No. 10-12139

In the

SUPREME COURT OF THE UNITED STATES

October Term, 2014

CARROLL PREPARATORY SCHOOL, INC.,

Petitioner v.

ANNA LYONS, a minor, through her parent, DEBORAH LYONS,

Respondent.

ON WRIT OF CERTIORARI FROM THE UNITED STATES COURT OF APPEALS FOR THE

THIRTEENTH CIRCUIT

BRIEF FOR THE RESPONDENT

ii

QUESTIONS PRESENTED

1. Whether an ostensibly private entity, declared “public” by state law, that provides free,

public education as a part of the state’s public school system can be held liable under

section 42 U.S.C. § 1983 as acting under color of state law for its discipline policy.

2. Whether a school authority may, consistent with the First Amendment, prohibit a

student’s speech that was created entirely outside of the school setting, did not come

into the school through any actions of the student, and did not result in any physical

altercations or severe confrontations between students, when there is no history of

incidents at the school based on the same content found in the student’s speech?

iii

INDEX

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

INDEX ............................................................................................................................................ iii

TABLE OF AUTHORITIES ..........................................................................................................v

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

RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS ..................................1

STATEMENT OF THE CASE ......................................................................................................1

SUMMARY OF ARGUMENT ......................................................................................................4

ARGUMENT ...................................................................................................................................6

I. THIS COURT SHOULD UPHOLD THE LOWER COURT’S RULING THAT THE

RESPONDENT ACTED UNDER THE COLOR OF LAW BECAUSE IT MEETS

TWO DISTINCT SUPREME COURT STANDARDS THAT DEFINE THAT

TERM...................................................................................................................................6

A. Respondent acted under the color of state law because it occupies a public function that has historically been the exclusive province of the state of Hoynes ...............................6

1. Free, public education is historically a state function of which discipline is an essential component ............................................................................................6

2. Petitioner school is public ...................................................................................9

B. Petitioner’s actions are under the color of law because it is entwined with the State of Hoynes ..........................................................................................................................10

1. Hoynes’s designation of CPS as public shows entwinement ............................10

2. Petitioner’s relationship with Hoynes embodies entwinement ..........................11

C. This Court’s 1983 tests sufficiently protect private actors from liability ......................13

II. THIS COURT SHOULD UPHOLD THE CIRCUIT COURT’S RULING THAT

THE PETITIONER VIOLATED RESPONDENT’S FIRST AMENDMENT

RIGHTS BECAUSE RESPONDENT’S SPEECH WAS WHOLLY OFF-CAMPUS

AND WAS NOT LIKELY TO CAUSE A SUBSTANTIAL AND MATERIAL

DISRUPTION ...................................................................................................................13

A. The Court should find that school authorities may not constitutionally regulate speech

iv

wholly unconnected with the school, merely because the speaker happens to be a student ...........................................................................................................................14

B. Anna’s off-campus speech did not intend, risk, or result in a substantial and material disruption to CPS and cannot be justified under Tinker ................................................15

1. Anna’s speech is not threatening and did not urge action from the audience. ...15

2. Anna’s speech neither created a serious risk of nor resulted in substantial and material disruption of the school. ......................................................................17

C. Fraser was not intended to apply to speech that occurs outside of the school setting ..19

v

TABLE OF AUTHORITIES

Cases

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) .................................................................12

Ambach v. Norwick, 441 U.S. 68 (1979) ...........................................................................................7

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) ...............................................6, 13, 14, 19

Beussink v. Woodland R-IV Sch. Dist., 30 F. Supp. 2d 1175 (E.D. Mo. 1998) .............................. 18

Blum v. Yaretsky, 457 U.S. 991 (1982) .............................................................................................7

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001) ..........10, 11, 12, 13

Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806 (9th Cir. 2010) ..................................8

Lyons v. Carroll Prep. Sch., Inc., 170 F.4th 14 (13th Cir. 2014) ............................................ passim

Lyons v. Carroll Prep. Sch., Inc., 509 F. Supp. 4th 3 (N.D. Hoy. 2013) ................................ passim

Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008) .............................................................................16

Emmett v. Kent Sch. Dist. No. 415, 92 F. Supp. 2d 1088 (W.D. Wash. 2000) ..........................17, 19

Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988) ...............................................................................14

Jackson v. Metro Edison Co., 419 U.S. 345 (1974) ..........................................................................6

Killion v. Franklin Reg’l Sch. Dist., 136 F. Supp. 2d 446 (W.D. Pa. 2001) ..............................16, 19

Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995) .............................................. 11

Lugar v. Edmonson Oil Co., 457 U.S. 922(1982) .............................................................................6

Marsh v. Ala., 326 U.S. 501, 504 (1946) .......................................................................................8, 9

Morse v. Frederick, 551 U.S. 393 (2007) ..................................................................................14, 19

Rendell-Baker v. Kohn, 457 U.S. 830 (1982) ..............................................................7, 9, 10, 11, 12

Riester v. Riverside Cmty. Sch., 257 F. Supp. 2d 968 (S.D. Ohio 2002) ...........................................7

Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001) ....................................................17

Scaggs v. N.Y. Dep’t of Educ., No. 06-CV-0799, 2007 WL 1456221 (E.D.N.Y. 2007)....................8

vi

Tancredi v. Metro. Life. Ins. Co., 378 F.3d 220 (2d Cir. 2004) ............................................................................. 10

