     12-753-cv
     A.M. ex rel. McKay v. Taconic Hills Cent. Sch. Dist.
 1
 2                               UNITED STATES COURT OF APPEALS
 3                                   FOR THE SECOND CIRCUIT
 4
 5                                             SUMMARY ORDER
 6
 7   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
 8   CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007,
 9   IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
10   PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1. WHEN CITING A
11   SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
12   MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
13   DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING
14   A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
15   REPRESENTED BY COUNSEL.
16
17          At a stated term of the United States Court of Appeals for the Second Circuit, held at
18   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
19   on the 30th day of January, two thousand thirteen.
20
21           PRESENT: DENNY CHIN,
22                            CHRISTOPHER F. DRONEY,
23                                                     Circuit Judges,
24                            JOHN GLEESON,
25                                                     District Judge.*
26           ------------------------------------------------------------------
27
28           A.M., a minor, by her Parent and Next Friend, JOANNE MCKAY,
29
30                                              Plaintiff-Appellant,
31
32                                      v.                                        12-753-cv
33
34           TACONIC HILLS CENTRAL SCHOOL
35           DISTRICT,**
36
37                                              Defendant-Appellees.
38
39           ------------------------------------------------------------------


          * The Honorable John Gleeson, United States District Judge for the Eastern District of
     New York, sitting by designation.
             **
              The Clerk of the Court is respectfully directed to amend the caption to conform with
     the above.

                                                            1
 1          FOR APPELLANT:                David C. Gibbs, III, Gibbs Law Firm, P.A., Seminole,
 2                                        FL (on submission).
 3
 4          FOR APPELLEES:                Patrick J. Fitzgerald and Scott P. Quesnel, Girvin &
 5                                        Ferlazzo, P.C., Albany, NY (on submission).
 6
 7          FOR AMICUS:                   Ayesha N. Khan and Alex J. Luchenitser, Americans
 8                                        United for Separation of Church and State,
 9                                        Washington, DC, for Americans United for Separation
10                                        of Church and State as amici curiae in support of
11                                        Appellees (on submission).
12
13          Appeal from a judgment of the United States District Court for the Northern
14   District of New York (Sharpe, C.J.).
15          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
16   AND DECREED that the judgment of the District Court is AFFIRMED.
17          Plaintiff-Appellant A.M., by and through her mother, Joanne McKay, appeals from
18   the January 23, 2012, decision and order of the district court granting summary judgment
19   to Defendant-Appellee Taconic Hills Central School District (the “School District”) on all
20   claims.1 On appeal, A.M. seeks declaratory relief and damages from the School District
21   under 42 U.S.C. § 1983 to redress violations of A.M.’s rights under the First and
22   Fourteenth Amendments of the United States Constitution and Article I, Section 8 of the
23   New York Constitution. We assume the parties’ familiarity with the underlying facts and
24   procedural history of this case, which we reference only as necessary to explain our
25   decision to affirm.
26   I.     Background
27          The following facts, contained in the record on the Defendants’ motion for
28   summary judgment, are recounted in the light most favorable to A.M. They are
29   undisputed unless otherwise indicated.
30


