Opinion
3:03-CV-2651-M.
July 23, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint, filed on December 22, 2003. After considering the briefing of the parties and the argument of counsel at the February 22, 2004 hearing, the Court grants Defendants' Motion to Dismiss.
I. BACKGROUND
The State Board of Education (the "SBOE") is comprised of fifteen members, who are elected for terms of two years. TEX. EDUC. CODE. ANN. § 7.101 (Vernon 1996). Among other enumerated duties, the Board is charged with the duty to "adopt and purchase or license textbooks as provided by Chapter 31." TEX. EDUC. CODE. ANN. § 7.102(c)(23) (Vernon 1996 Supp. 2004). By majority vote, the SBOE may adopt a textbook and place it on the conforming list or the nonconforming list. Or, by majority vote, the SBOE may reject the textbook for one of four reasons: (1) failure to meet essential knowledge and skills specified in the proclamation; (2) failure to meet established manufacturing standards and specifications recognized by the SBOE; (3) failure to correct errors of fact; or (4) content that clearly conflicts with the stated purpose of the Texas Education Code, § 28.002(h). TEX. EDUC. CODE ANN. § 31.024(a)(2) (Vernon 1996); 19 TEX. ADMIN. CODE § 66.66 (1997). Section 28.002(h) provides:
While textbooks on both lists must be free from factual errors and meet the SBOE's applicable physical specifications, nonconforming textbooks only need to cover half of the elements of essential knowledge and skills of the subject and grade level, while conforming textbooks need to cover all of those elements. TEX. EDUC. CODE ANN. § 31.024(a)(1) (Vernon 1996).
The State Board of Education and each school district shall foster the continuation of the tradition of teaching United States and Texas history and the free enterprise system in regular subject matter and in reading courses and in the adoption of textbooks. A primary purpose of the public school curriculum is to prepare thoughtful, active citizens who understand the importance of patriotism and can function productively in a free enterprise society with appreciation for the basic democratic values of our state and national heritage.
TEX. EDUC. CODE ANN. § 28.002(h) (Vernon 1996 Supp. 2004).
For each subject in the foundation curriculum, the board of trustees of each school district selects a textbook to be used from the appropriate conforming or nonconforming list, and the state subsidizes the purchase of the chosen textbook. TEX. EDUC. CODE ANN. § 31.101 (Vernon 1996). If a textbook is not on a conforming or nonconforming list, the school district may use local funds to purchase the textbook. TEX. EDUC. CODE ANN. § 31.106 (Vernon 1996). Further, a school district may apply to the commissioner for a waiver to use state funds to purchase a textbook that is not included on a conforming or nonconforming list. TEX. EDUC. CODE ANN. § 7.056 (Vernon 1996).
This case arises from the SBOE's decision to reject the textbook Environmental Science: Creating A Sustainable Future (6th ed.), published by Jones Bartlett and written by Daniel Chiras. As characterized by the First Amended Complaint, "[t]his lawsuit seeks to vindicate the First Amendment rights of an author of an environmental science textbook, as well as the public high school students who have been denied access to that textbook as a result of illegal viewpoint discrimination by members of the Texas State Board of Education." (First Am. Compl. p. 1).
In May of 1999, the SBOE solicited bids from publishers for textbooks to be used in regular and Advanced Placement environmental science courses in Texas high schools. In response, Jones Bartlett submitted Chiras's textbook for consideration. During the consideration process, the Commissioner of Education recommended that Chiras's textbook be adopted as a nonconforming textbook. However, after hearing public comment on the proposed textbook, the SBOE voted 10-5 to reject Chiras's textbook. According to the First Amended Complaint, the SBOE members who voted to reject Chiras's textbook did so in order to suppress Chiras's point of view. In particular, the SBOE members who voted to reject Chiras's textbook allegedly did so because they disagreed with Chiras's conclusion that the root cause of environmental problems is economic growth, because the oil and gas industry's position was not adequately presented, and because the textbook did not accurately reflect what they perceived to be the traditional, conservative values of most Texans.
Plaintiffs in this suit are Chiras, Lillian Pollack, and Connie McLouth, as next friend of Julia McLouth. Lillian Pollack and Julia McLouth are alleged to be students enrolled in the Advanced Placement Environmental Science course at the Dallas Independent School District's Talented and Gifted Magnet High School in Dallas, Texas. In addition to bringing this action on behalf of themselves, Pollack and McLouth filed this suit on behalf of a putative class consisting of all current and future Texas public high school students who are enrolled in or will enroll in environmental science classes. Defendants in this suit are members of the SBOE who, according to the First Amended Complaint, voted to reject Chiras's textbook: Geraldine Miller, David Bradley, Don McLeroy, Dan Montgomery, Cynthia Thornton, and Grace Shore. Miller is sued solely in her official capacity as the chair of the SBOE, and Montgomery is sued solely in his official capacity as a member of the SBOE. Bradley, McLeroy, and Thornton are sued both in their official capacities as members of the SBOE and in their individual capacities. Shore is sued solely in her individual capacity.
