforcement of the District policies in question must fail constitutional muster.


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However, Tinker does not apply to the instant case. Tinker applies to viewpoint-specific

regulations, not content- and viewpoint-neutral policies, such as the ones before this Court.

Generally, students may engage in activities at school that convey their ideological

viewpoints, unless such activities materially and substantially disrupt the work and discipline

of the school or interfere with the rights of others. Requa v. Kent Sch. Dist. No. 415, 492 F.

Supp. 2d 1272, 1280 (W.D. Wash. 2007) (citing Tinker, 393 U.S. at 513 ( 733). However,

substantial disruption need not be shown where a school promulgates a content- and

viewpoint-neutral policy to restrict the time, place, and manner of student speech. See Glover

v. Cole, 762 F.2d 1197, 1202-03 (4th Cir 1985); Canady v. Bossier Parish School Board, 240

F.3d 437, 442-43 (5th Cir. 2001);Nelson v. Moline Sch. Dist., 725 F. Supp. 965, 973 (C.D. Ill.

1989). The substantial disruption test does not apply to otherwise content- and viewpoint-

neutral and reasonable restrictions. See e.g. Kokinda, 497 U.S. at 730; M.A.L., 543 F.3d at 847.

Therefore, Plaintiffs citation to cases applying Tinkers substantial-disruption standard are

inapposite, and should be disregarded in the Courts consideration of the instant Motion.3

B. Plaintiff is Not Likely to Succeed on the Merits, Where the District Policy is

Content and Viewpoint Neutral, and He is Allowed to Promulgate His Message.

The First Amendment does not guarantee the right to communicate ones views at all

times and places or in any manner that may be desired. Heffron v. Intl Soc. For Krishna

Consciousness, Inc., 452 U.S. 640, 647 (1981). It is well established that given the special

characteristics of the school environment a high-school students First Amendment rights are

not absolute; limits may be placed on a students right to express himself that do not offend the

constitution. Fraser v. Bethel Sch. Dist., 755 F.2d 1356, 1358 (9th Cir. 1985) (citing Tinker,

393 U.S. at 506 (1969)). [S]chool officials may impose reasonable restrictions on the speech

3In addition, Plaintiff overstates the disruption standard. A school district is not required to establish that an

actual educational discourse was disrupted by the students activity. Requa, 492 F. Supp. 2d at 1280. Rather,

Tinkersprogeny recognize that there is a legitimate school in maintaining discipline and a civil and respectful

atmosphere toward teachers and students alike. Id.


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of students, teachers, and other members of the school community. Hazelwood, 484 U.S. at

267 (1988).

Freedom to speak on government property is largely dependent on the nature of the

forum in which the speech is delivered. Perry Educ. Assn v. Perry Local Educators Assn,

460 U.S. 37, 45 (1983). There are three types of forums: (1) non-public forums; (2) limited

public forums; and (3) public forums. Cascade is a non-public forum for purposes of this case.

1. Schools are non-public forums, which may constitutionally place

restrictions on the time, place, and manner of student speech.

First Amendment claims are generally examined through the lens of forum analysis.

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985); see also

Christian Legal Soc'y Chapter of the Univ. of Cal. Hastings Coll. of the Law v. Martinez, 561

U.S. 661, 679 (2010) ([I]n a progression of cases, this Court has employed forum analysis to

determine when a government entity, in regulating property in its charge, may place limitations

on speech.). Courts will uphold a governmental restriction on speech in a nonpublic forum

as long as the restriction is reasonable and viewpoint-neutral. Perry,460 U.S. at 46.

School areas, such as hallways, which are not opened up to the indiscriminate use by

the public are nonpublic forums. Hazelwood, 484 U.S. at 267; see also Muller v. Jefferson

Lighthouse, 98 F. 3d 1530, 1539-40 (7th Cir. 1996);Hedges v. Wauconda Cmty. Unit Sch. Dist.