            1
             The district court had previously granted a motion to dismiss with respect to Defendants
     Dr. Mark Sposato, in his official capacity as Superintendent of the School District, and Dr. Neil
     Howard, in his official capacity as Principal of Taconic Hills Middle School. See ECF No. 22.
                                                       2
 1          Taconic Hills Middle School (the “Middle School”) is part of the School District,
 2   which is a public school system organized under the laws of the State of New York.
 3   During the 2008-09 academic year, A.M. was a student in the eighth grade at the Middle
 4   School, and had been elected class co-president of the student council with fellow student
 5   A.S. By virtue of this position, both A.M. and A.S. were each permitted to deliver a “brief
 6   message” at the annual Moving-Up Ceremony (the “Ceremony”), which was scheduled
 7   for June 25, 2009, in the Middle School’s auditorium.
 8          Several days before the Ceremony, A.M. asked her English and Language Arts
 9   teacher, Jamie Keenan, to review her draft speech for “punctuation and grammar.” Upon
10   reading the speech, Keenan became concerned regarding the appropriateness of the final
11   sentence in the speech, which read: “As we say our goodbyes and leave middle school
12   behind, I say to you, may the LORD bless you and keep you; make His face shine upon
13   you and be gracious to you; lift up His countenance upon you, and give you peace.”2 On
14   June 24, 2009, Leanne Thornton, the faculty advisory of the student council, also
15   reviewed the speech. Thornton expressed concerns similar to Keenan and recommended
16   that Principal Neil Howard review the speech as well.3 Howard then scheduled a meeting
17   for the morning of June 25, 2009, with A.M. and A.S. to review their speeches for the
18   Ceremony.4



            2
              A.M. later described this language as a “blessing” and indicated that she was “taught to
     give blessings and it was good to receive blessings from God.”
            3
              The parties appear to dispute whether Principal Howard had a policy of reviewing the
     students’ speeches for the Ceremony beforehand, or whether he only did so in this case because
     A.M.’s speech was brought to his attention and so instituted a policy of review only after the
     events in the instant case. However, the parties do not dispute that the Middle School’s
     principals typically heard the students’ speeches during a rehearsal the morning of the
     Ceremony. The parties also do not dispute that Keenan, Thornton, and Howard all reviewed
     A.M.’s speech in this case and shared concerns regarding its appropriateness for the Ceremony.
            4
              Neither Keenan, Thornton, nor Howard knew the precise source of the language in the
     final sentence of A.M.’s speech, which is a quotation from verses 24-26 of chapter 6 of the Book
     of Numbers of the Old Testament.
                                                     3
 1          At the meeting on June 25, after approving A.S.’s speech, Howard requested that
 2   A.M. remove the last sentence of her speech because it sounded “too religious” and
 3   because it could be perceived as an endorsement of one religion over another. A.M.
 4   refused to remove the lines and gave Howard pamphlets she and her mother had found on
 5   the internet describing the rights of public school students under the Free Speech Clause
 6   of the First Amendment. Howard then called A.M.’s mother, who objected to the removal
 7   of the language as well and requested that Howard speak with Superintendent Sposato.
 8   Howard spoke with Sposato and the School District’s legal counsel, who agreed that
 9   allowing A.M. to deliver the speech as written could violate the Establishment Clause.
10   Sposato then called A.M.’s mother and informed her that A.M. would not be permitted to
11   speak at the Ceremony unless she removed the last sentence from her speech. A.M. and
12   her mother agreed to comply with this request.
13          Later that evening at the Ceremony, A.M. delivered her speech without the final
14   sentence. The Ceremony was entirely funded and insured by the School District, held in
15   the Middle School’s auditorium, and publicized on materials bearing the School District’s
16   letterhead.5 The Ceremony also featured banners and signs decorated with the Middle
17   School’s mascot and insignia, and the students received “diplomas” signifying their
18   ascent to high school. The Ceremony was attended by the students and their families, the
19   Middle School’s faculty, and various School District administrators.
20          Shortly after the Ceremony, A.M. commenced this suit alleging violations of her
21   rights under the Free Speech Clause of the First Amendment of the United States
22   Constitution and under Article I, Section 8 of the New York Constitution.6 On January 25,
23   2011, the district court granted the Defendants’ motion to dismiss with respect to Sposato