Thomas v. Bd. of Educ, Granville Cent. Sch. Dist., 607 F.2d 1043 (2d Cir. 1979) ...................14, 15

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) .................................. 5, 13, 15

West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir. 2000) ....................................17

Wisniewski v. Board of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34 (2d Cir. 2007) .............16

Statutes

Hoy. Stat. § 33-5402 et seq. (2014) ..............................................................................................1, 2

Other Authorities

Erwin Chemerinsky, Federal Jurisdiction (5th ed. 2007) ...............................................................13

1

No. 10-12139

In the

SUPREME COURT OF THE UNITED STATES

October Term, 2014

CARROLL PREPARATORY SCHOOL, INC.,

Petitioner v.

ANNA LYONS, a minor, through her parent, DEBORAH LYONS,

Respondent.

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion below are reported as Lyons v. Carroll Preparatory School, 170 F.4th 14

(13th Cir. 2014), and Lyons v. Carroll Preparatory School, 509 F. Supp. 4th 3 (N.D. Hoy.

2013).

RELEVANT STATUTES AND CONSTITUTIONAL PROVISIONS

The relevant provisions are set forth in the Appendix.

STATEMENT OF THE CASE

In 2003, the State of Hoynes enacted the Charter School Enabling Act (“CSEA”). Hoy.

Stat. § 33-5402 et seq. (2014). The Act sought to improve the state’s public school system by

allowing the creation of charter schools that offer alternatives to the standard public school

curriculum. Lyons v. Carroll Preparatory School, 509 F. Supp. 4th 3, 3-4 (N.D. Hoy. 2009).

The Act explicitly states that all schools that are established pursuant to this Act are “public”

schools. Hoy. Stat. § 33-5402(3). It further provides that any entity wishing to create a school

2

must submit a charter to the school boards from which it seeks to take students. Id. §§ 33-

5402(1), 33-5403(2)(a). Carroll Preparatory Enterprises (“CPE”) is a Hoynes not-for-profit

corporation that applied and was granted a charter to provide education to Hoynes students. Id.

at 4. CPE opened the Carroll Preparatory School (“CPS”), one of these public schools, the

following fall. Id.

The Act aims to provide flexible alternatives to traditional public schools. See Lyons, 509

F. Supp. 4th at 3. In conjunction with this goal, the Act exempts charter schools from state

regulation and some local regulations. Hoy. Stat. § 33-5403(3). The Act also specifically exempts

charter schools from “any state or local mandate affecting school discipline, classroom

management, or student regulation.” Id. Accordingly, CPS adopted a progressive view on

discipline, which includes an explicit anti-bullying policy. Lyons, 509 F. Supp. 4th at 5.

Pursuant to the Act’s requirements, CPS has a five-member board of trustees that

oversees the school’s operations. Id. at 4. The school is located in a public library in the city of

Rahl, a low-income part of Hoynes. Id. Students from Rahl and the neighboring communities of

Green and Ruder can elect to enroll at CPS. Id. If they do, CPS receives an increase in

funding from Hoynes equal to the per pupil allotment given to the state’s other public schools.

Id. In all, ninety percent of the school’s funding comes from the state. Id. at 5. The teachers of

CPS as a group opted to remain a part of the district-wide collective bargaining agreement, and

they participate in the state retirement system. Id. at 4. However, pursuant to the Act, a few of

its teachers opted out of the state retirement system. Id.

The challenged suspension currently before the Court involves respondent Anna Lyons,

and a parody of a popular magazine cover that she created at her home in the fall of 2011. Id. at

6. At all times relevant to this complaint, Anna was a senior at CPS. Id. Earlier that year, three

CPS students became pregnant and went public with news of their pregnancies to the CPS

3

student body. Id. at 5. Although rumors about details of the pregnancies circulated around the

school, there was no indication that any incidents occurred as a result of the girls’ disclosure.

See id.

Simultaneously, three cast members from a popular reality television show about teen

mothers, Kids Raising Kids (“KRK”), appeared on the cover of a November 1, 2011, issue of a

popular entertainment magazine, WE Bi-Weekly. Id. The issue featured a picture of the mothers

and their children, with a caption that read “KRK Moms Win Their Battle.” Id. at 5-6. Also

featured on the cover were three smaller pictures, featuring: (1) musicians smoking a cigarette in

a park, (2) a celebrity driving her car away from a nightclub where she reportedly had been

drinking, and (3) a popular child star dancing on the table of a café in a bikini. Id. at 6.

On November 3, 2011, Anna parodied the magazine cover and uploaded the altered

image onto her web log (“blog”). Id. In so doing, yearbook photos of the pregnant CPS students

were pasted over the KRK mothers’ faces (with a new caption, “CPS Moms Suck”), images of

the musicians were replaced with stock photos of newborns (entitled “This iz ur brain on dirty

flirts”), the celebrity behind the wheel was replaced with a picture of one of the pregnant

students and a stroller was inserted into the picture to simulate a car collision (captioned “Jenny

luvs her Henny”), and the child star’s photo was re-captioned “Future Sluts of Hoynes.” Id.