No. 118, 9 F.3d 1295, 1300 (7th Cir. 1993);Peck v. Upshur County Bd. Of Educ.155 F.3d 274,

277-78 (4th Cir. 1998). In a nonpublic forum,4 the challenged regulation need only be

reasonable, as long as the regulation is not an effort to suppress the speakers activity due to

disagreement with the speakers view. Krishna Consciousness, Inc., v. Lee, 505 U.S. 672, 679

(1992) (affirming a Port Authority regulation limiting solicitation and distribution of literaturein airports). Accordingly, schools are entitled to put time, place, and manner restrictions on

4Even in public forums, content-neutral restrictions that regulate the time, place and manner of speech are

permissible so long as they are narrowly tailored to serve significant government interest, and they leave open

ample alternative channels of communication. Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d

891,908 (9th Cir. 2007) (quotingPerry, 460 U.S. at 45 (1983)).


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student speech as long as the restrictions are viewpoint neutral and reasonable in light of the

schools interest in the effectiveness of the forums intended purpose. United States v.

Kokinda, 497 U.S. 720, 730 (1990); see also M.A.L. v. Kinsland, 543 F.3d 841, 847 (6th Cir.

2008) (reversing district courts permanent injunction and award of damages).

Cascade has a closed campus and is not open for indiscriminate use by the public.

Woods Decl. at 5. Moreover, 3222 and 3222P unquestionably restrict the time, place, and

manner in which students may distribute written materials at Cascade. Given these restrictions,

Defendants policies and procedures are constitutional so long as the restrictions are neutral and

reasonable in light of the schools purpose, which they are. See e.g. Hazelwood, 484 U.S. at

267.

2. Policy 3222 and Procedure 3222P are content and viewpoint neutral.

Content discrimination occurs when the government chooses the subjects that may be

discussed, while viewpoint discrimination occurs when the government prohibits speech by

particular speakers, thereby suppressing a particular view about a subject. Glover, 480 F.3d at

912 (citing Giebel v. Sylvester, 244 F.3d 1182, 1188 (9th Cir. 2001)). Content- and viewpoint-

neutral restrictions, like those in the instant case, are constitutional because of the

reasonableness of the defendants purpose. See id. at 908. In Glover, a public librarys

limitation on the subject matter which discussed in a library meeting room was upheld as

constitutional and viewpoint neutral, as the restriction did not suppress or favor one

perspective. Id.

There is no dispute that 3222 and 3222P are content- and viewpoint-neutral. They

apply equally to political speech, religious speech, and speech related to any other topics

including innocuous announcements about fundraisers, socials, etc. Woods Decl. Ex. 4.

There is simply no evidence that 3222P disfavors certain speech, including the religious speech

Plaintiff wishes to engage in. The limitation on distribution of materials to before and after


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school, at the school entrances and exits, does not treat any materials differently because of

their content or viewpoint.5

Plaintiff submits no evidence to the contrary indeed, Plaintiff does not even allege that

3222 and 3222P are arbitrarily applied to him by Defendants or that they are content or

viewpoint specific, rather than neutral. The cases cited in Plaintiffs Motion are inapposite.

Plaintiff relies onK.A. v. Pocono Mt. Sch. Dist., 710 F. 3d 99 (3rd Cir. 2013), a case where a

school allowed students to pass out invitations to birthday parties, Halloween parties, and

Valentines dances during non-instructional time, but required pre-approval for a Christmas

party invite at a church. Id.at 102-03. Requiring pre-approval for the Christmas invitation was

content specific, in that it was imposed because of the content of the material sought to be

distributed. Id. The K.A. court found such restriction unconstitutional because it completely

prevented the plaintiff from distributing the religious materials while allowing other students to

distribute materials with non-religious content.6 Id. Here, the policy and procedure are content

and viewpoint neutral. They apply equally to written materials regardless of subject matter. As

such,K.A.provides no guidance for the Court.