            5
             A.M. argues that the student council runs the Ceremony, but otherwise concedes that
     the Middle School funds and generally organizes the Ceremony.
            6
              A.M. cites to several Establishment Clause cases in her brief, but does not otherwise
     raise an Establishment Clause claim. In addition, the district court decided this case solely on
     Free Speech Clause grounds. We therefore restrict our analysis to the Free Speech Clause.
                                                     4
 1   and Howard as duplicative of the claims against the School District, but denied the
 2   motion to dismiss with respect to the School District. On January 23, 2012, the district
 3   court granted the School District’s motion for summary judgment.
 4   II.    Discussion
 5          A.     Legal Standard
 6          This Court reviews de novo a district court’s grant of summary judgment. See, e.g.,
 7   Easterling v. Collecto, Inc., 692 F.3d 229, 232 (2d Cir. 2012). A grant of summary
 8   judgment should be affirmed “only where there is no genuine issue of material fact to be
 9   tried, and the facts as to which there is no such issue warrant the entry of judgment for the
10   moving party as a matter of law.” Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d
11   Cir. 2010) (citing Fed. R. Civ. P. 56(c)(2)). In making its determinations, the court
12   deciding summary judgment should “view the facts and draw reasonable inferences in the
13   light most favorable to the party opposing the summary judgment motion.” Scott v.
14   Harris, 550 U.S. 372, 378 (2007) (internal quotation marks and alteration omitted).
15          B.     Free Speech Claim
16          To determine whether the Defendants abrogated A.M.’s free speech rights, it is
17   necessary first to determine the appropriate governing standard. If A.M.’s address for the
18   Ceremony constituted “school-sponsored expressive activities,” then the standard is given
19   by Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). Under Hazelwood,
20   educators may exercise editorial control over student speech “so long as their actions are
21   reasonably related to legitimate pedagogical concerns.” Id. at 273. If, on the other hand,
22   A.M.’s address constituted “a student’s personal expression that happens to occur on the
23   school premises,” id. at 271, then the standard is given by Tinker v. Des Moines
24   Independent Community School District, 393 U.S. 503 (1969). Under Tinker, school
25   officials may exercise editorial control over student speech only if the speech at issue
26   would “materially and substantially interfere with the requirements of appropriate

                                                   5
 1   discipline in the operation of the school.” Tinker, 393 U.S. at 509 (internal quotation
 2   marks omitted).7
 3          We agree with the district court’s determination as a matter of law that A.M.’s
 4   address for the Ceremony constituted “school-sponsored expressive activities” and that
 5   Hazelwood thus provides the governing standard.8 Student speech constitutes a “school-
 6   sponsored expressive activity” if observers, such as “students, parents, and members of
 7   the public[,] might reasonably perceive [the speech] to bear the imprimatur of the school.”
 8   Morse v. Frederick, 551 U.S. 393, 405 (2007) (quoting Hazelwood, 484 U.S. at 271). In
 9   the instant case, the Ceremony was set to occur “at a school-sponsored assembly, to take
10   place in the school [auditorium], to which parents of the [students] were invited.” Peck ex
11   rel. Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 629 (2d Cir. 2005). In addition,
12   the School District funded and managed the Ceremony, and the Middle School’s name
13   and insignia appeared prominently on banners, signs, and programs prepared specifically
14   for the Ceremony. See R.O. ex rel. Ochshorn v. Ithaca City Sch. Dist., 645 F.3d 533, 541
15   (2d Cir. 2011). In light of the School District’s involvement in directing the Ceremony
16   and in reviewing the speeches before they were delivered, we believe as a matter of law
17   that a reasonable observer would perceive A.M.’s speech as being endorsed by the



