FILED

United States Court of Appeals

Tenth Circuit

JUN 27 2002

PATRICK FISHER

Clerk PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD F. FLEMING; DEIDRA A. FLEMING;

LISA M. MAURER; BRIAN E. ROHRBOUGH; SUSAN No. 01-1512

A. PETRONE; RICHARD P. PETRONE, (individually),

and NICOLE M. PETRONE, a minor child,

by and through her father and next friend

Richard P. Petrone,

Plaintiffs - Appellees,

v.

JEFFERSON COUNTY SCHOOL DISTRICT R-1,

a Colorado Quasi-Municipal corporation,

Defendant - Appellant,

and

JON DESTEFANO, TORI MERRITTS, DAVID R.

DIGIACOMO, DEBBY OBERBECK and VINCE CHOWDHURY,

individually and in their official capacities,

Defendants,

AMERICAN CENTER FOR LAW AND JUSTICE, CHRISTIAN

LEGAL SOCIETY, CATHOLIC LEAGUE FOR RELIGIOUS

AND CIVIL RIGHTS, ETHICS AND RELIGIOUS

LIBERTY COMMISSION, FAMILY RESEARCH COUNCIL,

FOCUS ON THE FAMILY, NATIONAL ASSOCIATION

OF EVANGELICALS, AND THE NAVIGATORS,

Amici curiae.

Appeal from the United States District Court

for the D. Colorado

(D.C. No. 99-D-1932)

W. Stuart Stuller (Alexander Halpern and Susan S. Schermerhorn of Caplan and

Earnest LLC, Boulder, Colorado, with him on the briefs) for Defendant-

Appellant.

James P. Rouse (Steven H. Aden of The Rutherford Institute, Charlottesville,

Virginia, and William Scott Johns, Louisville, Colorado, with him on the brief) of

Rouse & Associates, P.C., Greenwood Village, Colorado, for Plaintiffs-Appellees.

Stuart J. Lark and Gregory S. Baylor of Center for Law and Religious Freedom,

Christian Legal Society, Annandale, Virginia for Christian Legal Society,

Catholic League for Religious and Civil Rights, Ethics and Religious Liberty

Commission, Family Research Council, Focus on the Family, National

Association of Evangelicals, and The Navigators, amici curiae in support of

Plaintiffs-Appellees.

Gregory N. Bryl, David A. Cortman, Stuart J. Roth, and Jay Alan Sekulow of

American Center for Law and Justice, Alexandria, Virginia and Washington,

D.C., for The American Center for Law and Justice, amicus curiae in support of

Plaintiffs-Appellees.

Before EBEL, HENRY and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant, Jefferson County School District ("the District"),

appeals the district court's judgment granting declaratory and injunctive relief to

Plaintiffs-Appellees, Donald Fleming et al. The district court entered judgment

for the Plaintiffs, holding that the District's guidelines governing a tile painting

project at Columbine High School ("CHS") violated the Plaintiffs' constitutional

rights under the Free Speech Clause of the United States Constitution.(1) It issued

an injunction ordering the District to (1) provide an opportunity for some of the

Plaintiffs to paint the tiles they wished to paint but were precluded from doing so

under the guidelines and (2) post Plaintiffs' tiles that were painted but not posted

because they did not comply with the guidelines. Our jurisdiction arises under 28

U.S.C.  1291, and we reverse and remand.

I. Background

On April 20, 1999, two CHS students, Eric Harris and Dylan Klebold,

entered the school and shot numerous students and teachers. They killed twelve

students, including Daniel Rohrbough and Kelly Fleming, and one faculty member before taking their own lives. Upon deciding in the summer of 1999 to reopen the

school, the District recognized that the "prospect of reintroducing students to the

CHS building posed significant mental health challenges." "School officials

made a concerted effort to change the appearance of the building to avoid

incorporating sensory cues that could reactivate memories of the attack." School

officials also sought ways to reacquaint students with the building. The CHS

librarian, Elizabeth Keating, and art teacher, Barbara Hirokawa, proposed a

project in which students would create "abstract artwork on 4-inch-by-4-inch

tiles" that would be glazed, fired, and installed above the molding throughout the

halls of the school.(2) The press release for the project stated that the project would

serve "two purposes": "Students will have another opportunity to come into the

school and become more comfortable with the surroundings. By participating in

creating the tile art, they will also be a part of reconstruction of their school."

Ms. Keating and Ms. Hirokawa received approval for the expanded tile

project from the area administrator, Barbara Monseu, who consulted with other

administrators, including persons coordinating mental health efforts. "To assure

that the interior of the building would remain a positive learning environment and

(1) The Plaintiffs brought the case against the District and members of the

Jefferson County School Board in their official capacities and against the

president of the School Board, Jon DeStefano, individually and in his official

capacity under 42 U.S.C. 1983 and 1988 seeking declaratory and injunctive

relief and costs and attorneys fees. Plaintiffs alleged violations of (1) the Free

Speech Clause of the First Amendment; (2) their free speech rights under both the

Colorado Constitution; and (3) the Establishment Clause of the First Amendment.

Fleming v. Jefferson County Sch. Dist. No. R-1, 170 F. Supp.2d 1094, 1096-97

(D. Colo. 2001). The district court granted Plaintiffs judgment on their Free

Speech Clause claim, but granted judgment to the District on the other two

claims. The district court also granted judgment to members of the School Board

and DeStefano. The Plaintiffs have not appealed any of the judgments against

them, so only the Free Speech Clause issue is before us.

(2) This abstract art tile project had been initiated two years prior to the

summer of 1999, as part of an on going art project in the school's art classes. We

refer to the tile painting project after the shooting, subject to the restrictions at

issue, as the "tile project" throughout the opinion.

not become a memorial to the tragedy, Ms. Monseu directed that there could be no

references to the attack, to the date of the attack, April 20, 1999, or 4/20/93 [sic],

no names or initials of students, no Columbine ribbons, no religious symbols, and

nothing obscene or offensive." Tiles that did not conform to the guidelines were

not to be hung. The tiles and supplies to be used in the tile project were paid for

by private donations to the Jefferson Foundation and the Columbine Memorial

Account. These donation monies were to be used at the discretion of CHS

administrators.