InM.B. v. Liverpool Cent. Sch. Dist., 487 F. Supp. 2d 117 (N.D.N.Y. 2007), the school

district denied plaintiffs request to distribute a personal statement flyer, concerning the

impact Jesus Christ has had on her life, to some of her friends and classmates. M.B.,487 F.

Supp. 2d at 124. The policy in question provided in relevant part that:

Requests for school assistance with the distribution of literaturewhich is not primarily of a proprietary nature and which may

address student needs and/or interests shall be forwarded to theAssistant to the Superintendent of Schools with a copy of the item

to be distributed not later than one week prior to the intended

distribution date.

5Indeed, Defendants apply this policy uniformly across the campus, without regard to the content of materials.

Woods Decl. 15; Aguilar Decl. 9; Takayoshi Decl. 5; Phillips Decl. 3.6Thereafter, because the restriction was content-specific, the Third Circuit Court applied the Tinkeranalysis, and

upheld the trial courts preliminary injunction allowing distribution of the invitations, noting that the school

district utterly failed to identify any disruption caused by K.A.s invitation. Id.


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Requests for school participation in the distribution of literaturewhich is primarily of a proprietary nature and serving no school

purpose, shall be denied.

Id. at 125. Because the policy in question allows, or intends to allow, students, nonprofit

community based organizations, and for-profit organizations with a connection to the District,

to arrange for the distribution of written materials to students, which opens the forum to the

public to a degree, the M.B.court applied a limited-forum analysis. Id. at 133. Under that

analysis, the court found that utterly denying plaintiff the ability to distribute her personal

statement was not a reasonable time, place, and manner restriction. Id. Facially, the policy did

not contain a time, place, and manner restriction enabling students to distribute materials, and

therefore, failed constitutional scrutiny because they restrict considerably more than is

necessary to serve the Districts interests in ensuring the consistent, orderly and non-disruptive

distribution of documents. Id. at 142.

M.B. is not instructive in the instant case for two key reasons. First, unlike M.B.,

Plaintiff is able to disseminate his message so long as he does so in compliance with District

policy and procedure as is required of all students. Second, Cascade is not a limited public

forum. Policy 3222 explicitly prohibits the distribution of materials on on school grounds by

non-students, non-employees of the district, or non-school related groups. Woods Decl. 3,

Ex. 1. This does not open the forum to the public to any degree. For these reasons, M.B. is

inapposite to the instant Motion.

Plaintiff also relies on Wright v. Pulaski Cty. Special Sch. Dist., 803 F. Supp.2d 980

(E.D. Ark. 2011), which is yet another matter easily distinguished from the instant case. In

Wright, plaintiff was completely prevented from including a flyer for a church-sponsored

swimming event in a classroom literature rack while other outside organizations were allowed

to place take-home materials for the students in the same location. Wright, 803 F. Supp. 2d at

981. Wrights request was denied specifically because the flyer was church related. Id.

Without reaching the issue of whether the forum was nonpublic or a limited public form, the


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court found Wright likely to prevail on her viewpoint discrimination claim because the school

seemed to permit almost any organization, with the exception of churches, to circulate

material. Id. at 983. As such, it found an injunction appropriate where defendants

regulations, as presently enforced, merely stamp out certain viewpoint-based speech. Id.

Here, no such allegation is even made, much less is there any evidence to support it.

Policy 3222 and Procedure 3222P are viewpoint and content neutral. They are applied equally

to all materials whether they be religious in nature, anti-smoking in nature, or deal with any

other issue. As such, Wright does not provide the Court with meaningful guidance on this

Motion.

3. 3222 and 3222Ps time, place and manner restrictions are reasonable inlight of Defendants purpose.

Content- and viewpoint-neutral restrictions placed on student distribution of written

materials are the type of minor speech regulations that are considered reasonable under the law.