Plaintiffs' counsel has notified the Court that Lillian Pollack and Julia McLouth have graduated from high school. Therefore, the Court dismisses these students' claims as moot. Plaintiffs' counsel has additionally notified the Court that, if the Court denies Defendants' Motion to Dismiss, Plaintiffs' counsel intends to substitute as plaintiffs students who have enrolled in the AP Environmental Science course for the upcoming school year. The Court is granting Defendants' Motion to Dismiss, and the Court's analysis is unaffected by whether Chiras is the sole plaintiff or whether high school students are additionally named as plaintiffs. If Plaintiffs' counsel wishes to substitute new students as plaintiffs in order to preserve the students' claims for purposes of appeal, Plaintiffs' counsel shall, within 30 days from the date of this Order, file a Motion to Substitute New Plaintiffs. The Court will allow such a substitution and will apply Defendants' December 22, 2003 Motion to Dismiss to those students' claims, dismissing the students' claims for the reasons stated in this Opinion. At that time, the Court will enter a final judgment in this case. If Plaintiffs' counsel does not wish to accomplish this substitution, Plaintiffs' counsel shall promptly notify the Court and the Court will enter a final judgment in this case.
The Court has not certified this as a class action.
Pursuant to 42 U.S.C. § 1983, Plaintiffs seek a declaration that the rejection of Chiras's book on the basis of the viewpoints expressed therein violated the First and Fourteenth Amendments, and further seek an injunction requiring Miller, Bradley, McLeroy, Montgomery, and Thornton, in their official capacities, to add Chiras's textbook to the nonconforming list of environmental science textbooks approved for use by Texas public high schools. In addition, Plaintiff Chiras asserts a claim, pursuant to 42 U.S.C. § 1983, against Defendants Bradley, McLeroy, Shore, and Thornton in their individual capacities for damages resulting from Defendants' ongoing violations of the First and Fourteenth Amendments.
Defendants move to dismiss Plaintiffs' First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) for the following reasons. First, Defendants claim that even if Defendants engaged in viewpoint discrimination in their decision to reject Chiras's textbook, Defendants acted within the discretion afforded them by the Constitution. Second, Defendants urge that because Defendants' rejection of Chiras's textbook was merely a funding decision, Defendants did not abridge Plaintiffs' freedom of speech.
Defendants additionally move to dismiss Plaintiffs' claim for damages against Defendants in their official capacities under Federal Rule of Civil Procedure 12(b)(1). Because Plaintiffs do not assert a claim for damages against Defendants in their official capacities, Defendants' motion to dismiss on this basis is denied as moot.
II. ANALYSIS
Defendants contend that, even if they engaged in viewpoint discrimination in their decision to reject Chiras's textbook, they acted within the discretion afforded them by the First Amendment to the United States Constitution. In order to analyze this contention, the Court will first examine how the appropriate analytical framework is affected by the determination of whether the use of a textbook constitutes pure government speech or speech that merely bears the imprimatur of the government. Then, the Court will determine whether the use of a textbook constitutes pure government speech or speech that merely bears the imprimatur of the government. Based on that determination, the Court will then examine whether the viewpoint-based discrimination alleged in this case is within the discretion afforded by the First Amendment.A. How is the appropriate analytical framework affected by the determination of whether the use of a textbook constitutes pure government speech or speech that merely bears the imprimatur of the government?
When the government itself is speaking, the government may determine the content of its speech. See Rosenberger v. Rector Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995) ("[W]e have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message."); Fleming v. Jefferson County Sch. Dist., 298 F.3d 918, 923 (10th Cir. 2002) ("When the government speaks, it may choose what to say and what not to say."); Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1013 (9th Cir. 2000) ("Simply because the government opens its mouth to speak does not give every outside individual or group a First Amendment right to play ventriloquist."). Therefore, if the use of a textbook is the government's own speech, then Plaintiffs do not have a First Amendment right to compel the government to adopt Chiras's textbook.
In contrast, if the speech merely bears the imprimatur of the government but does not constitute pure government speech, the Court must analyze the quashing of that speech under the standard enunciated by the Supreme Court in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). In Hazelwood, the Supreme Court examined "the extent to which educators may exercise editorial control over the contents of a high school newspaper produced as part of the school's journalism curriculum." Id. at 262. A high school principal had removed from a school newspaper two pages which contained an article describing three students' experiences with pregnancy, and another article discussing the impact of divorce on students. Id. at 263. Three student staff members of the newspaper brought suit, alleging that school officials violated their First Amendment rights by eliminating the two articles. Id. at 262.
The Supreme Court first analyzed whether the school newspaper should be characterized as a forum for public expression, noting that "public schools do not possess all of the attributes of streets, parks, and other traditional public forums that `time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.'" Id. at 267 (quoting Hague v. CIO, 307 U.S. 496, 515 (1939)). Therefore, the Court concluded, "school facilities may be deemed to be public forums only if school authorities have `by policy or by practice' opened those facilities `for indiscriminate use by the general public.'" Id. (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 47 (1983)). Because school officials had maintained the newspaper as a supervised learning experience for journalism students, the Supreme Court found that the newspaper was a nonpublic forum. Id. at 270.
