The Oklahoma Bar Journal September 2022

ABOUT THE AUTHOR

18. Stanley v. Georgia , 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); see also Kleindienst v. Mandel , 408 U.S. 753, 762-763, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972); Martin v. Struthers , 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943) (citation omitted ); Lamont v. Postmaster General , 381 U.S. 301, 308, 85 S.Ct. 1493, 1497, 14 L.Ed.2d 398 (1965). 19. 457 U.S. 853 at 854. 20. Even within the curricular setting, the court has recognized there are limits upon the state: Meyer v. Nebraska , 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (striking down a state law that forbade the teaching of foreign languages in public and private schools); Epperson v. Arkansas , 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) (finding that a state law prohibiting the teaching of evolution in any state-supported school to be unconstitutional). 21. Mahanoy Area School District v. B.L , 594 U.S. _ (2021). 22. Pico , 457 U.S. at 871. 23. See B.H. ex rel. Hawk v. Easton Area School Dist. , 725 F.3d 293 (3rd Cir. 2013) (finding that middle school students wearing bracelets bearing the slogan “I ♥ Boobies! (Keep A Breast)” was not lewd or vulgar in the middle school setting when considered in context). See also Chandler v. McMinnville School Dist ., 978 F.2d 524 (9th Cir. 1992). 24. Turkish Coalition of Am., Inc. v. Bruininks , 678 F.3d 617 (10th Cir. 2012). 25. 557 F.3d 1177 (11th Cir. 2009). 26. Campbell v. St. Tammany Parish School Board , 64 F.3d 184 (5th Cir. 1995) (Relying on the analysis in Pico in holding that the removal of a nonfictional book tracing African tribal religious practices and referencing voodoo was unconstitutional); PFLAG v. Camdenton R-III School District , 853 F.Supp.2d 888 (Mo. W.D. Ct. 2012) (finding that a school internet filter that limited access to sites expressing a positive viewpoint toward LGBT individuals was a violation of student free speech). 27. 908 F.Supp. 864 (Dist. Ct. Kan. 1995). 28. See also Monteiro v. Tempe Union High School Dist., 158 F.3d 1022 (9th Cir. 1998) (stating, “A student’s First Amendment rights are infringed when books that have been determined by the school district to have legitimate educational value are removed from a mandatory reading list because of threats of damages, lawsuits, or other forms of retaliation.”). 29. Counts v. Cedarville School District , 295 F. Supp. 2d 996 (W.D. Ark. 2003). 30. Id., at 999. 31. But see e.g., Griswold v. Driscoll, 616 F.3d 53 (1st Cir. 2010) (stating, “Pico’s rule of decision, however, remains unclear” while still reviewing Pico . Further, Pico was distinguished to the extent that it applied to a curricular choice by the state board of education and was not applicable to the school library setting). 32. See Campbell v. St. Tammany Parish School Board , supra . 33. Monteiro v. Tempe Union High School Dist ., supra . 34. Pico , 457 U.S. at 853.

Anthony T. Childers is a staff attorney with the Oklahoma State School Boards Association. He is a 2010 graduate

of the OU College of Law and is a member and current president of the Oklahoma School Board Attorneys Association. ENDNOTES 1. Lamont v. Postmaster General , 381 U.S. 301 (1965). 2. Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988). 3. U.S. Const. amend. X. 4. See e.g., West Virginia State Board of Education v. Barnette , 319 U.S. 624 (1943) (invalidating the state’s compulsory flag salute law under the First Amendment’s Free Speech Clause); Engle v. Vitale , 370 U.S. 421 (1962) (holding that requiring a daily prayer written by the state board of regents at the start of every school day was a violation of the Establishment Clause); School District of Abington Township v. Schempp , 374 U.S. 203 (1963) (finding that a state law requiring “at least ten verses from the Holy Bible” to be read at the opening of each public school day was a violation of the establishment clause). 5. Pierce v. Society of Sisters , 268 U.S. 510 (1925) (holding that a law requiring all children to be enrolled in public education was a violation of the 14th Amendment); Wisconsin v. Yoder , 406 U.S. 205 (1972) (Wisconsin’s law requiring all school-age children until the age of 16 was unconstitutional as applied to an Amish family whose religious beliefs circumscribed education beyond the eighth grade). 6. Epperson v. Arkansas , 393 U.S. 97 (1967) (holding that a state law prohibiting the teaching of evolution in the classroom is unconstitutional). 7. Battle of the Books: Literary Censorship in the Public Schools, 1950-1985 by Lee Burress. Page 68. 8. https://pen.org/banned-in-the-usa. 9. Barnette , 319 U.S. 624 (1943). 10. Tinker v. Des Moines Independent Community School District , 393 U.S. 503 (1969). 11. Bethel School District v. Fraser , 478 U.S. 675 (1986). 12. Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988) (holding that a school sponsored student publication was subject to school review and censoring); Bethel v. Fraser , 478 U.S. 675 (1986) (holding that a student who gave a speech filled with sexual innuendos to the student body could be disciplined); and Morse v. Frederick , 551 U.S. 393 (2007) (a public school district did not violate students’ free speech rights when the students were disciplined for unfurling a banner reading “Bong Hits 4 Jesus” as the Olympic torch passed through town). 13. 457 U.S. 853 (1982). 14. Id ., at 856-857. 15. Id . 16. Id ., at 858. 17. As Justice White concurred as to the result, Pico is not binding. However, circuit courts have continued to follow the reasoning outlined in Pico in considering similar cases.

12 | SEPTEMBER 2022

THE OKLAHOMA BAR JOURNAL