During the summer of 1999, the District invited additional members of the

affected community to participate in the tile project. In addition to current and

incoming students, family members of the victims, rescue workers who responded

to the shooting, and health care professionals who treated the injured were invited

to paint tiles. The district court found that the purpose of the tile project was to

"assist in community healing by allowing the community to `retake' the school by

participating in its restoration." Rescue workers and other community members

who responded to the shooting painted tiles at a session in August, and the district

court found that "hundreds" of people participated in this session. CHS graduates

from 1998-1999, as well as people attending the CHS 1989 reunion, were also

allowed to paint tiles. All of the invited participants had some relationship to the

school or the shooting.

CHS teachers supervised the tile painting sessions and informed the

participants of the guidelines, but did not give them written copies of these

guidelines. School officials set up a table at the entrance of the painting area

with examples and posters of acceptable tile designs, but did not identify specific

symbols that would be prohibited as religious expression.

The Plaintiffs expressed dissatisfaction with the guidelines, and told the

CHS instructors supervising the painting that they wished to paint the names of

their children and religious symbols on their tiles. These tiles contained messages

such as "Jesus Christ is Lord," "4/20/99 Jesus Wept," "There is no peace says the

Lord for the wicked," names of victims killed in the shooting, and crosses. The

teachers supervising the painting session told some of the Plaintiffs that they

could paint the tiles as they wished, but "informed them that tiles that were

inconsistent with the guidelines would be fired separately and would not be

affixed to the walls, but would be given to them for their personal use."

The tiles were to be screened for compliance with the guidelines before

they were sent to be fired and glazed, but due to the volume of tiles, some that

were inconsistent with the guidelines escaped review. In addition to screening the

tiles prior to firing them, CHS teachers instructed parent volunteers affixing the

tiles to the walls not to post tiles that did not comport with the guidelines. If the

volunteers had questions about whether a tile was appropriate, they were told to

put it to the side. Ms. Monseu inspected the building after the tiles were affixed

and noticed that some inappropriate tiles had been posted. The tiles were

reviewed again, and approximately eighty to ninety tiles that were inconsistent

with the guidelines were removed, out of a total of 2,100 tiles that had been put

on the walls. These tiles included ones with crosses, gang graffiti, an anarchy

symbol, a "Jewish star," angels, the blue Columbine ribbon, a skull dripping with

blood, the art teacher's name on the tile she painted, the date 4-20, and a mural

containing red colors that were disturbing to some people.

A meeting was held in early September with the Plaintiffs and families of

the victims, during which Ms. Monseu relaxed the restrictions that had previously

been imposed, telling them that they could paint tiles with their children's names

and initials, dates other than 4-20, and the Columbine ribbon, but that they could

not paint religious symbols, the date of the shooting, or anything obscene or

offensive. None of the Plaintiffs went to the school to repaint any tiles after this

change of policy because "they had made their expressions previously or been

denied the opportunity to paint the tiles they wanted to paint." Plaintiffs then

brought this suit under 42 U.S.C.   1983 and 1988 for an alleged violation of

their free speech rights and the Establishment Clause.(3) The district court granted

(3) With the initiation of this suit, District officials "froze" the tile project.

There are approximately a thousand tiles that have been painted, but have notbeen evaluated by the District for compliance with the guidelines or posted on the

walls.

judgment for the Plaintiffs on their free speech claim under the United States

Constitution, and the District brought this appeal.

II. Discussion

A. Standard of Review

In cases involving activity that may be protected under the Free Speech

Clause, "an appellate court has an obligation to make an independent examination

of the whole record in order to make sure that the judgment does not constitute a

forbidden intrusion on the field of free expression." Lytle v. City of Haysville,

138 F.3d 857, 862 (10th Cir. 1998) (internal quotation marks omitted). The

district court's findings of constitutional fact are reviewed de novo, as are its

ultimate conclusions of constitutional law. Revo v. Disciplinary Bd. of the Sup.

Ct. for the State of N.M., 106 F.3d 929, 932 (10th Cir. 1997). Other factual

findings, however, are reviewed for clear error. Brown v. Palmer, 915 F.2d 1435,

1441 (10th Cir. 1990), aff'd on reh'g, 944 F.2d 732 (10th Cir. 1991) (en banc).

We reject Appellees' assertion that our standard of review on issues of First

Amendment protected speech depends on which party prevailed below. They

assert that because the purpose of an independent examination "is to restrain

government power from unlawful restrictions on free speech," such an

independent review is not necessary in this case because "[t]he trial judge

protected the free speech rights of the [Plaintiffs]." This argument

misunderstands the reasoning of an independent review. It is the issue, the

constitutional freedom of speech, that triggers an independent examination of the

record, not the outcome below. "[A]s with other fact-intensive, mixed questions

of constitutional law, . . . `[i]ndependent review is . . . necessary . . . to maintain

control of, and to clarify, the legal principles' governing the factual

circumstances necessary to satisfy the protections of the Bill of Rights." Lilly v.

Virginia, 527 U.S. 116, 136 (1999) (quoting Ornelas v. United States, 517 U.S.

690, 697 (1996)). Further, this court previously has conducted an independent

review of the record in First Amendment cases where the government appeals the

district court decision below. See Revo, 106 F.3d at 932; Melton v. City of Okla.

City, 928 F.2d 920, 927 (10th Cir. 1991) (en banc); Brown, 915 F.2d at 1441.