Next, the Supreme Court recognized the distinction between "educators' ability to silence a student's personal expression that happens to occur on the school premises" and "educators' authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school." Id. at 271. The Supreme Court characterized these school-sponsored publications as "part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences" and recognized that educators' authority over school curriculum enables them "to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school." Id. Therefore, the Supreme Court enunciated the following test: "[W]e hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." Id. at 273.
As in Hazelwood, this case involves a forum analysis in the public school setting. Therefore, the adoption of textbooks for use in classrooms may be deemed a public forum only if that forum has "`by policy or by practice' been opened `for indiscriminate use by the general public.'" Id. at 267 (quoting Perry, 460 U.S. at 47). Clearly, the SBOE's active role in adopting or rejecting textbooks shows that this forum has not been opened for indiscriminate use by the general public. Therefore, as in Hazelwood, the Court is faced with a nonpublic forum.
Further, as in Hazelwood, the issue relates to the extent of educators' control over school curriculum. The use of a textbook in a classroom is quintessentially part of the school curriculum. Id. at 271. Therefore, as in Hazelwood, if the use of a textbook is not characterized as pure government speech, it at least bears the imprimatur of the government.
Finally, unlike Hazelwood, which involved student speech that bore the imprimatur of the school, this case involves the speech of Chiras, a non-student. However, in this Court's view, this distinction from Hazelwood does not render the Hazelwood analysis inapplicable here. As recognized by the Ninth Circuit, "[a]lthough the facts of Hazelwood dealt with student expression, its rationale was not so limited." Planned Parenthood of S. Nev., Inc. v. Clark County Sch. Dist., 941 F.2d 817, 827 (9th Cir. 1991) (applying the Hazelwood analysis to determine whether a school district could bar Planned Parenthood from advertising in school publications); see also Fleming v. Jefferson County Sch. Dist., 298 F.3d 918, 925-26 (10th Cir. 2002) (applying the Hazelwood analysis to determine whether a school district could restrict the subject matter of decorative tiles painted by non-student members of the community for use at a public school); Ward v. Hickey, 996 F.2d 448, 453 (1st Cir. 1993) (applying Hazelwood to analyze whether a school could restrict a teacher's statements in class); Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794, 800-01 (5th Cir. 1989) (applying Hazelwood to analyze whether a school could demand that teachers adhere to official reading lists unless separate materials are approved); Searcey v. Harris, 888 F.2d 1314, 1319 (11th Cir. 1989) (applying Hazelwood to analyze whether a school board could deny a peace organization the right to present information during a high school career day); Virgil v. Sch. Bd. of Columbia County, 862 F.2d 1517, 1521 (11th Cir. 1989) (applying Hazelwood to analyze whether a school board could discontinue the use of a humanities textbook because of objections to vulgarity and sexual explicitness).
Therefore, if the adoption of a textbook for use in classrooms is not pure government speech, the Court should apply Hazelwood and analyze whether the rejection of Chiras's textbook was "reasonably related to legitimate pedagogical concerns." Thus, the initial inquiry in this case is whether the use of a textbook in a public high school classroom constitutes pure government speech, to which no First Amendment rights inure, or speech that merely bears the imprimatur of the government and that can be restricted only if the restriction is "reasonably related to legitimate pedagogical concerns."
B. Is the classroom use of a textbook pure government speech or speech that merely bears the imprimatur of the government?
For guidance, the Court will examine the cases that analyze whether speech in the school setting is pure government speech. As recognized by the Tenth Circuit, the quintessential example of pure government speech in the school setting is a principal speaking at a school assembly. Fleming, 298 F.3d at 923. The Third and Ninth Circuits have both found other types of speech in a school setting to be pure government speech.
In Edwards v. California University of Pennsylvania, the Third Circuit held that a university's choice of curriculum, like a principal's speech at a school assembly, is government speech. Edwards v. Cal. Univ. of Pa., 156 F.3d 488, 491 (3d Cir. 1998). The Third Circuit found that, since the university's actions restricting a professor's use of certain materials concerned the content of the education provided by the university, the university was acting as speaker. Id. at 492. Therefore, based on the "Supreme Court's jurisprudence concerning the state's ability to say what it wishes when it is the speaker," the Third Circuit held that the university was entitled to make content-based choices in restricting a professor's syllabus and that a professor does not have a First Amendment right to use restricted materials in the classroom. Id. at 491-92.