See M.A.L., 543 F.3d at 847. In M.A.L., for example, the plaintiff arrived at school with red

duct tape over his mouth and on his wrists, wearing a sweatshirt that said Pray to End

Abortion, and distributed leaflets to students on the 3rd

Annual Pro-Life Day of Silent

Solidarity. Id.at 843. With respect to the leaflets, the plaintiff was told that they needed to be

pre-approved, and since they were not, he could not distribute them that day. Id. at 844.

Plaintiff was entitled to post his leaflets on bulletin boards, in hallways, and to distribute from a

designated table in the cafeteria after pre-approval.7 Id. at 847. The court found the minor

regulation was eminently reasonable, and stated that, preventing handbilling in the hallway

7The policies in challenged inM.A.L., provided in relevant part: (1) Any literature which a student wishes to

distribute or possesses to distribute will first be submitted to the principal, or his/her designee, for approval. Theprincipal may have up to three days to review the material before approving or disapproving. If disapproved, the

principal shall state the reasons in writing...(8) If the principal gives his/her approval, he/she may designate a time

and/or a place at which the distribution may take place. The distribution shall be orderly and the designated area for

distribution shall be kept free of loosely scattered material.Id.


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between classes isreasonable to avoid congestion, confusion, and tardiness, to say nothing of

the inevitable clutter caused when recipient indiscriminately discards the handout. Id.(citing

Muller, 98 F. 3d at 1543). The court also found it was reasonable for the defendant school

district to require pre-approval of the leaflets, so long as the districts guidelines for approval

were viewpoint and content neutral and provide[d] clear standards against which the

principal must exercise his discretion to approve or disapprove of a proposed distribution. Id.

543 F.3d at 847-48.

Here, as inM.A.L., the District provides Plaintiff with a forum for communicating his

message through written materials. The Districts viewpoint and content neutral time, place,

and manner restrictions are reasonable in light of its primary purpose of educating students.

Students need to be able to quickly pass through the hallways to get from class to class

without the added congestion and confusion created by allowing distribution of written

materials. To date, at least one student has already been tardy to class as a direct result of

Plaintiff distributing literature in the hallway. Woods Decl. 12, Ex. 5. This is exactly the

type of situation the policy and procedure are designed to avoid.

Similarly, in Walker-Serrano v. Leonard, 325 F.3d 412 (3rd Cir. 2003), the Third

Circuit upheld a school policy which limited distribution of student materials, requiring that

they be pre-approved.8

Id. at 415. In Walker-Serrano, a third grade student circulated a

petition protesting against a school trip in violation of a school procedure for student petitions.

Id. The court found that plaintiff had not suffered an injury of constitutional dimension since

the school authorities encouraged and permitted [plaintiff] to express her views in what they

properly regarded as a pedagogically appropriate manner, by allowing her to hand out other

materials, including coloring books and stickers, to her fellow classmates after she sought and

8The Board respects the right of students to express themselves in word or symbol and to distribute materials as

a part of that expression, but recognizes that the exercise of that right must be limited by the need to maintain an

orderly school environment. . . The Board shall require that students who wish to distribute materials submit them

for prior review. Where the reviewer cannot show within two school days that the materials are unprotected, such

material may be distributed. Appeal from prior review shall be permitted to the Superintendent and the Board in

accordance with district rules. Walker-Serrano, 325 F.3d at 415, n.2.


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received permission to do so. Id. at 415, 419. Like in the instant case, there was no suggestion

that school officials attempted to regulate the plaintiffs speech because they disagreed with the

views she sought to express, nor were the school officials attempting in any way to ban written

materials they considered inappropriate for students. Id.

It is undisputed that 3222 and 3222P enable Plaintiff to distribute materials on campus,

before and after school, at the buildings entrances and exits. These policies enablePlaintiff to

distribute materials at an appropriate time and place, and in a reasonable manner in line with

constitutional authority. See, e.g., M.A.L., 543 F.3d at 847;Morgan v. Plano Indep. Sch. Dist.,

589 F.3d 740, 747 (5th Cir. 2009); Muller,98 F.3d at 1543; Walker-Serrano, 325 F.3d at 415.

Moreover, as in Walker-Serrano, Defendants continue to offer and encourage Plaintiff to

distribute student-created materials through the establishment of an ASB club, an opportunity

which Plaintiff has failed to take advantage of despite Defendants effort. SeeAguilar Decl. at

7, 8.