B. Analysis

The district court held that the tiles at issue constituted neither government

speech, nor "school-sponsored" speech, but were private speech in a limited

public forum. It found that the District's guidelines prohibiting the date of the

shooting was not reasonable in light of the tile project's purpose, and that the

prohibition on religious symbols was not viewpoint neutral. We disagree with the

district court that the tile project is not "school-sponsored" speech as defined by

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

1. Speech in School Setting

We begin by recognizing that there are three main categories of speech that

occur within the school setting. Student speech that "happens to occur on the

school premises" is governed by Tinker v. Des Moines Independent Community

School District, 393 U.S. 503 (1969).(4) Hazelwood, 484 U.S. at 271. The black

armbands worn by the students in Tinker are representative of the pure student

expression that a school must tolerate unless it can reasonably forecast that the

expression will lead to "substantial disruption of or material interference with

school activities." Tinker, 393 U.S. at 514.

At the opposite end of the spectrum is government speech, such as the

principal speaking at a school assembly. When the government speaks, it may

choose what to say and what not to say. Wells v. City & County of Denver, 257 F.3d 1132, 1144 (10th Cir. 2001) ("`[T]he First Amendment does not preclude the

government from exercising editorial control over its own medium of

expression."' (quoting Muir v. Ala. Educ. Television Comm'n, 688 F.2d 1033,

1044 (5th Cir. 1982) (en banc)), cert. denied, Wells v. City & County of Denver,

122 S.Ct. 469 (2001). To discern whether expression is government speech, we

apply the four factor analysis articulated in Wells: (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.

Id. at 1141.

Between pure student speech and government speech is "school-sponsored"

speech, which is governed by Hazelwood. School-sponsored speech is student

speech that a school "affirmatively . . . promote[s]," as opposed to speech that it

"tolerate[s]." Hazelwood, 484 U.S. at 270-71. "[E]xpressive activities that

students, parents, and members of the public might reasonably perceive to bear

the imprimatur of the school" constitute school-sponsored speech, over which the

school may exercise editorial control, "so long as [its] actions are reasonably

(4) "Vulgar," "lewd," and "plainly offensive" student speech is governed by

Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), as opposed to

Tinker. Hazelwood, 484 U.S. at 271 n.4. The tiles in this case do not fall into this

category. Because the critical issue in this case is whether the speech is student

speech, school-sponsored speech, or government speech, we have focused our

analysis on these three categories of speech in the school setting.

related to legitimate pedagogical concerns." Id. at 271, 273. We believe that the tile project at CHS constitutes school-sponsored speech and is therefore governed

by Hazelwood.

2. Hazelwood

At issue in Hazelwood was a high school principal's excision of two pages

of a student newspaper containing articles on teen pregnancy and the impact of

divorce on students at the school. The newspaper, Spectrum, was produced by the

school's journalism class, funded with Board of Education funds, and supervised

by a faculty sponsor. The faculty advisor "was the final authority with respect to

almost every aspect of the production and publication" of Spectrum, including its

content, and every issue was reviewed by the principal prior to publication. Id. at

268-69 (internal quotation marks omitted).

In Hazelwood, the Court began by determining whether the newspaper

could be characterized as a public forum. Because public schools do not possess

the attributes of traditional public forums, the Court found that "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,'or by some segment of the public, such as student organizations." Id. at

267 (internal citations omitted) (quoting Perry Educ. Ass'n v Perry Local

Educators' Ass'n, 460 U.S. 37, 47 (1983)). If, instead, the facilities have "been

reserved for some other intended purpose, `communicative or otherwise,' then no

public forum has been created, and school officials may impose reasonable

restrictions on the speech of students, teachers, and other members of the school

community." Id. (quoting Perry Educ. Ass'n, 460 U.S. at 46 n.7). The Court

found that the school had not opened up Spectrum for "`indiscriminate use'" by

student reporters or the student body generally, and instead, that it had

"`reserve[d] the forum for its intended purpos[e],'" a supervised learning

experience for journalism students. Id. at 270 (quoting Perry Educ. Ass'n, 460

U.S. at 47, 46). Accordingly, school officials could regulate the contents of

Spectrum in "any reasonable manner." Id.

The district court read Hazelwood as only applying "to activities conducted

as part of the school curriculum." Fleming, 170 F. Supp.2d at 1108. We believe

this reading of Hazelwood is too narrow. We read the Court's definition of

"school-sponsored" speech to mean activities that might reasonably be perceived

to bear the imprimatur of the school and that involve pedagogical concerns.

In Hazelwood, the Court drew a crucial distinction between a school's

toleration of student speech that "happens to occur on the school premises," and

student speech that a school "affirmatively . . . promote[s]." Id. at 270-71. As

opposed to the pure student speech in Tinker, the Court held that a different

standard applied for determining "when a school may refuse to lend its name and

resources to the dissemination of student expression." Id. at 272-73. Two critical

concerns drove the Court in articulating the standard for school-sponsored speech:

the imprimatur and pedagogical interests of the school. If the speech at issue

bears the imprimatur of the school and involves pedagogical interests, then it is

school-sponsored speech, and the school may impose restrictions on it so long as

those restrictions are reasonably related to legitimate pedagogical concerns.

The imprimatur concept covers speech that is so closely connected to the

school that it appears the school is somehow sponsoring the speech. Expressive

activities that do not bear the imprimatur of the school could include a variety of

activities conducted by outside groups that take place on school facilities after-

school, such as club meetings. See generally, Good News Club v. Milford Cent.

Sch., 121 S.Ct. 2093, 2098 (2001) (involving a Christian children's club after-

school meetings). In contrast, expressive activities that the school allows to be

integrated permanently into the school environment and that students pass by

during the school day come much closer to reasonably bearing the imprimatur of

the school. Cf. DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d

958, 968 (9th Cir. 1999) (validating the concern that students would be a "captive

audience" to speech posted on the fence of a school's baseball field).

Further, the level of involvement of school officials in organizing and

supervising an event affects whether that activity bears the school's imprimatur.