In Downs v. Los Angeles Unified School District, the Ninth Circuit found that the speech on bulletin boards inside a school building constituted "an example of the government opening up its own mouth." Downs v. Los Angeles Unified Sch. Dist., 228 F.3d 1003, 1012 (9th Cir. 2000). During Gay and Lesbian Awareness Month at a Los Angeles public high school, the school designated a bulletin board inside the school building on which faculty and staff (and no one else) could post materials related to the Awareness Month. Id. at 1006. A teacher who objected to the recognition of Gay and Lesbian Awareness Month created his own bulletin board titled "Testing Tolerance" on which he posted materials challenging the morality of homosexuality and the legality of homosexual acts. Id. at 1006-07. The school principals ordered the removal of the materials. Id. at 1008. The Ninth Circuit found that the school principals' implicit acceptance of some materials posted by the school faculty and staff and explicit rejection of the "Testing Tolerance" materials rendered any speech on the bulletin boards "directly traceable" to the school, the school district, and the school board. Id. at 1012. The acceptance of some posted materials was equivalent to speech by the school, school district, and school board, and the removal of some posted materials was equivalent to "either choosing not to speak or speaking through the very act of removal." Id. Therefore, the Ninth Circuit concluded: "Were we to invoke the Constitution to protect [the teacher's] ability to make his voice a part of the voice of the government entity he served, [the teacher] would be able to do to the government what the government could not do to [the teacher]: compel it to embrace a viewpoint." Id. at 1015.
There were two different school principals during the period of time at issue.
In apparent contrast to the Third Circuit's holding in Edwards, the First, Tenth, and Eleventh Circuits have treated the content of in-class instruction as speech that merely bears the imprimatur of the government rather than as pure government speech. In Ward v. Hickey, relying on Hazelwood, the First Circuit held that a school committee may regulate a teacher's classroom speech if the regulation is reasonably related to a legitimate pedagogical concern. Ward v. Hickey, 996 F.2d 448, 452 (1st Cir. 1993). The First Circuit did not explicitly address whether a teacher's classroom speech is pure government speech, but implicitly rejected this position by applying Hazelwood. Similarly, in Virgil v. School Board of Columbia County, without explicitly addressing whether the use of a textbook in a high school class is pure government speech, the Eleventh Circuit rejected that position by applying Hazelwood to examine whether the First Amendment prevents a school board from removing a previously approved textbook from an elective high school class because of objections to the material's vulgarity and sexual explicitness. Virgil v. Sch. Bd. of Columbia County, 862 F.2d 1517, 1521 (11th Cir. 1989). Finally, in Vanderhurst v. Colorado Mountain College District, the Tenth Circuit applied Hazelwood to analyze whether a teacher's classroom speech was constitutionally protected. Vanderhurst v. Colo. Mountain Coll. Dist., 208 F.3d 908, 914 (10th Cir. 2000). In so doing, the Tenth Circuit explicitly recognized that this ruling was in conflict with the analysis in Edwards. Id.
Therefore, in light of the apparent conflict between the Third Circuit's application of the government speech doctrine in the school setting and the First, Tenth, and Eleventh Circuits' application in the same context, the Court must determine which approach to follow. The Tenth Circuit, after analyzing the Ninth Circuit's decision in Downs and Eighth Circuit caselaw applying the government speech doctrine outside the school setting, articulated a four-factor test to discern whether expression is government speech: (1) whether the "central purpose" of the project is to promote the views of the government or of the private speaker; (2) whether the government exercised "editorial control" over the content of the speech; (3) whether the government was the "literal speaker"; and (4) whether "ultimate responsibility" for the project rested with the government. Fleming v. Jefferson County Sch. Dist., 298 F.3d 918, 923 (10th Cir. 2002); Wells v. City County of Denver, 257 F.3d 1132, 1141 (10th Cir. 2001). The Court finds these factors helpful to its analysis and will thus apply them here.
First, the Court will analyze the central purpose of the SBOE's textbook approval process. The purpose of a textbook used in a classroom, like a teacher's classroom speech, is to provide a "quality education" and a "general diffusion of knowledge." See TEX.EDUC. CODE ANN. § 4.001(a) ("The mission of the public education system of this state is to ensure that all Texas children have access to a quality education that enables them to achieve their potential and fully participate now and in the future in the social, economic, and educational opportunities of our state and our nation. That mission is grounded on the conviction that a general diffusion of knowledge is essential for the welfare of this state and for the preservation of the liberties and rights of citizens."). The central purpose of the inclusion of points of view in textbooks is not to promote the views of the school or the government, but to expose students to the points of view taken by various experts in a given field of study. In contrast, the central purpose of a principal's speech at a school assembly is to promote the views of the school, and the central purpose of the bulletin boards in Downs was to promote the school's, school district's, and school board's message of tolerance. Downs, 228 F.3d at 1012 ("The bulletin boards served as an expressive vehicle for the school board's policy of `Educating for Diversity.' . . . [T]he bulletin boards were a manifestation of the school board's policy to promote tolerance."). This factor weighs against finding the use of a textbook in a classroom to be pure government speech.