Further, all of the cases cited by Plaintiff to support the proposition that the time, place,

and manner restrictions under 3222 and 3222P are unconstitutional are easily distinguished

from the instant case. Plaintiff cherry-picks from the opinion ofMorgan v. Swanson, 610 F.3d

877, 889 (5th Cir. 2010) (Swanson), which addressed whether elementary school officials

were entitled to a 12(b)(6) motion to dismiss on the theory of qualified immunity based largely

on the defenses contention that the first amendment did not apply to elementary school

students none of which is at issue in this case. See Swanson, 610 F.3d at 889 (opinion

withdrawn and replaced by Swanson, 627 F.3d 170, 172 (5th Cir. 2010)). In Swanson,plaintiff

sued several officials at Thomas Elementary School for viewpoint discrimination for banning

plaintiff from passing out religious materials at winter break parties.9 Swanson, 610 F.3d

877, 879-80. It was undisputed in Swanson, that plaintiff was prevented from distributing his

9The third-grader chose to give his classmates goodie bags containing candy-cane-shaped pens, along with a

laminated card that explained the Christian origin of candy canes, and each bag was individually addressed to a

specific classmate with a tag specifying that the gift was from plaintiff.Id.


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2d at 623. In J.S., plaintiff sought to distribute church fliers and invitations to a religious

summer camp. Id. However, the school policy required pre-approval of the same, and school

officials admittedly told the plaintiff that, J.S. could not hand out the invitation, or any other

religious materials, in the hallways, cafeteria, or school grounds, and that district policy

prohibits the distribution of religious materials to students. Id. at 617 (emphasis added). The

Michigan court noted,

The school district cannot reasonably be viewed as having imposedtime, place, or manner restrictions upon J.S.s distribution of these

materials; instead, it has flatly forbidden him from giving suchmaterials to his classmatesAs explicitly stated by superintendent

Kent Barnes in response to Mrs. Smith's inquiry, [d]istributingreligious invitations/materials/explanations within the elementary

school day is not appropriate.

Id. Particularly, the court took issue with the across-the-board prohibition of all student-to-

student distribution of materials during the school day, finding it was not a reasonable time,

place, and manner regulation of student speech. Id. at 624 (citingRaker v. Frederick County

Public Schools, 470 F. Supp.2d 634, 638, 640-41 (W.D. Va. 2007)). Here, there is no such

blanket prohibition of Plaintiffs distribution of religious materials. Instead, the District simply

is enforcing compliance with the time, place, and manner of distribution, allowing Plaintiff to

continue to distribute student-created materials containing religious content.

The instant case is also distinguishable from Westfield High Sch. L.I.F.E. Club v. City of

Westfield, 249 F.Supp.2d 98 (D. Mass 2003), where the school in question did not allow

students to distribute non-school curriculum or activity related literature of any kind directly to

other students on school grounds. Westfield, 249 F. Supp. 2d at 104 (emphasis added). The

policies only allowed distribution of responsible or curriculum-related material. In effect,

the policies required administrators to review and evaluate the subject-matter of all material

before it could be distributed.12

Id. The court found that this went too far, yet the Westfield

12Despite reserving tremendous discretion to the administrators, the school policies were still facially neutral.

Id.


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Circuit specifically upheld the provisions of a school policy that limited materials that could be

distributed on campus to those generated by students. Hedges, 9 F.3d at 1302; see, e.g.,

Cornelius, 473 U.S. at 800. Learning how to express thoughts in your own words is an

essential component of education, in part because exposition is a valuable skill and in part

because of the tight link between the thought and its exposition. Id.at 1302. InHedges,the

school district policy forbade students from handing out more than ten (10) copies of any flyer

or pamphlet, if it was not student-generated.13 Id.at 1296. The court stated, [w]hen [students]

want to make a general circulation, they must use their own words or the words of a

classmateThe proprietors of a nonpublic forum are entitled to make such choices, provided

they are not arbitrary or whimsical...Id.