See Planned Parenthood of S. Nev., Inc. v. Clark County Sch. Dist., 941 F.2d

817, 828-29 (9th Cir. 1991) (en banc) (finding that because school officials

exercised "editorial control" over and had to "specifically approve" the speech at

issue, that members of the public would likely perceive the speech "`to bear the

imprimatur of the school'"); Poling v. Murphy, 872 F.2d 757, 762 (6th Cir. 1989)

(finding there was "no doubt" that a student election and election assembly were

"`school-sponsored'" where the school scheduled the assembly during school-

hours on school property, "made attendance compulsory," "determined the

eligibility of prospective speakers," provided the voting machines, and "vetted

[the candidates'] speeches in advance").

The Court in Hazelwood also recognized the school's pedagogical interests.

Pedagogical means related to learning, and, like the Hazelwood Court, we give

substantial deference to educators' stated pedagogical concerns. The Court

recognized that its articulated standard for school-sponsored expression was

"consistent with [its] 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.(5)

(5) This court has also recognized our limited role as federal judges in

reviewing school decisions. See West v. Derby Unified Sch. Dist., 206 F.3d 1358,

1363 (10th Cir. 2000) ("[W]e reaffirm the principle that `[j]udicial interposition

in the operation of the public school system of the Nation raises problemsrequiring care and restraint . . . . By and large, public education in our Nation is

committed to the control of state and local authorities.'") (quoting Epperson v.

Arkansas, 393 U.S. 97, 104 (1968)), cert. denied, West v. Derby Unified Sch.

Dist., 121 S.Ct. 71 (2000); Miles v. Denver Pub. Sch., 944 F.2d 773, 779 (10th

Cir. 1991) ("We will protect appropriate constitutional interests. We should not

and will not run the schools.").

We think that the Court's language that activities are "school-sponsored"

speech if they are "designed to impart particular knowledge or skills to student

participants and audiences," id. at 271, means activities that affect learning, or in

other words, affect pedagogical concerns. "The universe of legitimate

pedagogical concerns is by no means confined to the academic . . . .[for it

includes] discipline, courtesy, and respect for authority." Poling, 872 F.2d at 762.

Many cases have applied a Hazelwood analysis to activities outside the

traditional classroom where, so long as the imprimatur test is satisfied, the

pedagogical test is satisfied simply by the school district's desire to avoid

controversy within a school environment. See Brody v. Spang, 957 F.2d 1108,

1122 (3d Cir. 1992) (commencement exercises and stating that avoidance of

controversy is a valid pedagogical purpose); Planned Parenthood, 941 F.2d at 828

(upholding the school's purpose in avoiding controversial topics in

advertisements contained in programs distributed at athletic events); Crosby v.

Holsinger, 852 F.2d 801, 802 (4th Cir. 1988) (finding school had a valid

pedagogical concern in avoiding a school mascot that was controversial to a segment of the school population); Lundberg v. West Monona. Cmty. Sch. Dist.,

731 F. Supp. 331, 338-39 (N.D. Iowa 1989) (concluding school had valid

educational purpose in avoiding religious controversy by banning prayer at

commencement exercises); David L. Dagley, Trends in Judicial Analysis Since

Hazelwood: Expressive Rights in the Public Schools, 123 Ed. Law Rep. 1, 9

(1998) ("In Hazelwood, curriculum became anything that might be perceived as

bearing the sponsorship of the school."); Bruce C. Hafen, Comment, Hazelwood

School District and the Role of First Amendment Institutions, 1988 Duke L.J.

685, 693-94 (1988) (stating that an education-related activity is one supervised

by a faculty member and designed to impart knowledge and skills to students "or

an activity that `students, parents, and members of the public might reasonably

perceive to bear the imprimatur of the school.'" (emphasis added) (quoting

Hazelwood, 484 U.S. at 271)). Indeed, the pedagogical concern in Hazelwood

itself was to avoid the controversial subjects of pregnancy and divorce in a

school setting because of the potentially disruptive nature of such subjects upon

young students.

Under Hazelwood, educators may exercise control over school-sponsored

speech so long as their actions are "reasonably related to legitimate pedagogical

concerns." 484 U.S. at 273. The Court recognized educators' need to consider

"the emotional maturity of the intended audience" when disseminating student speech on "potentially sensitive topics," as well as the school's prerogative to not

"associate [itself] with any position other than neutrality on matters of political

controversy." Id. at 272.

Finally, we conclude that Hazelwood allows educators to make viewpoint-

based decisions about school-sponsored speech. If Hazelwood required viewpoint

neutrality, then it would essentially provide the same analysis as under a

traditional nonpublic forum case: the restriction must be reasonable in light of its

purpose (a legitimate pedagogical concern) and must be viewpoint neutral. See

Hawkins v. City & County of Denver, 170 F.3d 1281, 1287 (10th Cir. 1999). In

light of the Court's emphasis on the "special characteristics of the school

environment," Hazelwood, 484 U.S. at 266 (internal quotation marks omitted),

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.

Our sister circuits have split over whether Hazelwood requires that schools'

restrictions on school-sponsored speech be viewpoint neutral. Most recently, the

Third Circuit expressed its view that Hazelwood does not require viewpoint

neutrality of school districts. "Hazelwood clearly stands for the proposition that

educators may impose non-viewpoint neutral restrictions on the content of student

speech in school-sponsored activities so long as those restrictions are reasonably

related to legitimate pedagogical concerns." C.H. ex rel. Z. H. v. Oliva, 195 F.3d

167, 172-73 (3d Cir. 1999), aff'd on other grounds,(6) C.H. ex rel. Z. H. v. Oliva,

226 F.3d 198 (3d Cir. 2000) (en banc), cert. denied, Hood v. Milford Township

Bd. of Educ., 121 S.Ct. 2519 (2001). The C.H. court reasoned that

the requirement of viewpoint neutrality, while essential to the analysis of a

school's restrictions on extracurricular speech, such as that at issue in

Rosenburger and Lamb's Chapel, is simply not applicable to restrictions on

the State's own speech. Under Hazelwood, "educators are entitled to

exercise greater control over student expression when it is elicited as part

of a teacher-supervised, school-sponsored activity. In that specific

environment, viewpoint neutrality is neither necessary nor appropriate, as

the school is there responsible for determining the content of the education

it provides.

