                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                     FILED
                                                           U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                               No. 05-13813                      August 22, 2006
                         ________________________             THOMAS K. KAHN
                                                                    CLERK
                 D. C. Docket No. 04-00184-CV-FTM-29-SPC

MICHELLE HEINKEL,
by and through her parent and next friend Debra Heinkel,
NATE CORDRAY,

                                                            Plaintiffs-Appellants,

                                     versus

SCHOOL BOARD OF LEE COUNTY, FLORIDA,

                                                            Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                               (August 22, 2006)


Before BLACK, BARKETT and COX, Circuit Judges.

PER CURIAM:
      Michelle Heinkel and Nate Cordray brought this action against the School

Board of Lee County (“the School Board”) seeking declaratory relief, injunctive

relief, and damages for the School Board’s alleged violation of Plaintiffs’

constitutional rights. Specifically, Plaintiffs alleged that the School Board maintains

a facially unconstitutional policy regarding distribution of written materials to

students (“the Policy”) and that the Policy had been unconstitutionally applied to

deny them their rights to free speech, free exercise of religion, freedom from

establishment of religion, and equal protection.       The district court dismissed

Cordray’s claims for lack of standing and granted summary judgment for the School

Board on Heinkel’s claims. Plaintiffs appeal the judgment only as to their First

Amendment speech claims, arguing: (1) Cordray has standing to challenge the Policy,

(2) the Policy is a facially unconstitutional prior restraint on speech, and (3) the

Policy was unconstitutionally applied to bar their speech. We affirm in part and

reverse in part.

             I. FACTUAL AND PROCEDURAL BACKGROUND

      In early April 2003, Freedom to Learn, a non-profit organization, informed the

School Board that students in its schools intended to commemorate The Day of

Remembrance at school on April 11, 2003. (R.1-26 ¶¶ 12, 27, 34.) The Day of

Remembrance is a day “set aside to remember the 40 million children who have been

                                          2
lost to elective abortion and to remember the pain experienced by women who have

had an abortion.” (R.1-26 ¶ 11.) Freedom to Learn stated that students in the Lee

County schools intended to distribute written materials at school. (R.1-26 ¶¶ 31-34.)

In response, the School Board informed Freedom to Learn that the School Board had

a written policy governing distribution of written materials on school properties and

provided Freedom to Learn with a copy of that policy.1 (R.1-26 ¶¶ 35, 39.) On April

       1
         The Policy identified is School District of Lee County Administrative Regulation 3.15,
entitled “Advertising.” (R.1-26 Ex. B.) It states, in pertinent part:

               (4) Advertisement Through the Distribution of Handouts
                      (a) Any entity requesting handouts be distributed to
               students at a District school shall submit the handout to the
               Superintendent or his/her designee for consideration.
                      (b) The Superintendent or his/her designee shall apply the
               standards in paragraph (1)(a) when considering approval.

Paragraph (1)(a) states:

               The Principal of each school is given authority to approve
               advertising on the school campus in the form of signs or other
               displays containing the company or organization name. The
               Principal is also given authority to approve use of the school
               campus or a portion thereof as part of an advertisement. Principal
               will give approval for such advertising only when such results in
               the school receiving funds or property from the advertiser.

Lee County Superintendent of Schools James W. Browder testified that, despite the statement in
Paragraph 4, Paragraph (1)(a) does not provide all the applicable standards for his consideration
of handouts. He understands that he is to apply the standards in Paragraph (1)(b). (Browder
Dep. at 15-16.) Paragraph (1)(b) of the Policy states:

               The Principal shall apply the following standards in deciding
               whether to approve advertising.
                       1. No advertisements may be obscene or promote products
               or services, which minors may not legally purchase or use.

                                                3
10, 2003, pursuant to the Policy, Freedom to Learn gave Lee County Superintendent

of School James W. Browder a copy of the materials it claimed students wished to

distribute. (R.1-26 ¶ 45.) Later that same day, Browder denied Freedom to Learn’s

request to distribute the written materials, explaining that the literature would “tend

to create a substantial disruption in the school environment.” (R.1-26 Ex. C.)

       On January 29, 2004, Browder sent a letter to Freedom to Learn asking that any

request to distribute materials on the 2004 Day of Remembrance be made at least one

week in advance of the desired distribution date. (R.1-26 Ex. F.) No such request

was made.

       During the 2003-2004 school year, Heinkel was a seventh grader at Cypress

Lake Middle School, a Lee County school that includes sixth through eighth grades.

(R.1-26 ¶ 7.) Cordray was a twelfth grader at Riverdale High School, a Lee County




                       2. No advertisements may contain libelous material.
                       3. No advertisement shall include political, religious or
               organizational symbols and shall be non-proselytizing.
                       4. No advertisement may be approved which would tend to
               create a substantial disruption in the school environment.