The requirement of Policy 3222 and Procedure 3222P that written material distributed

on campus be student written or published is reasonable in light of the schools educational

purpose. There is a real and tangible educational interest in students expressing thoughts in

their own words and requiring materials placed in general circulation to be student-generated

serves such purpose. See e.g. Hedges at 1302. Here, Plaintiff can express his religious views

in accordance with District policy he simply must do so through material he or another

student writes and publishes.

The only cases cited by Plaintiff on this issue are Cantwell v. Connecticut, 310 U.S. 296

(1940), Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105 (1943), and Prigmore v.

City of Redding, 211 Cal. App. 4th 1322 (2012). All are inapposite. Cantwell and Murdock

both addressed the criminal charges against Jehovahs witnesses who sold religious books

13This policy also limited distribution by making the following restrictions, (1) At least 24 hours prior to any

distribution of material, the student shall notify the principal of his/her intent to distribute; (2) Material shall be

distributed between 7:15 a.m. and 7:45 a.m. and 3:15 p.m. and 3:45 p.m. from a table to be set up by the school for

such purposes. The table shall be located at or near the main entrance of the building. No more than two students

distributing the same material shall be seated at the table.Hedges, 9 F.3d at 1297.


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and pamphlets door to door by requesting donations without obtaining a license as arguably

required by statute or local ordinance. Cantwell, 310 U.S. at 301;Murdock, 319 U.S. at 106-

07. Prigmoreaddressed the distribution of leaflets outside a public library. Prigmore, 211 Cal.

App. 4th at 1327-28. None of these cases provide relevant guidance to the matter before the

Court.

For this, and all the foregoing reasons, Plaintiff is unlikely to succeed on the merits of

his claim regarding the facial constitutionality of 3222 and 3222P.

C. Plaintiff Will Not Suffer Irreparable Harm if His Motion for a Preliminary

Injunction is Denied.

Assuming arguendo, that Plaintiff can demonstrate a likelihood of success on the merits,

he must also demonstrate that irreparable harm is likely in the absence of an injunction.

Winter, 555 U.S. 7, 20. The basic function of a preliminary injunction is to preserve the status

quo pending a determination of the action on the merits and to prevent irreparable loss of rights

prior to a judgment. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th

Cir. 1984); Los Angeles Memorial Coliseum Comn, 634 F.2d at 1200 (9th Cir. 1980).

Preliminary injunctive relief may not be granted on a possibility of irreparable harm, because

injunctive relief is an extraordinary remedy that may only be awarded upon a clear showing

that the plaintiff is entitled to such relief. Caribbean Marine Services Co., Inc. v. Baldrige,

844 F.2d 668, 674 (9th Cir. 1988). A plaintiff must demonstrate immediate threatened harm.

Id.

Plaintiff claims that without preliminary relief his educational and evangelistic

opportunities may be lost, and conclusively asserts that he is being forced under threat of

expulsion and/or suspension to surrender his First Amendment rights. Dkt. 8 at 4 and 14.These assertions, however, are simply untrue. Plaintiff is provided ample opportunities to

exercise his freedom of speech. As may any other student, Plaintiff may exercise his freedom

of speech through the distribution of student written and published materials, before and after


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school, at the school entrances and exits.14

Defendants are enforcing 3222 and 3222P neutrally,

and indeed, Plaintiff admits that Defendants still allow him to distribute student written

materials. Dkt. 8 at 7; see also Dkt. 1, Ex. D. Rather than losing his First Amendment

freedoms, Defendants have provided Plaintiff with ample opportunities to exercise his First

Amendment rights. Given that Plaintiff has numerous alternative outlets for his proffered

speech, no irreparable injury is done to Plaintiff during the pendency of this claim sufficient to

justify a preliminary remedy.