            7
              The Supreme Court has also articulated two other standards governing restrictions on
     student speech not relevant to the instant case. See Morse v. Frederick, 551 U.S. 393 (2007)
     (addressing student speech that promotes illegal drug use); Bethel Sch. Dist. No. 403 v. Fraser,
     478 U.S. 675 (1986) (addressing vulgar, lewd, obscene, or offensive student speech).
            8
               The parties did not substantively address the question of the type of forum represented
     by the Middle School auditorium at the Ceremony. We nonetheless assume without deciding that
     the district court correctly accepted the School District’s “conclusory assertion that the school
     auditorium was a non-public forum.” A.M., 2012 WL 177954, at *3 n.4. In a non-public forum,
     “[r]estrictions on speech . . . need only be reasonable and viewpoint neutral” to survive
     constitutional scrutiny. Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 626 (2d
     Cir. 2005) (internal quotation marks omitted).
                                                       6
 1   Middle School, and that Hazelwood thus provides the governing standard for determining
 2   the appropriateness of the Defendants’ conduct.9
 3          The operative question under Hazelwood is whether the Defendants’ actions were
 4   “reasonably related to legitimate pedagogical concerns.” 484 U.S. at 273. To determine
 5   whether the Defendants acted “reasonably,” it is necessary to ascertain whether the
 6   Defendants’ request that A.M. remove the final sentence of her speech constituted
 7   content-based or viewpoint-based restrictions on speech. Even under the deferential
 8   standard articulated in Hazelwood, viewpoint discrimination can only be justified by an
 9   “overriding” state interest. Peck, 426 F.3d at 633. Viewpoint discrimination occurs when
10   the government seeks to regulate “speech when the specific motivating ideology or the
11   opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger v.
12   Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995). In the context of
13   religious speech, viewpoint discrimination would include making a forum accessible to
14   speakers expressing “all views about [secular] issues . . . except those dealing with the
15   subject matter from a religious standpoint.” Id. at 830 (quoting Lamb’s Chapel v. Ctr.
16   Moriches Union Free Sch. Dist., 508 U.S. 384, 393 (1993)).
17          By contrast, content discrimination entails the exclusion of a “general subject
18   matter” from a forum, rather than a “prohibited perspective.” Bronx Household of Faith v.
19   Bd. of Educ., 650 F.3d 30, 39 (2d Cir.) (quoting Rosenberger, 515 U.S. at 831), cert.
20   denied, 132 S.Ct. 816 (2011). In the context of religious speech, content discrimination


            9
              See also Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1228 (10th Cir.
     2009) (“[I]n order to determine whether challenged speech is school-sponsored and bears the
     imprimatur of the school, a reviewing court should appraise the level of involvement the school
     had in organizing or supervising the contested speech . . . .”); Lassonde v. Pleasanton Unified
     Sch. Dist., 320 F.3d 979, 985 (9th Cir. 2003) (“The graduation ceremony was a school-sponsored
     function that all graduating seniors could be expected to attend.”); Brody ex rel. Sugzdinis v.
     Spang, 957 F.2d 1108, 1119 (3d Cir. 1992) (“The process for setting the format and contents of a
     graduation ceremony are more likely to resemble the tightly controlled school newspaper
     policies at issue in Hazelwood . . . .”).
                                                      7
 1   would entail excluding speech for which “there is no real secular analogue.” Id. at 38
 2   (quoting Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207, 221 (2d Cir.
 3   1997) (Cabranes, J., concurring in part and dissenting in part)). Where the government
 4   engages in content-based discrimination in the context of school-sponsored speech, the
 5   “Hazelwood standard does not require that the [government-imposed restrictions] be the
 6   most reasonable or the only reasonable limitations, only that they be reasonable.” Peck,
 7   426 F.3d at 630 (internal quotation marks omitted); see also Marchi v. Bd. of Coop. Educ.
 8   Servs. of Albany, 173 F.3d 469, 476 (2d Cir. 1999) (“[W]hen government endeavors to
 9   police itself and its employees in an effort to avoid transgressing Establishment Clause
10   limits, it must be accorded some leeway, even though the conduct it forbids might not
11   inevitably be determined to violate the Establishment Clause . . . .”).
12          We believe that the final sentence in A.M.’s speech constituted purely religious
13   speech and that the Defendants, in requesting that she remove it from her address, were
14   thus engaged in content-based discrimination. The final sentence in A.M.’s speech
15   consisted of a direct quotation from the Old Testament calling for a divine blessing of the
16   audience, rather than a statement offering a religiously-informed viewpoint on an
17   otherwise secular subject matter. See Rosenberger, 515 U.S. at 830; see also Bronx
18   Household, 650 F.3d at 39 (noting that a public school may lawfully exclude “the conduct
19   of a certain type of activity – the conduct of worship services – and not . . . the free
20   expression of religious views associated with it”). Statements of this nature have “no real
21   secular analogue.” Bronx Household, 650 F.3d at 38 (internal quotation marks omitted).10
22   Our understanding of A.M.’s speech is confirmed by her own characterization of the