        While the written Policy appears to apply only to commercial speech and not to student
distribution of non-commercial materials, the School Board maintains that it applies to all
distributions of written materials on school property. (Browder Dep. at 8-10, 18, 25.) Therefore,
for purposes of this lawsuit, the Policy includes the School Board’s unwritten rule that the Policy,
including the standards in Paragraph (1)(b), extends to all distributions of written materials on
school property.

                                                 4
school that includes ninth through twelfth grades.2 (R.1-26 ¶ 19.) To observe the

2004 Day of Remembrance, Heinkel wished to wear a Day of Remembrance t-shirt,3

take a vow of silence during non-instructional time, and distribute materials about

abortion and abortion alternatives to her classmates during non-instructional time.

(R.1-26 ¶¶ 32, 33.)

       Though neither Heinkel nor any other student had made a request to distribute

written materials on the Day of Remembrance, Heinkel filed this lawsuit, through her

mother, on March 26, 2004. In the complaint, she alleged that the School Board’s

application of the Policy had denied her the opportunity to distribute pro-life

literature on the Day of Remembrance in 2003 and she sought an injunction

forbidding the School Board from applying the Policy to deny her that opportunity

again in 2004.

       After the district court denied Heinkel’s request for an injunction on April 14,

Heinkel faxed two letters to Browder, on April 14 and 15, requesting permission to

distribute specific pieces of pro-life literature on April 16, 2004, the 2004 Day of

Remembrance. (R.1-26, Ex. G.) On April 15, Heinkel’s attorney also faxed Browder

       2
          Cordray withdrew from Riverdale High School during the pendency of this lawsuit in the
district court. He is no longer a student in any Lee County school. (R.2-71 at 9.)
       3
        The front of the t-shirt says: “Day of Remembrance, 45 Million lost to abortion since
1973, Remembering in silence.” The back says: “We give a voice to those who cannot speak.
We stand for those who never could. We remember the 1/3 of our generation lost.” (R.2-53.)

                                               5
a letter reiterating Heinkel’s request and stating, “We are also requesting on behalf

of a high school student to distribute the same literature.” (R.1-26, Ex. H.) That

same day, Browder denied Heinkel’s request to distribute the materials at her middle

school, stating in a reply letter that, pursuant to the Policy, he had reviewed the

literature and that he had determined that distribution of “the documents would tend

to create a substantial disruption in the school environment.” (R.1-26, Ex. I.)

Browder did not address distribution of the materials in a high school, nor did he

prohibit any students from wearing the Day of Remembrance t-shirt.

       On April 16, Heinkel filed a pleading styled “Verified Amended Complaint for

Declaratory Judgment, Preliminary and Permanent Injunctive Relief and Damages,”

in which Cordray was added as a plaintiff and factual allegations regarding events

subsequent to March 26, 2004, were made.4 (R.1-26.) Subsequently, the parties filed

cross-motions for summary judgment. The district court granted the School Board’s




       4
         Because this pleading sets forth facts occurring after the original complaint was filed, it
is a supplemental complaint, the filing of which requires leave of the district court. Fed. R. Civ.
P. 15(d). In this case, no motion for leave to file the supplemental pleading was made, and no
leave was granted. However, the School Board made no objection to the supplemental
complaint. The parties fully litigated the issues presented in the supplemental complaint in their
cross-motions for summary judgment. And the district court granted judgment for the School
Board after considering these motions. Thus, while the claims premised on facts alleged solely
in the supplemental complaint were not properly before the district court, they appear to have
been “tried by express or implied consent of the parties,” see Fed. R. Civ. P. 15(b), and therefore
will be reviewed by this court.

                                                 6
motion, holding that Cordray lacks standing to maintain the suit and that Heinkel’s

challenges fail as a matter of law. (R.2-71.)

                          II. STANDARDS OF REVIEW

      “We review the district court’s grant of summary judgment de novo, applying

the same legal standard as the district court. Reviewing the record evidence in the

light most favorable to appellant, we must determine if there are any genuine issues

of material fact that preclude judgment as a matter of law.” Coleman v. Miller, 117

F.3d 527, 529 (11th Cir. 1997) (citation omitted). We review the factual findings of

the district court for clear error. Fed. R. Civ. P. 52(a).