Furthermore, the Defendants have at no time attempted to wholly restrict Plaintiffs

private speech; he is free to hand out whatever materials he chooses off school grounds and on

his own time. See Dkt. 8 at 15. Students adhering to the District policies and procedures will

suffer no discipline for the same, and therefore, are at absolutely no risk of lost time in the

educational environment. Nonetheless, Plaintiff threatens to affirmatively violate reasonable

District policies, in the face of alternative speech avenues offered, to support his argument that

there is an imperative need for a preliminary remedy because of the time he will miss from

school when he again violates District policies. Plaintiff offers no legal support for such relief.

Indeed, his claim is countered by the strong legal authority in favor of Defendants reasonable,

content- and viewpoint- neutral policy. See e.g. Morgan, 589 F.3d at 748; Hedges, 9 F.3d at

1302;M.A.L., 543 F.3d at 847. For these reasons, Plaintiff fails to meet his burden of showing

that he would suffer irreparable harm if the preliminary injunction is not granted, and therefore,

Plaintiffs Motion should be denied.

D. The Balancing of Equities Tips in Favor of Defendants.

The Court may apply a sliding scale requiring the moving party to show a combination

of probable success on the merits, the possibility of irreparable injury, and that the balance of

hardships tips sharply in favor of the moving party. Stuhlbarg, 240 F.3d 832, 839-40 (9th Cir.

14Although it is not the subject of the instant motion, Plaintiff also engages in open-air preaching on campus and has

been provided with times and a location to do so.


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2001). These standards are not separate tests but the outer reaches of a single continuum. Id.

To obtain a preliminary injunction, a plaintiff must show that the balance of equities tips in his

or her favor and that an injunction is in the public interest. Winter, 129 S.Ct. at 374. When

considering whether to grant an injunction, a trial court is to give particular regard to the

interests of the public. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct.

1396 (1987) (cited byHigh Sierra Hikers Association v. Blackwell, 390 F.3d 630, 643 (9th Cir.

2004); Southwest Voter Registration Ed. Project v. Shelley, 344 F.3d 914, 917 (9th Cir. 2003)

(holding that the Court must also weigh whether the public interest favors issuance of the

injunction).

Plaintiff claims that the Defendants have no interest in restricting student speech, and

that the Defendants will not suffer any harm by granting preliminary relief to Plaintiff. Dkt. 8

at 15. However, there is significant risk of harm to these Defendants. As the court writes in

Muller: Not everyone can stand on the soapbox at once.Muller, 98 F.3d at 1543. If the Court

enjoins Defendants from enforcing its policy with respect to Plaintiff, Plaintiff will essentially

move beyond the ability of the school district to sanction him resulting in a substantial

inequity to Defendants. Requa, 492 F. Supp. 2d at 1282. Other students would be held

accountable to the policy, while Plaintiff would not, leaving Defendants unable to fully

discipline Plaintiff for continued violations of school district policy. Id. (such inequity will

ultimately undermine the community message that the sanctions are meant to

communicate.). Not only does this open the Defendants to risk of arbitrary application of its

policies, but such unbridled distribution will likely cause additional student tardiness, may

contributing to littering, unsafe loitering, and gathering of students. The deterrent impact of

the consequences meted out for the violations of the student conduct code will be lost, raising

the likelihood of a corresponding loss of respect and adherence to the code itself. Id. As in

Requa, here [t]he potential hardships to Defendants outweigh those which Plaintiff can claim.

Id.


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Plaintiff is simply required to adhere to the same rules as all students. Uniform

compliance with its constitutional restrictions on distribution of materials on campus imposes

an exceedingly small burden on Plaintiff, while supporting the reasonable goals of Defendants.

Given the substantial unlikelihood that Plaintiff would prevail on the merits, the balance is

tipped in favor of Defendants interest in maintaining a civil and orderly environment. See e.g.