195 F.3d at 173 (internal citations, quotation marks, ellipses, and alterations

omitted). The First Circuit reached a similar conclusion in Ward v. Hickey. 996

F.2d 448, 454 (1st Cir. 1993) ("[T]he Court in [Hazelwood] did not require that

school regulation of school-sponsored speech be viewpoint neutral.").

On the other side of the debate, the Ninth Circuit in Planned Parenthood

held that Hazelwood required viewpoint neutrality. Planned Parenthood, 941 F.2d

at 829 (requiring viewpoint neutrality but holding that the school district was viewpoint neutral in prohibiting all advertisements in school sponsored

publications addressing the subject of birth control). A subsequent panel of that

Circuit, however, recently has criticized that holding. Downs v. Los Angeles

Unified Sch. Dist., 228 F.3d 1003 (9th Cir. 2000), cert. denied, Downs v. Los

Angeles Unified Sch. Dist., 532 U.S. 994 (2001). "Despite the absence of express

`viewpoint neutrality' discussion anywhere in Hazelwood, the Planned Parenthood

court incorporated `viewpoint neutrality' analysis into nonpublic forum, school-

sponsored speech cases in our Circuit." Id. at 1010. The Downs court found itself

"compelled by Planned Parenthood" to view the school's restrictions on speech

"through a viewpoint neutrality microscope" if it found that the speech at issue

was school-sponsored.(7) Id. at 1011.

A divided panel of the Sixth Circuit in Kincaid v. Gibson, 191 F.3d 719

(6th Cir. 1999), stated, without discussion, that the Hazelwood Court "noted" that

non-viewpoint-based restrictions were part of its analysis. Id. at 727, rev'd and

remanded on other grounds, 236 F.3d 342 (6th Cir. 2001) (en banc). Upon

rehearing en banc, the Sixth Circuit held that the previous panel had erred in

(6) Upon rehearing en banc, an equally divided Third Circuit affirmed the

district court's ruling on procedural grounds, dismissing some claims for want of

jurisdiction, and remanding to give plaintiff an opportunity to cure the

deficiencies in her complaint. C.H. ex rel. Z.H. v. Oliva, 226 F.3d at 200-01. The

en banc panel "decline[d] to address the tendered constitutional issue under these

circumstances." Id. at 203.

(7) In Downs, a teacher wanted to post messages contrary to the school's

message of tolerance on a bulletin board that the school had designated for Gay

and Lesbian Awareness Month. 228 F.3d at 1005-07. The teacher contended that

the school impinged upon his free speech rights when it refused to allow him to

post the messages. See id. at 1005. The Downs court upheld the school's

restrictions, finding that the speech posted on the bulletin board was government

speech, and therefore not governed by Hazelwood. Id. at 1011.

applying Hazelwood to the case of a university newspaper, and found that the

newspaper was not a nonpublic forum, but instead was subject to the stricter

standards of a designated public forum. Kincaid, 236 F.3d at 346 & n.5. Because

the Kincaid panel opinion was reversed, it does not offer us much persuasive

value.

Finally, the Eleventh Circuit has expressed doubts that the Hazelwood

Court intended to "drastically rewrite First Amendment law to allow a school

official to discriminate based on a speaker's views," Searcey v. Harris, 888 F.2d

1314, 1319 n.7 (11th Cir. 1989), and stated it would "continue to require school

officials to make decisions relating to speech which are viewpoint neutral." Id. at

1325. Such a conclusion seems contrary to the emphasis that the Hazelwood

Court placed on the uniqueness of the public school setting and the deference

with which it viewed decisions made by educators.

We find the Third Circuit's opinion in C.H. to be persuasive and hold that

Hazelwood does not require educators' restrictions on school-sponsored speech to

be viewpoint neutral. Starting with Hazelwood itself, the case makes no mention

that the school's restriction must be neutral with respect to viewpoint, although

the Court had already decided Cornelius v. NAACP Legal Defense and

Educational Fund, Inc., 473 U.S. 788 (1985), which stated that government

restrictions in a nonpublic forum must not discriminate based on viewpoint. Id. at

806. Second, the Court's specific reasons supporting greater control over school-

sponsored speech, such as determining the appropriateness of the message, the

sensitivity of the issue, and with which messages a school chooses to associate

itself, often will turn on viewpoint-based judgments. "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."(8) Hazelwood, 484 U.S. at 272 (quoting Bethel Sch. Dist. No. 403 v.

Fraser, 478 U.S. 675, 683 (1986)) (internal citations omitted). No doubt the

school could promote student speech advocating against drug use, without being

obligated to sponsor speech with the opposing viewpoint. Hazelwood entrusts to

educators these decisions that require judgments based on viewpoint.(9)

Given the types of decisions that the Hazelwood Court recognized face

educators in "`awakening the child to cultural values'" and promoting conduct

consistent with "`the shared values of a civilized social order,'" we join our sister

circuits that have concluded Hazelwood does not require viewpoint neutrality.

Hazelwood, 484 U.S. at 272 (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493

(1954), and Fraser, 478 U.S. at 683).

3. Application of Hazelwood

We now turn to applying Hazelwood to the facts of this case. We begin by

asking whether the tile project constituted a public forum. See Miles, 944 F.2d at

776. The Supreme Court has recognized three distinct categories of government

property: "(1) traditional public fora; (2) designated public fora; and (3)

nonpublic fora." Hawkins, 170 F.3d at 1286. The parties concede that the tile

project does not constitute a traditional public forum or a designated public

forum, and our review of the record comports with this analysis.(10) As recognized

(8) Whether one reads this sentence as granting a school "the authority . . . to

associate itself with any position other than neutrality," or "the authority to refuse

. . . to associate itself with any position other than neutrality" on controversial

subjects, the import remains the same a school must "retain the authority" to

decide with which positions it will associate itself.