                                 III. DISCUSSION

                                     A. Standing

      The district court dismissed Cordray because it held that he lacked standing to

maintain a lawsuit against the School Board. The district court supported this holding

with a factual finding that there is no evidence that Cordray actually sought

permission to distribute the literature. That finding is not clearly erroneous; indeed,

it is supported by the record. In arguing that he suffered injury-in-fact, Cordray relies

on a April 14, 2004 letter from Freedom to Learn to Browder, which states, “We are

also requesting on behalf of a high school student to distribute the same literature on

the Day of Remembrance, April 16, 2004.” (R.1-26, Ex. H.) Cordray contends that

                                            7
he was that high school student. There is no evidence in the record, however,

supporting this bare assertion. And, because the record contains no evidence that the

School Board actually applied the Policy to deny Cordray the ability to distribute

materials, Cordray lacks standing to bring an as-applied challenge to the School

Board’s actions.

      Cordray also lacks standing to bring a facial challenge to the Policy. A

plaintiff who poses a facial challenge to a policy restraining speech need not actually

have the policy applied to him. City of Lakewood v. Plain Dealer Publ. Co., 486 U.S.

750, 755-56, 108 S. Ct. 2138, 2142-43 (1988); United States v. Frandsen, 212 F.3d

1231, 1235 (11th Cir. 2000). But, he must be within the class of persons to whom the

restraint applies. Frandsen, 212 F.3d at 1235; see also White’s Place, Inc. v. Glover,

222 F.3d 1327, 1329 (11th Cir. 2000) (“‘A court can be most certain that a

constitutional challenge grows out of a genuine dispute where the allegedly

unconstitutional statute interferes with the way the plaintiff would normally conduct

his or her affairs.’”) (quoting Leverett v. City of Pinellas Park, 775 F.2d 1536, 1539

(11th Cir. 1985)). Here, the Policy applies to all persons having a desire to distribute

written materials to students in Lee County schools. (Browder Dep. at 18, 25.) The

record contains nothing to indicate that Cordray maintains such a desire subsequent

to his withdrawal from Lee County schools. Thus, there is nothing to indicate that

                                           8
Cordray is a member of the class of persons with standing to pose a facial challenge

to the Policy.

       We therefore affirm the district court’s dismissal of Cordray as a plaintiff in

this lawsuit. Heinkel’s standing is undisputed. We proceed with an analysis of her

claims.

                                 B. The Facial Challenge

       Heinkel alleges that the Policy is facially unconstitutional. Addressing this

argument in its summary judgment order, the district court recognized that the Policy

is content-based and that it lacks safeguards to guide and restrain the discretion of the

School Board in determining whether and which written materials may be distributed.

The district court described the lack of safeguards as “troublesome.” (R.2-71 at 14.)

We agree.

       “There is nothing unconstitutional per se in a requirement that students submit

materials to the school administration prior to distribution.” Shanley v. Northeast

Indep. Sch. Dist., 462 F.2d 960, 969 (5th Cir. 1972).5 But the policy at issue in this

case is a prior restraint on speech that is unconstitutional. Frandsen, 212 F.3d at

1236-37 (“A prior restraint on expression exists when the government can deny


       5
        In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the Fifth Circuit handed down prior to close
of business on September 30, 1981.

                                                9
access to a forum for expression before the expression occurs.”) (citation omitted).

The Policy’s prohibition of all religious and political symbols is a content-based

restriction unsupported by a reasonable belief of the School Board that all such

expression would create substantial disruption in the Lee County schools. Shanley,

462 F.2d at 970 (holding that presumably protected student speech cannot be

prohibited by the school unless there are “facts which might reasonably have led

school authorities to forecast substantial disruption of or material interference with

school activities”) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.

503, 514, 89 S. Ct. 733, 740 (1969)). Also, the Policy contains no time limits within

which the School Board must act to grant or deny a request to distribute documents.6

Thus, it presents significant risks of arbitrary censorship. See Solantic, LLC v. City

of Neptune Beach, 410 F.3d 1250, 1270-71 (11th Cir. 2005) (holding content-based

prior restraints must ensure that decisions are made within a specified time period);

Frandsen, 212 F.3d at 1239 (holding that a prior restraint that fails to limit time in

which decision maker must act presents the risk of arbitrary suppression and is

       6
        In response to a Suggestion of Mootness issued by this court after oral argument, the
School Board provided a copy of the Policy, as amended August 23, 2005, which now states that
“The Superintendent or his/her designee shall respond to the request within seven (7) calendar
days.” Amended Policy 3.15(4)(b). While the revised Policy now sets a time limit on the
Superintendent’s response to a request, it still “‘fails to put any real time limits on the [decision
maker]’” as to when a yes or no decision must be made as to whether the distribution will be
allowed. Frandsen, 212 F.3d at 1240 (quoting Lady J. Lingerie, Inc. v. City of Jacksonville, 176
F.3d 1358, 1363 (11th Cir. 1999)). Thus, this case is not, moot.