Along with the parodied magazine cover, Anna included several permanent links to

external websites, one to a religious site promoting abstinence, and another to a political site

advocating for the removal of sexual education classes. Id. Anna forwarded the URL address of

her blog to four students on the evening of November 3. Id. Just five days later, she permanently

removed the post from her blog. Id. at 8.

Although Anna never opened the blog post at school nor brought a copy of its contents to

school, copies of the satirical cover appeared at school two days later and one student, J. David

4

Straub, was caught accessing the blog during class. Id. at 6-7. Straub was punished and

administrators altered access to the school’s Internet to prevent any further access to the blog. Id.

at 7. While some teachers reported delays in classes and some administrators reported that they

missed meetings to discuss the magazine cover, no physical altercations or heated confrontations

resulted from the magazine’s presence in the school. Id. Duncan Hall, who dates one of the

pregnant students, became angry after seeing one of the covers with a derogatory message

written across it, but hall monitors were able to alert staff to the situation. Id. CPS’ health

teacher modified her lesson plans to discuss teen pregnancy with the CPS student body that

week, but there is no indication that this was coerced. Id. The only major loss of instruction time

occurred when one teacher elected to leave her classroom to report the incident to Principal

Zahm, and asked another teacher to oversee her classroom as well. Id. Three days after the blog

entry was posted, the administration decided to suspend Anna for creating the post in violation

of the school’s anti-bullying policy. Id. Anna’s suspension was ten days, due in part to a

previous infraction where she made a derogatory comment to a classmate. Id. at 8.

SUMMARY OF ARGUMENT

This Court should uphold the lower court’s ruling that the petitioner acted under the color

of law because it meets two distinct Supreme Court standards that satisfy 1983’s requirement.

First, it exercises powers traditionally exclusively reserved to the State. Free, public education is

historically a state function, exclusively provided by the state. The discipline policy central to

this case is an essential component of that state function. Notwithstanding, CPS is also a public

school because it is designated as such by Hoynes statute and its existence is a creature of state

legislative action, which can be revoked at an y moment unlike a contractor competing for

services in a market.

5

CPS further acted under the color of law because it is pervasively entwined with the state.

For one, the designation of the school as public is dispositive—it is entwine because the state

itself declared it to be. Moreover, the relationship between the state and the school-which

includes state retirement and collective bargaining, the use of public facilities, and students

completely reliant on state-taxpayer tuition payments- embodies entwinement.

Second, the Court should create a bright-line rule that where a student’s speech takes

place entirely off campus and has no connection to any school-related activity, students should

enjoy the full protections of the First Amendment adults do in a public forum.

Alternatively, if the Court declines to find such a rule, it should nevertheless uphold the

decision of the Circuit Court that the speech at issue does not meet the standard articulated by

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969). The Tinker Court

required that in order for a school to regulate student speech, it must find the speech presents a

sufficient risk of causing substantial and material disruption to the school. Anna’s speech did

not contain any threats or calls to action, and she did not therefore intend for her speech to

reach campus.

Additionally, Anna’s speech did not pose the risk of nor had the effect of created a

substantial and material disruption at CPS. Because there was no past history of incidents

relating the to content of Anna’s speech about teen pregnancy, and because any reaction by the

administration and student body was de minimis and allowed teachers and administrators

sufficient control over the school, Anna’s speech does not meet the standards articulated by

Tinker for speech that can constitutionally be regulated.

Regardless of whether the Court decides to hold a bright- line rule or whether it decides

to subject the speech at issue to an analysis under Tinker, the Court should nevertheless uphold

the Circuit Court’s holding that Bethel Sch. Dist. No. 403 v. Fraser does not apply to cases

6

where the student’s speech occurs off campus. This holding has been explicitly reached by

multiple district and circuit courts, and has been implied by the Supreme Court’s cases

subsequent to Fraser. 478 U.S. 675, 685 (1986).

ARGUMENT

I. THIS COURT SHOULD UPHOLD THE LOWER COURT’S RULING THAT THE

RESPONDENT ACTED UNDER THE COLOR OF LAW BECAUSE IT MEETS

TWO DISTINCT SUPREME COURT STANDARDS THAT DEFINE THAT

TERM

To succeed on a section 1983 action, a plaintiff must prove that 1) there was a

deprivation of a right secured by United States laws or Constitution, and 2)that the deprivation

was occasioned by a person acting under the color of state law. Lugar v. Edmonson Oil Co., 457

U.S. 922, 937 (1982). CPS meets two of the existing standards by which an ostensibly private

actor can act under the color of law:1 1) it performs a “public function” that has “traditionally

exclusively [been] reserved to the State,” See Jackson v. Metro Edison Co., 419 U.S. 345, 352

(1974); and 2) its activities have become so entwined with the state of Hoynes as to implicate

the protections of 1983. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S.

288, 303 (2001).

A. Respondent acted under the color of state law because it occupies a public

function that has historically been the exclusive province of the state of Hoynes

This Court has held that a private entity acts under the color of law when it “exercise[s]

… powers traditionally exclusively reserved to the State.” Jackson, 419 U.S. 345, 352. CPS

meets this standard, and therefore, acted under the color of law when it disciplined Anna Cyrus.

1. Free, public education is historically a state function of which

discipline is an essential component

1 “State actions” under the 14th Amendment satisfy “under the color of law” standard for 1983. Lugar, 457 U.S. at

935.

