Corder v. Lewis Palmer School District No. 38

By Rachel Kranz

The Tenth Circuit’s recent decision in Corder v. Lewis Palmer School District No. 38 comes three years after Erica Corder delivered a short thirty second speech to her graduating class at Lewis Palmer High School.  As required, Corder presented her speech to the school principal before graduation.  The speech was approved, but its content as presented at the ceremony was quite different.  After speaking about Jesus Christ in her valedictory speech on the day of graduation, Corder was escorted to the vice-principal’s office where she learned that she would have to issue an apology before she could receive her diploma.  Her apology was distributed via email, and she subsequently received her diploma. 

However, Lewis Palmer hadn’t heard the last from Corder.  Soon after, the student brought six claims against her former school district, including: 1) a violation of her First Amendment right to free speech, 2) a violation of the First Amendment in compelled speech, 3) a violation of her right to equal protection under the Fourteenth Amendment, 4) violating her First amendment freedom of religion rights, 5) a violation of Colorado Revised Statute § 22-1-120, and 6) a violation of the Establishment Clause of the First Amendment.  The district court dismissed each claim under F.R.C.P. 12(c) for judgment on the pleadings.  The Tenth Circuit reviewed the dismissal de novo, reviewing all of Corder’s six claims, with the exception of the Establishment Clause claim.  The Court affirmed the district court’s ruling on each of the five claims before it.  A petition for certiorari has since been filed to the U.S. Supreme Court on Corder’s behalf.

The Court first examined whether the relief Corder requested was moot before analyzing her claims.  Corder requested nominal damages, as well as a declaration that her First Amendment and Equal Protection rights were violated and that the unwritten policy of reviewing graduation speeches is unconstitutional.  Corder also sought an injunction against enforcing that unwritten policy.  Under Lane v. Simon,  a live controversy must exist in order to enforce declaratory and injunctive relief, and when a student graduates from school there no longer exists a live controversy “to support an action to participate in interscholastic activity.”  Because of this, the Court determined that Corder’s requests for declaratory and injunctive relief were moot.  Only Corder’s request for nominal damages remained for the Tenth Circuit’s review.

The Court then began its review of Corder’s five claims with an analysis of whether Corder’s First Amendment free speech was violated, spending the majority of the decision on this claim.  The Tenth Circuit began its review by recognizing that there are two distinct views that have emerged from the Supreme Court in regard to the treatment of a student’s exercise of free speech rights at school—the view in Tinker v. Des Moines Independent Community School District and the view in Hazelwood School District v. Kuhlmeier.  The Court concluded that this case is governed by the Hazelwood standard for school-sponsored speech and applied the case’s two prong test.  The first prong considered whether Corder’s valedictory speech is an expressive activity that “students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”  Hazelwood School District v. Kuhlmeier, 484 U.S 260 (1988).  The Court determined that this prong was easy to satisfy, as the Lewis Palmer graduation ceremony was clearly a school-sponsored activity.  The Court then analyzed the second prong, whether the School District’s actions were “reasonably related to legitimate pedagogical concerns.”  After deciding that graduation speeches classify as a learning opportunity, the Court held that the School District did not violate Corder’s free speech rights when she was required to present her speech before graduation.

Similarly, the same two prong test was applied to Corder’s First Amendment compelled speech claim.  The Tenth Circuit came to the same conclusion, that the graduate’s rights had not been violated by compelling her to issue an apology before she would receive her high school diploma.  Next, the Court considered whether Corder’s First Amendment free exercise of religion rights were violated when she was disciplined for presenting a different speech than she had originally gave to the principal.  Because she was disciplined for violating a religion-neutral school policy, and not necessarily for the content of her speech, the Court concluded that her freedom of religion rights had not been violated.  The Court also held that Corder's Fourteenth Amendment Equal Protection rights had not been violated, by holding that she was dissimilarly situated compared to the other speakers at graduation.  Finally, Corder claimed that the district court erred when it determined that her claim did not qualify under Colorado Revised Statute § 22-1-120 because the statute only applies to publications.  The Tenth Circuit affirmed the district court’s ruling that her claim does not fall within that statute.  Because the Court agreed with all of the district court’s decisions, the lower court’s grant of the School District’s motion for judgment on the pleadings was also affirmed.

The plaintiff may now have a chance to have her claims heard in front of the Supreme Court.  Liberty Counsel filed a Petition for Certiorari on Corder’s behalf on August 27, 2009.  The Supreme Court has only accepted one education related case thus far for its 2009-2010 term.