Requa, 492 F. Supp. 2d at 1281 ([w]eighed against the findings concerning the unlikelihood

that Plaintiff will prevail on the merits of his claim, the Court concludes that the injuries to

Plaintiff, however irreparable, are insufficient to compel the extraordinary remedy which he

seeks.). This is a minimal imposition on the Plaintiff, which if the Court circumvented

through preliminary relief requested, absolutely places Defendants and the school district as a

whole at risk of widespread issues with the efficient and orderly operation of its educational

environment. The preliminary relief requested essentially leaves the Defendants unable to

enforce its reasonable and neutral time, place, and manner policy, and should be denied on that

basis.

E. Granting Plaintiff a Preliminary Injunction Would Be Contrary to Public

Interest.

[T]he First Amendment has never been interpreted to interfere with the authority of

schools to maintain an environment conducive to learning. Walker-Serrano, 325 F.3d at 416.

Again, there is a real public interest in the school district's ability to maintain a working and

learning environment where violations of those legitimate expectations are sanctionable

Requa, 492 F. Supp. 2d at 1283 (public interest favors Defendants position and the denial of

the requested restraining order). Educators have an essential role in regulating school affairs

and establishing appropriate standards of conduct. See Canady v. Bossier Parish Sch. Bd., 240F.3d 437, 441 (5th Cir. 2001) (citing Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 681,

92 L. Ed. 2d 549, 106 S. Ct. 3159 (1986)). Schools need to be able to create an environment


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where students can get to class on time, with minimal confusion and distraction. As such, the

publics interest would be harmed if the Plaintiffs Motion were to be granted.

IV.CONCLUSION

Plaintiff bases his Motion on a misguided recitation of a legal standard that simply does

not apply in the instant case. He utterly fails to sustain his burden to show elements necessary

to obtain a preliminary injunction. Examination of the record, argument, and legal authority

herein shows that: (1) Plaintiff fails to demonstrate that he would likely succeed on the merits;

(2) Plaintiff fails to show that he would suffer irreparable harm in the absence of preliminary

relief; (3) Plaintiff fails to establish that the balance of equities tips in his favor; and (4)

Plaintiff fails to show the injunction would be in the publics interest. In fact, enjoinment of

Defendants is both contrary to the weight of legal authority and contrary to public interest.

3222 and 3222P are reasonable and neutral restrictions as to the time, place, and manner with

which students may distribute materials on campus, and Defendants enforcement and

adherence to the same does not offend the First Amendment.

Therefore, and for all the foregoing reasons, Defendants respectfully request that the

Court deny Plaintiffs Motion for Preliminary Injunction.

DATED this 19th

day of December, 2014.

PATTERSON BUCHANANFOBES & LEITCH, INC., P.S.

By: /s Michael A. Patterson /s Sarah E. Heineman Michael A. Patterson, WSBA 7976 Sarah E. Heineman, WSBA 33107

Of Attorneys for Defendants2112 Third Avenue, Suite 500Seattle, WA 98121Telephone: (206) 462-6700Fax: (206)[email protected]@pattersonbuchanan.com

mailto:[email protected]:[email protected]:[email protected]:[email protected]

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CERTIFICATE OF SERVICE

I, John Carlo Balcita, hereby declare that on this 19th day of December, 2014, I

electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which

will send notification of such filing to the following:

ATTORNEY NAME & ADDRESS

Conrad ReynoldsonPacific Justice Institute

4421 51ST AVENUE NESEATTLE, WA 98105

[email protected]

Kevin T. Snider

Matthew B. McReynoldsPacific Justice Institute

9751 HORN ROAD, SUITE 115SACRAMENTO, CA 95827

[email protected]@pji.org

I certify under penalty of perjury, under the laws of the State of Washington, that theforegoing is true and correct.

DATED this 19th

day of December, 2014 at Seattle, Washington.

/s/ John Carlo Balcita

John Carlo BalcitaLegal Assistant

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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