7

Free, public education is one of the most essential tasks performed by our state

governments. Ambach v. Norwick, 441 U.S. 68, 77 (1979). In contradistinction to education

generally, “free, public education, whether provided by public or private actors, is an historical,

exclusive, and traditional state function” because it has been the exclusively provided by state

and local governments. Riester v. Riverside Cmty. Sch., 257 F. Supp. 2d 968, 972 (S.D. Ohio

2002).

The specific action complained about by the plaintiff—the school’s disciplinary

policy—is directly attributable to the exercise of these powers. See generally Blum v.

Yaretsky, 457 U.S. 991, 1003 (1982) (noting the gravamen of the plaintiff’s complaint is

important in determining state action). A school discipline policy is one of the many

components of free, public education. As such, CPS’s policy, which is central to this case,

existed by virtue of its position as a provider of this historical state function.

This requirement explains why this Court reached the opposite conclusion in Rendell-

Baker v. Kohn, 457 U.S. 830, 843 (1982). In that case, former teachers and a counselor at a

nonprofit, privately operated school for maladjusted high school students filed suit under section

1983 for their wrongful discharge. Id. at 832. Neighboring cities referred students to the school

and paid for their tuition. Id. In holding that the employees’ discharge was not under the color

of law, the majority noted the state simply showed little “interest in the school’s personnel

matters.” Id. at 841. Indeed, the majority “would apparently concede that actions directly

affecting the students could be treated as under color of state law.” Id. at 851 (Blackmun, J.

dissenting). Thus, for the purposes of 1983, there is a distinction between administrative

matters, which are ancillary to the traditional state function, and those matters, like a public-

education disciplinary policy, which are inextricably linked with that function. See id.

This conclusion is consistent with other Supreme Court cases finding that ostensibly

8

private entities acted under the color of law because an entity may be a state actor with respect

to certain conduct and a private actor with respect to other conduct. See Caviness v. Horizon

Cmty. Learning Ctr., Inc., 590 F.3d 806, 813 (9th Cir. 2010). In Marsh v. Alabama this Court

held that a private corporation that promulgated a rule prohibiting the distribution of religious

literature in its company-owned town acted under the color of law because it occupied the role

of a municipal government-an historic state function. 326 U.S. 501, 504, 509 (1946).

Conversely, an internal decision by the company to fire one of its employees in charge of

making similar decisions would not have implicated section 1983. In other words, running a

town is an historic state function of which promulgating laws is a necessary incident, but

administrative decisions are ancillary and not subject 1983 liability. By analogy, providing

education is a state function of which a discipline policy is a necessary incident, but

employment decisions are ancillary. Hence, the lower court opinions are consistent with Marsh.

Moreover, the incident leading to the 1983 suit cannot be viewed in isolation. Rather,

“only by sifting facts and weighing circumstances can it be determined whether the” conduct is

under the color of law. Evans v. Newton, 382 U.S. 296, 300–01 (1966) (internal citations

omitted). Practically speaking, student discipline is at the heart of free, public education, while

employment decisions are hidden in the background. This holding is precisely the one reached

by the Eastern District of New York in Scaggs v. N.Y. Dep’t of Educ., No. 06-CV-0799, 2007

WL 1456221, at *13 (E.D.N.Y 2007). Scaggs held that a private corporation that “operat[ed] as

a management company for educational institutions, including charter schools” acted under the

color of law for claims relating to the provision of education to disabled students. Id. at 12.

Unlike Rendell- Baker, where the “employment action with regard to a single teacher [was] only

minimally or tangentially involved” claims related to the provision of free, public education

brought by students fall under 1983. Id. at 13 (citing six district courts that reached the same

9

conclusion since Rendell-Baker was decided).

This holistic approach demonstrates the error in the dissenting lower court opinion.

There, the Chief Judge analyzed whether “[t]he discipline of a student for disrupting a

classroom is” an exclusive state function. Lyons, 170 F.4th 14 at 21 (Lochner, C.J., dissenting).

Over compartmentalizing actors’ actions in this manner would surely turn the exclusive state

function test on its head. If this were the case, the state action in Marsh could be characterized as

preventing Jehovah’s Witnesses from entering one’s property—surely, not a historic, exclusive

state action. See Marsh, 326 U.S. at 503. Thus, even though the plaintiff must prove that more

than the decision to establish the private entity was a state action, Marsh requires a broader view

than the lower court dissent gave this case.

2. Petitioner school is public

Notwithstanding the above analysis, the Rendell-Baker court would have held CPS is

public. Foremost among the distinctions is CPS’s designation as “public” by the state, Lyons,

509 F. Supp. at 9, whereas the schools in Rendell-Baker called “contractors” by the state.

Rendell-Baker, 457 U.S. at 833. That opinion also repeatedly compared the Ohio school to the

“many corporations whose business depends primarily on contracts” in that their vitality depends

on the government’s continuing approval. Rendell-Baker, 457 U.S. 840–41. By contrast, CPS

has no independent existence. Its creation was the result of a state act granting it a charter, and

the State reserved the right to revoke that charter at any time. Lyons, 509 F. Supp. at 4.