Second, the Court will analyze the extent of editorial control exercised by the government over the content of the speech. The Court interprets this factor as analyzing the extent of control exercised over the internal content of adopted textbooks, not the extent of control over the actual decision to adopt a textbook. As alleged in the First Amended Complaint, the SBOE exercises some editorial control over the textbooks it adopts:
By contrast with the final vote on Chiras' book, the SBOE voted to approve the LeBel textbook that it had preliminarily rejected one day earlier. The decision regarding the LeBel book changed because, into the late night hours of November 8, 2001, the publisher's president worked with the Texas Education Agency to correct "problems" that were identified at the November 8 hearing. The New York Times later reported that president Rene LeBel described this so-called "correction" process as a "book-burning," that was 100 percent political.
(First Am. Compl. ¶ 32) (emphasis in original).
Further, the Texas Administrative Code recognizes that the SBOE may condition adoption of a textbook on the making of certain corrections. TEX.ADMIN. CODE § 66.66(d) (1997) ("The SBOE may allow a publisher to withdraw from the adoption process after the date specified in the proclamation due to . . . failure to agree to make corrections required by the SBOE."). This editorial control is not as great as that exercised by a school principal who, in delivering an assembly speech, determines precisely what to say and what not to say. However, the SBOE's editorial control to implicitly accept or explicitly reject various portions of a textbook is comparable to the school principals' editorial control in Downs, where each posting on the bulletin boards was either implicitly accepted or explicitly rejected by the school principals. Downs, 228 F.3d at 1012. Therefore, although the extent of the SBOE's editorial control over the content of adopted textbooks is not as expansive as a school principal's editorial control over his own speech at an assembly, the Court finds that this factor weighs in favor of finding the use of a textbook in a classroom to be pure government speech.
Third, unlike a school principal at a school assembly or a school's decision to allow certain materials to be posted on its bulletin boards, when a textbook is used in a classroom, the textbook's author, and perhaps its editor, are the literal speakers, not the government. Therefore this factor weighs against finding the use of a textbook to be pure government speech.
Fourth, the ultimate responsibility for the use of a textbook in a classroom rests with the government — at the state adoption level and the local selection level. Both the SBOE and the local school district are charged with the responsibility of choosing appropriate textbooks to be used in the classroom. Therefore, this factor weighs in favor of finding the use of a textbook to be pure government speech.
Although this is a close question, weighing these factors, the Court finds that, although the use of a textbook in a classroom bears the imprimatur of the government, its use does not constitute pure government speech. Therefore, the Court follows the guidance of the First, Tenth, and Eleventh Circuits, rather than the Third Circuit, in applying the government speech doctrine in the school setting. Since the use of a textbook is speech that merely bears the imprimatur of the government rather than pure government speech, the Court will examine whether Hazelwood prohibits the viewpoint-based discrimination alleged in this case.
The Court's decision to apply Hazelwood is consistent with the Fifth Circuit's approach in Kirkland v. Northside Independent School District, in which the Fifth Circuit looked to Hazelwood when analyzing a public high school's right to demand that its teachers adhere to official reading lists unless separate materials are approved. Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794, 800-01 (5th Cir. 1989). In that case, without seeking approval for certain unapproved books, a teacher included unapproved books on a world history class reading list. When his employment contract was not renewed, the teacher argued that the school dismissed him in order to censor the contents of his reading list. Using the Hazelwood framework, the Fifth Circuit held: "Public schools have a legitimate pedagogical interest in shaping their own secondary school curricula and in demanding that their teachers adhere to official reading lists unless separate materials are approved." Id. at 795. Therefore, the court held: "[W]hen an administrative process is established to compile and amend officially approved material with input from parents, administrators, and educators, teachers must respect that process." Id. at 802. In Kirkland, the issue before the court was whether the school's adherence to the administrative process violated the teacher's First Amendment rights, not whether the rejection of a particular textbook violated the author's and student's First Amendment rights. The court did not address whether the inclusion of a particular book on a reading list constitutes pure government speech or speech that merely bears the imprimatur of the school. However, by recognizing that, in addition to teachers, "[p]arents, administrators, and elected officials also have a legitimate role in the process of selecting material that will advance educational goals," the Fifth Circuit implicitly found that the use of a textbook in a classroom is not pure government speech. Id.
Finally, this holding is consistent with what the Supreme Court articulated, albeit in dicta, in Arkansas v. Forbes, 523 U.S. 666 (1998). In Forbes, a state-owned public television broadcaster sponsored a candidate debate, from which it excluded an independent candidate with little popular support. The Supreme Court addressed whether the station had a constitutional obligation to allow every candidate to participate in the debate. The Court first stated a general rule for public television programs: "[I]n most cases, the First Amendment of its own force does not compel public broadcasters to allow third parties access to their programming." Id. at 675. Then, the Court recognized the special characteristics of candidate debates and held that, "unlike most other public television programs, the candidate debate was subject to constitutional constraints applicable to nonpublic fora under our forum precedents." Id. at 669. In the course of articulating the general rule that applies to public television programs, the Supreme Court stated:
Much like a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, or a public school prescribing its curriculum, a broadcaster by its nature will facilitate the expression of some viewpoints instead of others. Were the judiciary to require, and so to define and approve, pre-established criteria for access, it would risk implicating the courts in judgments that should be left to the exercise of journalistic discretion.