                                                 10
therefore unconstitutional); Shanley, 462 F.2d at 978 (holding school’s literature

distribution policy was unconstitutional, in part due to lack of time period during

which request had to be reviewed). For these reasons, the Policy is facially

unconstitutional and cannot be used by the School Board. See Frandsen, 212 F.3d

at 1235 (“The remedy if the facial challenge is successful is the striking down of the

regulation.”).

                          C. The As-Applied Challenge

      As discussed above, only Heinkel can properly maintain an as-applied

challenge to the Policy. After a thorough review of the record and briefs, we

conclude that the district court did not err in granting summary judgment for the

School Board on Heinkel’s claim arising out of Browder’s denial of her request.

      While Browder’s letter denying Heinkel’s request referred to the Policy, it

specifically stated that Browder had reviewed the materials Heinkel wished to

distribute and was denying her request, not on the basis of the Policy alone, but

because Browder had determined “that the documents would tend to create a

substantial disruption in the school environment.” (R.1-26, Ex. I.) This standard,

originally stated in Tinker, 393 U.S. at 513, 89 S. Ct. at 740, is the appropriate




                                         11
measure for restraint of student expression.7 In Tinker, the Supreme Court held that

schools must tolerate student expression unless it would “‘materially and substantially

interfer[e] with the requirements of appropriate discipline in the operation of the

school’” or “collid[e] with the rights of others.” Id. (citation omitted). Although an

“undifferentiated fear or apprehension of disturbance” is not sufficient to meet this

test, schools need not wait until disruption actually occurs in order to prohibit student

expression if they reasonably forecast that the expression will cause substantial

disruption or material interference with school activities. See Tinker, 393 U.S. at 508,

89 S. Ct. at 737; Shanley, 462 F.2d at 970.

       Applying the Tinker standard, the district court held the School Board acted

constitutionally in denying Heinkel’s request to distribute pro-life literature to her

classmates. Finding that Browder reasonably concluded that distribution of such

materials would cause a material and substantial disruption to the discipline in

Heinkel’s school, the district court found particularly persuasive the fact that Heinkel

was a middle school student who wished to distribute materials about abortion and


       7
          Since Tinker, the Supreme Court has refined the framework for analyzing First
Amendment claims in the public school context. As we have explained, “[w]ithin scholastic
nonpublic fora, there are four clear categories of expression: vulgar expression, pure student
expression, government expression, and school-sponsored expression.” Bannon v. Sch. Dist. of
Palm Beach County, 387 F.3d 1208, 1213 (11th Cir. 2004). Tinker involved pure student
expression. As this case also involves only pure student expression, we need not address the
tests for the other forms of expression.

                                              12
abortion alternatives to her classmates who ranged in age from 11 to 14. See Walker-

Serrano ex rel. Walker v. Leonard, 325 F.3d 412, 416 (3d Cir. 2003) (“[A]ny analysis

of the students’ rights to expression on the one hand, and of schools’ need to control

behavior and foster an environment conducive to learning on the other, must

necessarily take into account the age and maturity of the student.”). The record also

shows that birth control and abortion are not part of the middle school curriculum.

(Tutko Dep. at 21-22, 33-34.) The School District’s lead health education teacher

explained in her deposition, “we don’t discuss abortion in the school setting” because

it is “a very emotional issue” that “creates some anger,” “polarizes a class,” and

“becomes disruptive to the educational setting.” (Tutko Dep. at 27-28.) These are

valid considerations. See Shanley, 462 F.2d at 973-74 (“If the content of a student’s

expression could give rise to a disturbance from those who hold opposing views, then

it is certainly within the power of the school administration to regulate the time,

place, and manner of distribution with even greater latitude of discretion.”)

      We do not find clear error in the district court’s finding that the record thus

reflects “facts which might reasonably have led school authorities to forecast

substantial disruption of or material interference with school activities.” Tinker, 393

U.S. at 514, 89 S. Ct. at 740. As we have stated in the past, “the balancing of

expression and discipline is an exercise in judgment for school administrations and

                                          13
school boards, subject only to the constitutional requirement of reasonableness under

the circumstances.” Shanley, 462 F.2d at 975. Accordingly, the district court’s

judgment is affirmed to the extent that it grants the School Board summary judgment

on Heinkel’s claim based upon the denial of her request to distribute literature.

                                IV. CONCLUSION

      For the foregoing reasons, the judgment of the district court is: (a) reversed to

the extent that it grants summary judgment to the School Board on Heinkel’s facial

challenge and denies injunctive relief, and (b) affirmed to the extent it grants

summary judgment to the School Board on Heinkel’s as-applied challenge. The case

is remanded to the district court for further proceedings consistent with this opinion.

      AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH

INSTRUCTIONS.




                                          14