(9) Although we have never addressed this issue directly, our previous

opinion in Miles suggests Hazelwood does not require viewpoint neutrality.

Miles v. Denver Pub. Sch., 944 F.2d 773 (10th Cir. 1991). After classifying the

speech at issue as "school-sponsored" and finding that the school had asserted

legitimate pedagogical interests supporting its restriction of the speech, the Miles

court stated that "the only remaining question under Hazelwood is whether the

actions taken by the school are reasonably related to legitimate pedagogicalinterests." Id. at 778 (emphasis added). We never suggested that viewpoint

neutrality enters into the analysis.

(10) Appellees contend that the tile project is a "limited public forum," which

they acknowledge has recently been analyzed under a nonpublic forum rubric.

See Summum v. Callaghan, 130 F.3d 906, 914-15 (10th Cir. 1997) ("In more

recent cases, however, the Court has used the term `limited public forum' to

describe a type of nonpublic forum and has applied a reasonableness standard,"wherein the government may restrict speech "so long as the distinctions drawn are

reasonable in light of the purpose served by the forum and are viewpoint

neutral.") (internal citations and internal quotation marks omitted). They argue

that the District's restrictions were unreasonable and impermissibly

discriminatory based on viewpoint, which is generally prohibited even in a

nonpublic forum. See Ark. Educ. Television Comm'n. v. Forbes, 523 U.S. 666,

677-78 (1998). Thus, their central point on appeal is that the tile project should

be analyzed under the traditional nonpublic forum analysis, because they believe

it does not constitute school-sponsored speech under Hazelwood, or in the

alternative, that even under a Hazelwood analysis, the District's restrictions were

not reasonably related to legitimate pedagogical concerns.

by the Court in Hazelwood, "public schools do not possess all of the attributes of

streets, parks, and other traditional public forum that `time out of mind, have been

used for purposes of assembly, communicating thoughts between citizens, and

discussing public questions.'" 484 U.S. at 267 (quoting Hague v. CIO, 307 U.S.

496, 515 (1939)). Nor do we believe that the tile project constitutes a designated

public forum, as the District has not "`by policy or practice'" opened the tile

project "`for indiscriminate use by the general public,' or by some segment of the

public, such as student organizations." Hazelwood, 484 U.S. 267 (internal

citations omitted) (quoting Perry Educ. Ass'n, 460 U.S. at 47). From the tile

project's inception after the shooting, the District created and enforced

restrictions on what participants were allowed to paint, supervised the painting

sessions, and screened out inappropriate tiles. By showing this "affirmative intent

to retain editorial control and responsibility over" the tile project, the District demonstrated that it had not opened the tile project to indiscriminate use by the

participants. Planned Parenthood, 941 F.2d at 824. See, e.g., Hawkins, 170 F.3d

at 1288 (finding nonpublic forum where city allowed limited speech on property

but consistently enforced restrictions on leafletting and picketing). Instead, the

District reserved the tile project "for its intended purpose," Hazelwood, 484 U.S.

at 270 (alteration and internal quotation marks omitted), which was allowing

participants to take part in a reconstruction of the school. The level of control

that the District retained over the tile project fails to reveal the "clear intent to

create a public forum" that Hazelwood requires. Id. at 270. We therefore

conclude that the tile project was a nonpublic forum and turn to whether the tile

project constitutes school-sponsored speech.

a. Imprimatur

The tiles at issue in this case will become a lasting part of the school. The

presence of permanently affixed tiles on the walls implicates the school's

approval of those tiles. When coupled with organizing, supervising, approving

the funding, and screening the tiles, the school's decision permanently to mount

them on the walls conveys a level of approval of the message. If a tile

advocating racial hatred or sexual bigotry or encouraging the use of illicit drugs

were affixed to the walls, community members rightly might protest that the

school implicitly, if not explicitly, promoted such values and conduct. When a

tile, created pursuant to a project that the school supervised, and for which it

approved funding, is displayed permanently on school grounds, and when that

project aims to advance pedagogical concerns, the tile will normally be

considered school-sponsored speech.

In concluding that the tiles do not bear the imprimatur of the school, the

district court noted that a reasonable observer, charged with the history and

context in which the display appears, Capitol Square Review & Advisory Bd. v.

Pinette, 515 U.S. 753, 779-81 (1995) (O'Connor, J., concurring), "would be aware

through the press releases and extensive media coverage of the events

surrounding the shootings that CHS invited members of the Columbine

community in to paint the tiles as part of the healing process, and that the tiles

were not painted by or endorsed by CHS or the School District." Fleming, 170 F.

Supp.2d at 1110. No doubt the variety and number of tiles would lead an

observer to understand that the school itself did not paint the tiles. However, the

observer would likely perceive that the school had a role in setting guidelines for,

and ultimately approving, the tiles it allowed to become a part of the school itself,

which in this case, it did.

The level of school involvement over the tile project also belies a

conclusion that the tiles did not bear the imprimatur of the school. Although the

district court characterized the school's input as "limited," it made factual

findings that the District invited participants to take part in the painting sessions,

held the tile painting sessions at CHS, had faculty members supervise the

sessions, informed the participants "generally of the guidelines for tile content,"

set up a table at the entrance with "examples and posters of acceptable tile

designs," allocated the funds for the tile project out of the private fund which was

"to be used at the discretion of the principal," tried to screen and pull tiles

inconsistent with the guidelines before they were sent to be fired, organized

parent volunteers to affix the tiles and gave them instructions regarding

inappropriate subject matter, and evaluated and removed inappropriate tiles that

had fallen through the screening process. This level of involvement varies greatly

from the school cases involving extracurricular activities, such as Good News

Club, where the school did not call the meetings, invite participants, set the

agenda, approve funding, or supervise the meetings. Although the painting

activity took place outside of school hours and was not mandatory, the effects of

the painting are visible on the school walls throughout the building, during the

school day when children are compelled to attend.