When a public broadcaster exercises editorial discretion in the selection and presentation of its programming, it engages in speech activity. Although programming decisions often involve the compilation of the speech of third parties, the decisions nonetheless constitute communicative acts.Id. at 674 (internal citations omitted).
Although this passage could be interpreted as suggesting that a public school's prescribing of its curriculum is pure government speech, the Court finds that this passage merely recognizes that pure government speech and speech that bears the imprimatur of the government are both treated differently from private speech.
This interpretation of Forbes is supported by the Supreme Court's decision in Rosenberger v. Rector Visitors of the University of Virginia, 515 U.S. 819 (1995). There, the Supreme Court distinguished between cases in which the state is the speaker and cases in which the state expends funds to encourage a diversity of views expressed by private speakers. Id. at 833. The Supreme Court recognized this analytical distinction: "A holding that the University may not discriminate based on the viewpoint of private persons whose speech it facilitates does not restrict the University's own speech, which is controlled by different principles." Id. at 844. As an example of speech that is "controlled by different principles," the Court cited Hazelwood. Id. This citation to Hazelwood as an example of government speech that is "controlled by different principles" shows that the Supreme Court carves out both pure government speech and speech that bears the imprimatur of the government from the usual rules governing purely private speech. Therefore, the Supreme Court's reference in Forbes to both a public broadcaster's programming decision and a public school's curriculum decision as "communicative acts" is consistent with this Court's holding that a curriculum decision is not pure government speech but rather bears the imprimatur of the government.
C. Is viewpoint-based discrimination within the discretion afforded by Hazelwood ?
Since the use of a textbook is curricular speech that bears the imprimatur of the government, the Court must determine under the guidance of Hazelwood whether viewpoint-based discrimination is within the discretion afforded by the Constitution. The circuits are split on whether Hazelwood affords discretion to educators to engage in viewpoint-based discrimination, as long as the discrimination is reasonably related to legitimate pedagogical concerns, or whether under Hazelwood educators' suppression of curricular speech must be viewpoint-neutral. The Fifth Circuit has not yet addressed this issue.
Generally, in nonpublic fora, the government may not engage in viewpoint-based discrimination. Rather, "[t]o be consistent with the First Amendment, the exclusion of a speaker from a nonpublic forum must not be based on the speaker's viewpoint and must otherwise be reasonable in light of the purpose of the property." Forbes, 523 U.S. at 682. In Hazelwood, the Supreme Court found that the public high school's newspaper was a nonpublic forum and stated the appropriate test to apply: "[W]e hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." Hazelwood, 484 U.S. at 273. This test contains the same basic requirement as the general nonpublic forum test: reasonableness in light of the forum's purpose. However, it is not clear whether Hazelwood also requires that the discrimination be viewpoint-neutral. In Hazelwood, the deleted articles discussed students' experiences with pregnancy and the impact on them of divorce. Id. at 263. The principal deleted the pregnancy article because he was concerned that the pregnant students might be identifiable from the text and because he believed the references to sexual activity and birth control were inappropriate for younger students. Id. He deleted the divorce article because he was concerned that a quoted student's father should have been afforded the opportunity to respond to negative comments about his conduct. Id. Since the articles were suppressed because of their subject matter and not the viewpoints expressed therein, the Supreme Court did not address whether, in addition to being reasonably related to legitimate pedagogical concerns, educators' control over curricular speech must be viewpoint-neutral in order to withstand constitutional scrutiny.
According to the Ninth and Eleventh Circuits, the Hazelwood test is merely an application of the ordinary test for nonpublic fora to curricular speech, and educators' suppression of speech must be viewpoint-neutral. Planned Parenthood of S. Nev., Inc. v. Clark County Sch. Dist., 942 F.2d 817, 830 (9th Cir. 1991) ("Because their decision to limit access, whether wise or unwise, is reasonable and not an effort at viewpoint discrimination, the school district did not violate the [F]irst [A]mendment in declining to publish Planned Parenthood's advertisements."); Searcey v. Harris, 888 F.2d 1314, 1319 n. 7 (11th Cir. 1989) ("Although the Supreme Court did not address viewpoint neutrality in Hazelwood, there is no indication that the Court intended to drastically rewrite First Amendment law to allow a school official to discriminate based on a speaker's views."). According to the First and Tenth Circuits, the Hazelwood test is a carve-out from the ordinary test for nonpublic fora, and educators are afforded discretion to engage in viewpoint-based discrimination as long as the discrimination is reasonably related to legitimate pedagogical concerns. Fleming v. Jefferson County Sch. Dist., 298 F.3d 918, 928 (10th Cir. 2002) ("We hold . . . that Hazelwood does not require educators' restrictions on school-sponsored speech to be viewpoint neutral."); Ward v. Hickey, 996 F.2d 448, 454 (1st Cir. 1993) ("[T]he Court in Kuhlmeier did not require that school regulation of school-sponsored speech be viewpoint neutral."). Since the Fifth Circuit has not yet addressed this issue, the Court must determine which line of authority to follow. The Court will examine the inferences that can be drawn from the text of the Hazelwood opinion as well as from subsequent Supreme Court decisions.