Additionally, unlike the private students that attended the school in Rendell-Baker, where

approximately one half of the students paid for their own tuition, every CPS student used state

tax dollars for tuition. Simply put, the Rendell-Baker school was a contractor in the education

market that competed for customers, while CPS was an integral part of the state public school

system. Thus, Petitioner is a state actor unlike the Ohio school.

10

Even more telling, however, is Rendell-Baker’s conclusion that the function of the Ohio

school was not one historically occupied by the state because the education of maladjusted high

school students is not the exclusive function of the state, in part, because the state did not

undertake this task until recently. Rendell-Baker, 457 U.S. at 842. On the other hand, the State

of Hoynes has always undertook the task of educating its citizens. Thus, Rendell-Baker is

distinguishable.

B. Petitioner’s actions are under the color of law because it is entwined with the

State of Hoynes

CPS acts under the color of law because it is pervasively entwined with Hoynes. See

Brentwood, 531 U.S. at 302. This standard “effectively broadened the state action test” by

creating “flexibility” to find state action “even though the facts would not have supported a

finding” under the previous tests. Tancredi v. Metro. Life. Ins. Co., 378 F.3d 220, 230 (2d Cir.

2004) (quoting id. at 305 (Thomas, J., dissenting)).

1. Hoynes’s designation of CPS as public shows entwinement

Foremost among the indicators of entwinement is Hoynes’s declaration that CPS is a

“public school[].” See Lyons, 509 F. Supp. 4th at 3. Nothing is more indicative of

entwinement, and thus, “Hoynes has already resolved this inquiry.” Id. at 9. This conclusion

is supported by the facts of Brentwood. Although the athletic association in that case was no

longer designated as the public regulator of interscholastic athletics by Tennessee statute, this

Court implied the official “delegation of authority to [the private body] is sufficient to make

[it] a state actor.” Brentwood, 531 U.S. at 300 n.3 (quoting Graham v. TSAA, No. 1:95-CV-

044, 1995 WL 115890, at *5 (E.D. Tenn. 1995)). Moreover, statutory designations such as

this one should be given dispositive weight when it increases the protections afforded to

citizens. This rule contrasts with Lebron v. National Railroad Passenger Corp., where this

Court held that Congress’ designation of Amtrak as a private actor did not allow it to escape a

11

ruling that its conduct was state action. 513 U.S. 374, 391, 400 (1995). While ruling the other

way in Lebron would “allow[] states to contract around the requirements of the Constitution,

the Bill of Rights, and the Fourteenth Amendment while still retaining control of private

entities,” Lyons, 170 F.4th at 15, Hoynes’s designation of CPS as public reflects its intention

to afford those students who chose the different curricula of charter schools the substantive

protections of 1983. See Rendell-Baker, 457 U.S. at 842 n.7. It would be unjust to prohibit

Student 1 to recover from Charter School A for violating her right, while allowing Student 2

to recover from School B when both students are consuming the same product (education)

provided by the same entity (tax dollars from the state).

2. Petitioner’s relationship with Hoynes embodies entwinement

The relationship between Hoynes and CPS evidences pervasive entwinement between

the state and the school. In Brentwood, this Court found the Tennessee School Athletic

Association (“TSAA”), which regulated interscholastic sports between its private- and public-

school members, was entwined with the state of Tennessee. 531 U.S. at 291. This Court based

its ruling, inter alia, on a state statute that created the association and reserved power to revoke

it. Id. at 292. Further, eighty-six percent of the association was comprised of public schools, it

rented public facilities for its events, and the association’s employees could opt into the state’s

retirement program. Id. at 291. The Court held “there would be no recognizable Association”

without the public participation in the program. Id. at 300. This holding went further than the

mere financial reliance present in Rendell-Baker. 457 U.S. at 841. Instead, the TSAA functioned

as the facilitator of the state’s public, interscholastic athletic competitions.

CPS similarly satisfies this “necessarily . . . fact-based inquiry.” Id. at 298. Hoynes

enacted the CSEA so charter schools could operate within its existing public school system.

Lyons, 509 F. Supp. 4th at 3. Like the association in Brentwood, the state passed the act

12

enabling the schools, and “[u]nlike the mere public buyers of contract services, whose payments

for services rendered do not convert the service providers into public actors, Rendell-Baker, 457

U.S. at 839–43, Hoynes reserves the right to pull the rug out from under a charter school if it is

not functioning as an effective component of the state’s school system. Lyons, 509 F. Supp.

4th at 4. The school rents its building from the state, most of its teachers are a part of the

district-wide collective bargaining agreement and participate in the state retirement system, and

each one of its students use public tax revenues dedicated to public education. See id. at 4, 10;

cf. Rendell- Baker, 457 U.S. at 841. Simply put, CPS functions as one school among the many

government-run, public schools in a system of public education. See Lyons, 509 F. Supp. 4th at

10. There is no better description for CPS’s role in this system than entwined with the state’s

public educators.

The lower court dissent appears to concede entwinement exists but argues that the

relevant question is whether there is entwinement between the disciplining of Anna and the

state. See Lyons, 170 F.4th at 21-22 (Lochner, C.J., dissenting). She would hold that there is no

entwinement because Hoynes exempted CPS from regulations concerning discipline. Id. at 22.