            10
                 Cf. Lee v. Weisman, 505 U.S. 577, 603 (1992) (Blackmun, J., concurring)
     (“There can be ‘no doubt’ that the ‘invocation of God’s blessings’ . . . is a religious
     activity. In the words of Engel, the . . . prayer ‘is a solemn avowal of divine faith and
     supplication for the blessings of the Almighty. The nature of such a prayer has always
     been religious.’” (quoting Engel v. Vitale, 370 U.S. 421, 424 (1962))).
                                                    8
 1   sentence as a “blessing” motivated by her desire to deliver “blessings from God.” See id.
 2   at 46 (examining the subjective intent of the speaker to determine the nature of the speech
 3   (citing Christian Legal Soc’y v. Martinez, 130 S.Ct. 2971, 2982-84 (2010)). We therefore
 4   conclude that the Defendants acted reasonably in requiring that A.M. remove the final
 5   sentence from her speech.
 6          In addition to determining that the Defendants were engaged in content-based
 7   discrimination, we agree with the district court that the Defendants’ desire to avoid
 8   violating the Establishment Clause represented a “legitimate pedagogical concern.”
 9   “There is no doubt that compliance with the Establishment Clause is a state interest
10   sufficiently compelling to justify content-based restrictions on speech.” Id. at 40 (quoting
11   Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761-62 (1995) (plurality
12   opinion)).11 In the context of student speech, a “school must also retain the authority to
13   refuse to sponsor student speech that might reasonably be perceived . . . to associate the
14   school with any position other than neutrality on matters of political controversy.”
15   Hazelwood, 484 U.S. at 272 (internal citation omitted). As a result, we conclude that the
16   Defendants were motivated by “legitimate pedagogical concerns” and that their actions
17   thus complied with the Hazelwood standard. Accordingly, we affirm the district court’s
18   grant of summary judgment to the School District on A.M.’s free speech claim.
19          Because we affirm the district court’s judgment with respect to A.M.’s federal
20   cause of action, we correspondingly affirm the district court’s dismissal of A.M.’s claim
21   grounded in the New York State Constitution as an inappropriate exercise of
22   supplemental jurisdiction. See 28 U.S.C. § 1367(c).


            11
               See also Corder, 566 F.3d at 1228-29 (holding that so long as the Hazelwood test for
     whether speech bears a school’s imprimatur is met, the “[legitimate] pedagogical [concern] test
     may be satisfied ‘simply by the school district’s desire to avoid controversy within a school
     environment’” (quoting Fleming v. Jefferson Cnty. Sch. Dist. R-1, 298 F.3d 918, 925-26 (10th
     Cir. 2002))); Webster v. New Lenox Sch. Dist. No. 122, 917 F.2d 1004, 1008 (7th Cir. 1990)
     (finding a school board’s “legitimate concern with possible establishment clause violations” to
     be a sufficient reason to prohibit “the teaching of creation science to junior high school
     students”).
                                                       9
1          We have considered all of A.M.’s other arguments and conclude that they are
2   without merit. For the foregoing reasons, the judgment of the district court is
3   AFFIRMED.
4                                                     FOR THE COURT:

5                                                     Catherine O’Hagan Wolfe, Clerk of Court

6




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