Additionally, a panel of the Sixth Circuit, reviewing university officials' confiscation of a school yearbook, interpreted Hazelwood as requiring viewpoint neutrality: "The Court in Hazelwood noted, however, that if the school did not intentionally create a public forum, then the publication remains a nonpublic forum, and school officials may impose any reasonable, non-viewpoint-based restriction on student speech exhibited therein." Kincaid v. Gibson, 191 F.3d 719, 727 (6th Cir. 1999), vacated by 197 F.3d 828 (6th Cir. 1999). However, this panel decision was vacated for en banc review. The en banc court reversed the panel decision, finding that the yearbook was a limited public forum, that the school officials' regulation was not a reasonable time, place, or manner regulation, and that the regulation was not narrowly crafted to preserve a compelling state interest. Kincaid v. Gibson, 236 F.3d 342, 354 (6th Cir. 2001) ( en banc). The en banc court additionally noted:
Even were we to assume, as the KSU officials argue, that the yearbook was a nonpublic forum, confiscation of the yearbook would still violate Kincaid's and Coffer's free speech rights. Although the government may act to preserve a nonpublic forum for its intended purposes, its regulation of speech must nonetheless be reasonable, and it must not attempt to suppress expression based on the speaker's viewpoint.Id. at 355. This language suggests that the Sixth Circuit would require educators' suppression of curricular speech to be viewpoint-neutral.
Additionally, a panel of the Third Circuit held: " Hazelwood clearly stands for the proposition that educators may impose non-viewpoint neutral restrictions on the content of student speech in school-sponsored expressive activities so long as those restrictions are reasonably related to legitimate pedagogical concerns." C.H. v. Oliva, 195 F.3d 167, 172-73 (3d Cir. 1999), vacated by 197 F.3d 63 (3d Cir. 1999). However, this panel decision was vacated for en banc review and the en banc court did not reach this issue. C.H. v. Oliva, 226 F.3d 198 (3d Cir. 2000) ( en banc).
1. Inferences from the text of the Hazelwood opinion
The Supreme Court's reasoning in Hazelwood suggests that the Supreme Court intended that educators have the discretion to make viewpoint-based determinations. As recognized by the Tenth Circuit, "[t]he Court's specific reasons supporting greater control over school-sponsored speech, such as determining the appropriateness of the message, the sensitivity of the use, and with which messages a school chooses to associate itself, often will turn on viewpoint-based judgments." Fleming, 298 F.3d at 928. In addition, the Supreme Court in Hazelwood cited the following examples of appropriate restrictions on student speech: "A school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with `the shared values of a civilized social order,' or to associate the school with any position other than neutrality on matters of political controversy." Hazelwood, 484 U.S. at 272 (quoting Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986)). All but the last of these cited examples relates to the suppression of speech on the basis of its advocacy of certain conduct and thus exemplify viewpoint-based discrimination.
Additionally, if the Supreme Court had merely intended to apply the traditional nonpublic forum analysis to curricular cases, upon finding that the newspaper was a nonpublic forum, the Supreme Court could have immediately stated the traditional nonpublic forum test. Instead, however, the Supreme Court took pains to recognize that a school newspaper might be reasonably perceived to "bear the imprimatur of the school," to characterize the newspaper as part of the school's curriculum, and to highlight that a school's role is to awaken "the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment." Hazelwood, 484 U.S. at 271-72. Only then did the Supreme Court state the applicable test, suggesting that the Supreme Court did not intend to merely restate the traditional nonpublic forum test. See Fleming v. Jefferson County Sch. Dist., 298 F.3d 918, 928 (10th Cir. 2002) ("In light of the Court's emphasis on the `special characteristics of the school environment,' and the deference to be accorded to school administrators about pedagogical interests, it would make no sense to assume that Hazelwood did nothing more than simply repeat the traditional nonpublic forum analysis in school cases.").
2. Inferences from the text of subsequent Supreme Court decisions
The Supreme Court's analysis in Rosenberger v. Rector and Visitors of the University of Virginia suggests that speech that bears the imprimatur of the government is treated differently from ordinary speech in a nonpublic forum. Rosenberger, 515 U.S. 819. In Rosenberger, a student group challenged the University of Virginia's decision to deny the group's request for funding for its newspaper. The request was denied because, in violation of the University's funding guidelines, the newspaper promoted or manifested a particular belief in or about a deity or an ultimate reality. The Supreme Court characterized this denial as viewpoint-based discrimination and held that it was unconstitutional. To reach this conclusion, the Supreme Court distinguished between cases in which the state is the speaker and cases in which the state expends funds to encourage a diversity of views from private speakers. Id. at 833. The Supreme Court recognized the analytical distinction between these two types of speech: "A holding that the University may not discriminate based on the viewpoint of private persons whose speech it facilitates does not restrict the University's own speech, which is controlled by different principles." Id. at 844. As an example of speech that is "controlled by different principles," the Court cited Hazelwood. Id. This citation suggests that, because Hazelwood dealt with speech that bears the imprimatur of the state rather than merely speech in a nonpublic forum, the curricular speech in Hazelwood is treated differently from ordinary speech in a nonpublic forum.