However, this argument conflates the coercion test, which is met when the “State ‘has exercised

coercive power or has provided such significant encouragement’” to the action in question that

“it must be deemed to be that of the State.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50

(1999). While analyzing the individual action is material under this test, it is distinct from

entwinement. See Rendell-Baker, 457 U.S. at 841. The entwinement test only requires that the

state and private actors are entwined. See Brentwood, 531 U.S. at 298. Otherwise, the TSAA or

CPS could effectively control private actors’ actions but avoid liability by writing exemptions

into the enabling legislation. Such an outcome would severely undercut the federal protections

1983 affords citizens of those states that are unable or unwilling to enforce federal rights.

13

C. This Court’s 1983 tests sufficiently protect private actors from liability

The lower court dissent’s federalism concerns are without merit. Chief Judge Lochner’s

concerns are real, but federalism does not establish an additional protection from 1983 liability.

Rather, the public function and entwinement tests serve that function. We do not contend that all

“[p]rivate companies” that “provide vital services” should be subject to suit. Cf. Lyons, 170

F.4th at 22 (Lochner, C.J., dissenting). To the contrary, this Court’s established tests define the

line at which an ostensibly private company’s actions become “attributable to the state.”

Brentwood, 531 U.S. at 297. It is the tests, and not the extra barrier of federalism, that provides

private actors protection. Without these tests, states could contract around 1983 ability by

delegating its tasks to “private” companies. This outcome is inconsistent with the goals of 1983,

which provides a mechanism by which the federal government can protect federal rights against

unwilling state actors. Erwin Chemerinsky, Federal Jurisdiction 486 (5th ed. 2007).

II. THIS COURT SHOULD UPHOLD THE CIRCUIT COURT’S RULING THAT

THE PETITIONER VIOLATED RESPONDENT’S FIRST AMENDMENT

RIGHTS BECAUSE RESPONDENT’S SPEECH WAS WHOLLY OFF-CAMPUS

AND WAS NOT LIKELY TO CAUSE A SUBSTANTIAL AND MATERIAL

DISRUPTION

This Court should uphold the ruling of the Thirteenth Circuit Court of Appeals and find

that petitioner’s actions violated respondent Lyons’ First Amendment rights under the

Constitution. The First Amendment directs that “Congress shall make no law . . . abridging the

freedom of speech, or of the press.” U.S. CONST. AMEND. I. In the school setting, although the

Court has recognized that students’ rights within school “are not automatically coextensive

with the rights of adults in other settings,” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675,

682 (1986), neither do students “shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate,” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.

503, 506 (1969). However, in the present case, the Court must decide school authorities’ reach

14

over students’ speech altogether outside the schoolhouse gates.

The Court should find that students enjoy the fullest protections of the First

Amendment when not on school grounds or taking part in a school-sponsored event.

Alternatively, if the Court is unwilling to articulate such a bright-line rule, it should

nevertheless uphold the Circuit Court’s ruling that the speech at issue in the present case does

not satisfy the Tinker requirement of a sufficient risk of “substantial and material disruption” in

order to be constitutionally prohibited by school authorities.

A. The Court should find that school authorities may not constitutionally regulate

speech wholly unconnected with the school, merely because the speaker

happens to be a student

The Supreme Court has never directly ruled on the question of whether school

authorities may ever discipline a student for speech created off-campus. See, e.g., Morse v.

Frederick, 551 U.S. 393, 400 (2007). However, the Supreme Court has repeatedly justified

limits on in-school speech by noting that the same speech would not be constitutionally

regulated outside the school context. Morse, 551 U.S. at 405; Hazelwood v. Kuhlmeier,

484 U.S. 260, 266 (1988). As Justice Brennan noted in his concurrence in Fraser, “[i]f respondent

had given the same speech outside of the school environment, he could not have been penalized

simply because government officials considered his language to be inappropriate.” Fraser, 478

U.S. at 688 (Brennan, J., concurring) (quoted in Morse, 551 U.S. at 405).

Lower courts have explicitly recognized that school authorities’ ability to regulate

speech that occurs off campus is severely limited. E.g. Thomas v. Bd. of Educ., Granville Cent.

Sch. Dist., 607 F.2d 1043, 1044-45 (2d Cir. 1979); Emmett v. Kent Sch. Dist. No. 415, 92 F.

Supp. 2d 1088, 1090 (W.D. Wash. 2000).

Because of this limit on school authority, “the community is not deprived of the salutary

effects of expression, and educational authorities are free to establish an academic environment

15

in which the teaching and learning process can proceed free of disruption.” Thomas, 607 F.2d at

1052. Indeed, the Thomas court further reasoned that it is because schools’ authority is limited

that we have such a “willingness to grant school officials substantial autonomy within their

academic domain.” Id. In Emmett, the court found that where the student’s speech did not

contain any threats and occurred “entirely outside of the school’s supervision or control,” it

could not be constitutionally regulated by the school.” 92 F. Supp. 2d at 1090. Like the speech

in Emmett, Anna’s blog contained no threats, and her conduct in creating and sharing the blog

occurred wholly off campus and outside any school-sponsored activity. Lyons, 509 F. Supp. 4th

at 6. Thus, previous Supreme Court jurisprudence, as well as lower court holdings, support a

bright-line rule prohibiting school authorities from exercising control over speech completely

unconnected with the school itself, merely because a student is the speaker.