Finally, in arguing that the tile project was not school-sponsored, the

Plaintiffs rely heavily on Ms. Monseu's statement in her deposition saying that

"this is a project outside of the school, this is a separate project, but we're trying

to keep track of what's going on, not necessarily control everything, but keep

track of what's going on."(11) We are obligated to examine the record as a whole,

however, and evaluate what the school actually did, as opposed to carving out an

isolated statement from the record. Because the school permanently integrated

the tiles into the school environment, and was significantly involved in the

creation, funding, supervision, and screening process of the tile project, we

conclude that the tiles bear the imprimatur of the school.

b. Pedagogical Concerns

We also find that the goal of the tile project, allowing participants to take

part in the reconstruction of the school, involves the type of pedagogical interests

with which Hazelwood was concerned. The purpose of reacquainting the students

with the school and participating in community healing falls under the broad

umbrella that courts have given to pedagogical purposes. For instance, one court

has instructed that school-sponsored activities under Hazelwood "need not occur

in a traditional classroom setting," Henerey v. City of St. Charles, 200 F.3d 1128,

1133 (8th Cir. 1999) (internal quotation marks omitted), and pedagogical

purposes such as teaching civility, learning leadership skills, and exposing students to the democratic process have been found to satisfy this component of

Hazelwood. See id. (finding school elections are pedagogical); Poling, 872 F.2d

at 762 (6th Cir. 1988) (same). Further, the environment in which learning takes

place, such as the school's hallways, can be a pedagogical concern, as it affects

the learning process.(12)

We do not think that the involvement of community members in the tile

project makes it any less of a school-sponsored event. The pedagogical concerns

recognized in Hazelwood, such as the emotional maturity of the audience and the

sensitivity of the topic, focus on who is listening, rather than who is speaking.

Hazelwood, 484 U.S. at 271-72. The Ninth Circuit also recognized in Planned

Parenthood that even though the speech at issue was from an outside entity, rather

than a student, the Hazelwood analysis did not change. 941 F.2d at 827.

The publication is the same and the audience is the same, whether the

source for the speech is from inside the school or outside, is paid or free.

The school has the same pedagogical concerns, such as respecting audience

maturity, disassociating itself from speech inconsistent with its educational

mission and avoiding the appearance of endorsing views, no matter who the

speaker is.

(11) In any event, this is a fairly ambiguous statement. This statement may

convey nothing more than the obvious that the project involved painting

sessions outside of school hours, in which selected non-students (but nevertheless

individuals with a connection to the tragedy of the shootings) could participate,

and the school did not mandate what must be painted (as opposed to controlling

those things that could not be painted). That statement does not sufficiently

disengage the school so as to avoid the school's imprimatur on the project.

(12) At oral argument, counsel for the Appellees agreed that pervasive tiles

throughout the school hallways touched upon a pedagogical concern. Judge

Murphy questioned counsel about the school's pedagogical interest in controlling

the appearance of the hallways, asking "But [the tile project] is pervasive in the

sense that it is throughout the school . . . . And doesn't that reflect upon the

pedagogical interests?" Appellees' counsel responded, "It, it does reflect upon

pedagogical interests. I mean what [school officials] want the school to look like

is certainly their business." (Oral Arg., 2/1/02, James R. Rouse, Sr..)

Id. (emphasis added).

The District's recognition that the school is part of a larger community,

here including parents and rescue workers who responded to the shooting, does

not make the tile project's purpose less of a pedagogical one. That is, so long as

a pedagogical purpose is present, we do not believe that the existence of broader

and consistent objectives, such as community involvement, should result in the

loss of the proper pedagogical purpose. Indeed, many school-sponsored events

include the participation of outside persons, whether it be a guest speaker, artist,

or musician. Just because a school has invited these people into the school to

participate in an event, such as a debate or panel discussion, should not mean that

the school loses control of the message that is conveyed to the students.

c. Reasonably Related to Legitimate Pedagogical Concerns

In creating the guidelines for the tile project, the District had two main

pedagogical concerns in mind: (1) it wanted to ensure that the interior of the

building remained a positive learning environment and not become a memorial to

the tragedy (Ord.,  F-22), and (2) it wanted to avoid divisiveness and disruption

from unrestrained religious debate on the walls.(13) Jon DeStefano, the school

(13) The District forecast that without the religious restriction, the walls could

become a "situs of disruption, debate, and controversy that totally overwhelmsand displaces the educational function of the building."

board president ultimately responsible for the board's general policy prohibiting

religious symbols to be affixed permanently to school walls, testified that if the

school allowed some religious symbols to be posted, it would open the door to all

types of sentiments, including inflammatory ones, such as Nazi symbols. To the

District, it was not just a question of permitting various mainstream religious

symbols, but of "opening all kinds of other doors" by doing so.(14)

Because the district court did not find the tile project to be "school-

sponsored" speech under Hazelwood, it did not address whether the District's

restrictions were reasonably related to these legitimate pedagogical concerns, but

instead evaluated them under a limited forum analysis. The District ultimately

relaxed the tile restrictions for the Plaintiffs, continuing to maintain only the

prohibitions on the date of the shooting, religious symbols, and anything obscene

or offensive. Only the first two of these restrictions were before the district

court, and thus, those are the two restrictions we now address, measuring them

against the District's legitimate pedagogical concerns.

The district court characterized the school's restriction on the date of the

shooting as unreasonable because the District allowed the Plaintiffs to paint the

name or initials of their child on the tiles, which would act as a reminder of the

shooting as much as the date 4/20/99 would. We disagree. In weighing the

competing interests of accommodating the victims' parents and preventing the tile

project from becoming a memorial to the shooting, the District struck a

reasonable balance. The Hazelwood standard does not require that the guidelines

be "the most reasonable or the only reasonable limitation[s]," only that they be

reasonable. Hawkins, 170 F.3d at 1287 (internal quotation marks omitted).