Additionally, as quoted supra, the Supreme Court in Arkansas v. Forbes compared a public broadcaster's exercising of its discretion with a public school's prescribing of its curriculum. Forbes, 523 U.S. at 674. Since a public broadcaster's programming decisions are ordinarily not governed by the constitutional constraints applicable to nonpublic fora, the Supreme Court's dicta suggests that curricular decisions are similarly not governed by the identical constitutional constraints applicable to nonpublic fora.
Therefore, in light of the inferences that can be drawn from the text of the Hazelwood opinion and from subsequent Supreme Court decisions, the Court follows the First and Tenth Circuits in holding that, under Hazelwood, educators are afforded discretion to engage in viewpoint-based discrimination as long as the discrimination is reasonably related to legitimate pedagogical concerns.
D. Based on the allegations in Plaintiffs' Complaint, did Defendants act within their discretion under Hazelwood in rejecting Chiras's textbook?
The Court must determine whether, based on the allegations in Plaintiffs' Complaint, Defendants acted within their permissible discretion under Hazelwood. In particular, the Court must determine whether Defendants' rejection of Chiras's textbook was reasonably related to legitimate pedagogical concerns. The Court recognizes that, ordinarily, this determination is made at the summary judgment stage of a case, once a defendant has offered some evidence of the pedagogical concern implicated. See Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 376 (4th Cir. 1998) (Motz, J., dissenting) ("Prior to today, every court to consider the matter has required that school administrators offer some evidence — if only an affidavit — to establish the legitimacy of the pedagogical concerns purportedly related to their actions."). However, in this case, Plaintiffs have alleged reasons for Defendants' rejection of Chiras's textbook. Cf. Boring, 136 F.3d at 376 (Motz, J., dissenting) ("The Board may have `legitimate pedagogical concerns' that are `reasonably related' to its disciplinary decisions. But, of course, [Plaintiff] has alleged no such concerns and the Board has not yet stated any."). Therefore, taking all of Plaintiffs' well-pleaded allegations as true, the Court will analyze whether Defendants nonetheless acted within their discretion.
Plaintiffs allege that Defendants rejected Chiras's textbook because they disagreed with Chiras's conclusion that the root cause of environmental problems is economic growth, because the oil and gas industry's position was not adequately presented, and because the textbook did not accurately reflect the traditional, conservative values of most Texans. Because Hazelwood does not require viewpoint neutrality, these alleged motives for rejecting Chiras's textbook may constitute "legitimate pedagogical concerns" even though they are viewpoint-discriminatory.
The Court finds that, for the shaping of a high school curriculum, these alleged motives are legitimate pedagogical concerns. The alleged motives are consistent with the stated purpose of the public school curriculum, as reflected in Texas Education Code § 28.002(h):
The State Board of Education and each school district shall foster the continuation of the tradition of teaching United States and Texas history and the free enterprise system in regular subject matter and in reading courses and in the adoption of textbooks. A primary purpose of the public school curriculum is to prepare thoughtful, active citizens who understand the importance of patriotism and can function productively in a free enterprise society with appreciation for the basic democratic values of our state and national heritage.
TEX. EDUC. CODE ANN. § 28.002(h).
Further, the alleged motives are consistent with the Texas Legislature's concern that the SBOE's curriculum decisions reflect the values of most Texans. This concern is evidenced by the Legislature's provision for the election, rather than the appointment, of SBOE members. TEX. EDUC. CODE. ANN. § 7.101. The Court finds that the SBOE's rejection of Chiras's textbook was reasonably related to the achievement of these legitimate pedagogical concerns. As alleged in Plaintiffs' Complaint, the SBOE interpreted Chiras's textbook as promoting viewpoints inconsistent with those that the SBOE felt should bear the imprimatur of the government, and thus the SBOE rejected Chiras's textbook.
Finally, the Court's ruling today is consistent with the Supreme Court's "oft-expressed view that the education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges." Hazelwood, 484 U.S. at 273. Although if in the position of curriculum reviewer, this Court might not have rejected Chiras's textbook for the reasons alleged in Plaintiffs' Complaint, this is precisely the kind of judicial inquiry that the Supreme Court rejects. Therefore, the Court holds that, even taking the well-pleaded facts alleged in Plaintiffs' Complaint as true, Defendants acted within their discretion under Hazelwood in rejecting Chiras's textbook.
In light of this ruling, the Court does not reach Defendants' argument that, because Defendants' rejection of Chiras's textbook was merely a funding decision, Defendants did not abridge Plaintiffs' freedom of speech.