B. Anna’s off-campus speech did not intend, risk, or result in a substantial and

material disruption to CPS and cannot be justified under Tinker

If the Court declines to find a bright-line rule prohibiting a school’s regulation of off-

campus speech, it should still uphold the Circuit Court’s ruling that the Anna’s speech did not

create a “foreseeable risk of a substantial and material disruption of school activities.” Lyons,

170 F.4th at 17. The Tinker Court first articulated this standard, requiring more than

undifferentiated fear” or “mere desire to avoid the discomfort and unpleasantness that always

accompany an unpopular viewpoint.” Tinker, 393 U.S. at 508-09.

In the present case before the Court, respondent’s online blog does not fall within the

Tinker exception, because Anna herself did not include any threatening language or call her

audience to action, and no past history at the school would reasonably lead school officials to

predict a substantial and material disruption.

1. Anna’s speech is not threatening and did not urge action from the

audience

16

In conducting an analysis under the Tinker material and substantial disruption standard,

courts look to whether the speech itself included a call to action that would likely result in such a

disruption. See Doninger v. Niehoff, 527 F.3d 41, 50 (2d Cir. 2008). In Doninger, the court

found it irrelevant that the speech occurred off campus because the student purposely intended it

“to encourage her fellow students to read and respond,” thus rendering it clearly foreseeable and

even intentional that her speech would reach campus. 527 F.3d at 50. Likewise, in Wisniewski v.

Board of Educ. of Weedsport Cent. Sch. Dist., the court held that a student’s off-campus speech

“reasonably understood as urging violent conduct” could be prohibited by the school. 494 F.3d

34, 38 (2d Cir. 2007). The court based its finding on three main factors: the threatening content

of the speech, the extensive distribution of it (to fifteen recipients, including classmates), and the

lengthy circulation period (the speech was circulated for three weeks). Id. at 39-40.

In contrast, the court in Killion v. Franklin Regional School District refused to uphold

a student’s suspension for off-campus speech involving a “Top Ten list” that contained

derogatory statements about a teacher’s appearance. 136 F. Supp. 2d 446, 448 (W.D. Pa.

2001). In striking down the suspension, the court noted that the student played no part in the

speech’s arrival on campus and stressed that the speech in question “was not threatening.” Id.

at 455.

Here, unlike the speech in Doninger and Wisniewski, the speech was not

threatening. As the Circuit Court properly concluded, Anna’s blog urged no one to take

action. Lyons, 170 Fd.4th at 18. At most, her blog may be regarded as a call for inaction,

advocating abstinence through a permanent link to a religious site. See Lyons, 509 F.

Supp. 4th at 6. Wholly absent from the cover is language which students might construe as

requesting they take some action, either against the female students depicted or the school

17

at large.

Furthermore, Anna’s circulation of the speech is distinguishable from the excessive

circulation present in Wisniewski. Anna sent the URL address of her blog post to only four of

the nearly 200 students that attend high school at CPS. Id. Moreover, Anna’s blog post was

accessible for a mere five days and was available for just three days before she was suspended.

Id. at 7-8. Although Anna’s audience was “undoubtedly connected” to CPS, “the speech was

entirely outside of the school’s supervision or control.” Emmett, 92 F. Supp. 2d at 1090.

2. Anna’s speech neither created a serious risk of nor resulted in substantial

and material disruption of the school

The Court should uphold the Circuit Court’s decision that Anna’s speech did not

result in “substantial and material disruption,” as required by the Court in Tinker. Lyons, 170

F.4th at 18. The Tinker standard requires “specificity and concreteness” when a school seeks

to silence student speech. Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 212 (3d Cir.

2001). It is only when the school “can point to a well-founded expectation of disruption-

especially one based on past incidents arising out of similar speech-the restriction may pass

constitutional muster.” Id.

What passes muster under the Tinker standard is exemplified in West v. Derby Unified

School District No. 260, 206 F.3d 1358 (10th Cir. 2000). In West, the court found that the

school could reasonably conclude a student’s display of a Confederate flag might cause

substantial disruption based on a “series of racial incidents,” confrontations, and at least one

fight, “some of which were related to the Confederate flag.” Id. at 1366.

Unlike West, the present case presents no past history of confrontations, physical or

otherwise, sufficient to justify a reasonable prediction of disruption. The District Court

incorrectly found that Duncan Hall’s past violent behavior and Anna’s past interaction with a

18

fellow classmate constituted a history of past incidents sufficient to regulate the speech at

issue here. Lyons, 509 F. Supp. 4th at 12. Instead, these two isolated interactions, previously

unconnected in any way, do not rise to the level articulated by the court in West. The past

incident involving Anna involves purely on-campus (and in- person) conduct and is not

sufficiently connected to the conduct currently before the Court. Id. at 8. As to the

pregnancies, when news of the pregnancies spread to the CPS student body, only harmless

rumors circulated, without any record of incident. Id. at 5. Hall’s individual past violent

behavior is also not sufficient to constitute a reasonable risk of disruption. As the court

articulated in Beussink v. Woodland R-IV Sch. Dist., “[d]isliking or being upset by the content

of a student’s speech is not an acceptable justification for limiting student speech under

Tinker.” 30 F. Supp. 2d 1175, 1180 (E.D. Mo. 1998).