The fact that there are other references to the shooting in the school also

does not render the District's restrictions on the tile project unreasonable.

Those materials, which consisted primarily of a display case near the library,

plaques and posters in the "administrative offices and/or other places inside

CHS," and a sandstone memorial near the baseball field, constitute clear

government speech. As an initial matter, this court has recognized that the

government's own speech does not grant access to the public to speak on those

topics. "If the government's own speech could be used to support a claim that it

had thereby caused its facilities to become a public forum, then display cases in

(14) As pointed out at oral argument, under a traditional nonpublic forum

analysis, which the Appellees urged as the appropriate analysis for the tile

project, by allowing a tile stating "God is Love," the District would be obligated

to post tiles stating "God is Hate."

public hospitals, libraries, office buildings, military compounds, and other public

facilities immediately would become Hyde Parks open to every would-be pamphleteer and politician. This the Constitution does not require." Brown v.

Palmer, 944 F.2d 732, 738 (10th Cir. 1991) (en banc) (internal citations omitted),

aff'g 915 F.2d 1455 (10th Cir. 1990).

We perceive two main differences between the school's speech and the tile

project, leading us to conclude that the presence of these memorials does not

render the District's tile project restriction unreasonable. First, the tile project

involves speech that is pervasive throughout the school. As opposed to isolated

plaques in the office, or near the library, these tiles line the school halls, so that

students constantly view them on their way to class. Second, the school retains

control over the tone and manner of delivery of the speech that it chooses to

display in the building. Aided by the advice of psychologists about how best to

deal with the shooting, school officials could craft tasteful and appropriate

memorials to the victims. The school retained control over the parameters of this

speech, as opposed to allowing student responses, which could be more

inflammatory or judgmental. We think it is reasonable for the District to place a

few memorials in the school without having to allow unconstrained, controversial

student debate about the shooting throughout the hallways.

We also believe the District's restriction on religious symbols was

reasonably related to a pedagogical interest. If the District had advanced only the

purely legal reason of avoiding Establishment Clause liability as justifications for

the restrictions on the tiles, then we would not give Hazelwood deference to that

reasoning. Roberts v. Madigan, 921 F.2d 1047, 1057 n.10 (10th Cir. 1990).

Because this court is "well-equipped" to evaluate constitutional reasons, we do

not accord school districts asserting those reasons "the same deference as in other

cases involving issues that school officials are uniquely qualified to handle." Id.

In this case, however, the District asserted two pedagogical reasons for its

restriction on religious references: (1) religious references may serve as a

reminder of the shooting, and (2) to prevent the walls from becoming a situs for

religious debate, which would be disruptive to the learning environment.(15) We do

not need to address the first reason because we find the latter of these to be

reasonably related to the restriction on all religious symbols.(16)

Two courts recently have recognized a school's legitimate interest in

avoiding religious controversy and disruption resulting from the posting of

religious speech. In DiLoreto, the Ninth Circuit found the school district's

decision to exclude advertisements on a baseball field fence "on certain subjects,

including religion, was reasonable given the District's concerns regarding

disruption and controversy." 196 F.3d at 969. The DiLoreto court found that

(15) The District expressed a desire to avoid a "controversy that totally

overwhelms and displaces the educational function of the school building."

(16) The district court specifically did not analyze whether this restriction was

reasonable in light of the pedagogical reasons asserted, because it found that the

restriction was not viewpoint neutral. Fleming, 170 F. Supp.2d at 1113 n.5.

because students were a "captive audience" at classes and school-sponsored

events, the district's desire to avoid "controversy and distraction created by

political and religious messages" on the fence was reasonable. Id. at 968. The

court also noted the school district's concern that posting the religious speech,

"would force [it] to open the forum to all expressions of personal beliefs." Id.

The Seventh Circuit in Gernetzke v. Kenosha Unified School District No. 1, 274

F.3d 464 (7th Cir. 2001), recognized similar concerns, upholding a principal's

decision prohibiting a religious group's posting of a cross because he feared that

allowing the cross "might also require him to approve murals of a Satanic or neo-

Nazi character, which would cause an uproar." Id. at 466. Like these courts, we

believe that the District's restriction on religious symbols was reasonably related

to its legitimate goal of preventing disruptive religious debate on the school's

walls.

III. Conclusion

We conclude by noting that the Hazelwood analysis does not give schools

unbridled discretion over school-sponsored speech. A number of constitutional

restraints continue to operate on public schools' actions, such as the

Establishment Clause, the Free Exercise Clause, the Equal Protection Clause, and

substantive due process. In this case, the wisdom of the Supreme Court in

Hazelwood of fashioning a separate analysis for school sponsored speech is

obvious. If the District were required to be viewpoint neutral in this matter, the

District would be required to post tiles with inflammatory and divisive statements,

such as "God is Hate," once it allows tiles that say "God is Love." When posed

with such a choice, schools may very well elect to not sponsor speech at all,

thereby limiting speech instead of increasing it.(17) The District could be forced to

provide an opportunity for potentially thousands of participants to repaint their

tiles without any meaningful restrictions by the District, leading to a potentially

disruptive atmosphere in which to try to educate the students of Columbine High

School.

We REVERSE the judgment of the district court on the Plaintiffs' claim

under the Free Speech Clause of the First Amendment, and find that the District's

restrictions on the tile project were reasonably related to legitimate pedagogical

concerns. Therefore, we VACATE the district court's injunction ordering the

District to (1) provide an opportunity for the Flemings to paint the tiles they

wished to paint but were precluded from painting and (2) mount the tiles painted by the Petrones and Rohrboughs. We REMAND this case for further proceedings

consistent with this opinion.

(17) See generally Ark. Educ. Television Comm'n, 523 U.S. at 681-82

(stating that when institutions are forced to choose between "a cacophony on one

the hand, and First Amendment liability, on the other," such a choice "does not

promote speech but represses it").