Moreover, the court in Beussink explicitly found that where there is no finding that the

conduct in question would interfere with “the requirements of appropriate discipline in the

operation of the school,” the regulation on speech is unconstitutional. Id. In the present case,

not only was the school aptly able to deal with Hall’s threats and conduct, it was likewise able to

discipline any students who sought to access the blog on campus, as exemplified by its swift

discipline of J. David Straub, who accessed the blog at school. Lyons, 509 F. Supp. 4th at 7.

Here, the disruptions that occurred following Anna’s blog post were minimal and did not

substantially disrupt any classes or the school’s basic order. Tinker, 363 U.S. at 513. As the

Circuit Court noted, “[c]lassroom chatter and delays,” and occasional teacher meetings cannot

reasonably be considered a substantial and material disruption. Lyons, 170 F.4th at 18. Nothing

in the record suggests that the school’s decision to block some Internet access had any disruptive

effect on students’ learning. Lyons, 509 F. Supp. 4th at 7. With respect to the two teachers

whose lessons plans changed after this incident, their actions were not compelled by a loss of

19

control or incapability. See id. Rather, one teacher chose to abandon her class in order to meet

with Principal Zahm to discuss the incident. Lyons, 509 F. Supp. 4th at 7. Nothing mandated

that she report this incident immediately, rather than teach her class and report the situation in

between classes. Id. CPS’s health teacher likewise made the rational choice to cut an unrelated

unit she had planned to present during that week, turning instead to teen pregnancy. Id. Nothing

suggests that she was required to approach this topic or risk disorder in her classroom. See id.

Because the record suggests no past history of incidents that would lead school

officials to reasonably predict that Anna’s off-campus speech would create a substantial and

material disruption, and because none occurred, CPS’s suspension of Anna cannot satisfy the

requirements of Tinker and is therefore unconstitutional under the auspices of the First

Amendment.

C. Fraser was not intended to apply to speech that occurs outside of the school

setting

Regardless of which test the Court decides to use in analyzing whether CPS violated

Anna’s First Amendment rights, the Circuit Court correctly determined that the Supreme Court’s

decision in Fraser is inapplicable to the current case. Lyons, 170 F.4th at 16. In Fraser, the

Court held that where a student delivers a sexually explicit speech during a school assembly, the

decision to punish that student “properly rests with the school board.” 478 U.S. at 683. The

Court implied that this speech would be constitutionally protected if given outside of the school

setting. Id. at 682. Justice Brennan noted the contrast explicitly, in a statement quoted by the

Morse majority twenty-one years later. 551 U.S. at 405 (quoting Fraser, 478 at 688 (Brennan,

J., concurring)).

Subsequent cases have likewise found that Fraser is strictly limited to speech that occurs

on school property. Killion, 136 F. Supp. 2d at 453; Emmett, 92 F. Supp. 2d at 1090. Like in

20

Emmett, respondent’s speech at issue did not originate at school and was not “produced in

connection with any class or school project.” Id. Under these precedents, the Circuit Court

appropriately declined to employ a Fraser analysis when analyzing respondent’s First

Amendment protections. Lyons, 170 F.4th at 17.

CONCLUSION

For these reasons, this Court should affirm.

a

APPENDIX

Constitutional Provisions

U.S. CONST. amend. I

Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom of speech, or of the press; or the right of

the people peaceably to assemble, and to petition the Government for a redress of

grievances.

U.S. CONST. amend. XIV

1. All persons born or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

2. Representatives shall be apportioned among the several States according to their

respective numbers, counting the whole number of persons in each State, excluding

Indians not taxed. But when the right to vote at any election for the choice of electors

for President and Vice-President of the United States, Representatives in Congress, the

37

Executive and Judicial officers of a State, or the members of the Legislature thereof, is

denied to any of the male inhabitants of such State, being twenty-one years of age, and

citizens of the United States, or in any way abridged, except for participation in

rebellion, or other crime, the basis of representation therein shall be reduced in the

proportion which the number of such male citizens shall bear to the whole number of

male citizens twenty-one years of age in such State.

3. No person shall be a Senator or Representative in Congress, or elector of President

and Vice-President, or hold any office, civil or military, under the United States, or

under any State, who, having previously taken an oath, as a member of Congress, or as

an officer of the United States, or as a member of any State legislature, or as an

executive or judicial officer of any State, to support the Constitution of the United States,

shall have engaged in insurrection or rebellion against the same, or given aid or comfort

to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove

such disability.

4. The validity of the public debt of the United States, authorized by law, including

debts incurred for payment of pensions and bounties for services in suppressing

38

insurrection or rebellion, shall not be questioned. But neither the United States nor

any State shall assume or pay any debt or obligation incurred in aid of insurrection

or rebellion against the United States, or any claim for the loss or emancipation of

any slave; but all such debts, obligations and claims shall be held illegal and void.

5. The Congress shall have power to enforce, by appropriate legislation, the

provisions of this article.

Civil Action for Deprivation of Rights, 42 U.S.C. § 1983

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress, except that in

any action brought against a judicial officer for an act or omission taken in such

officer's judicial capacity, injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief was unavailable. For the

purposes of this section, any Act of Congress applicable exclusively to the

District of Columbia shall be considered to be a statute of the District of

Columbia.