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Students who wanted to continue distributing fetus dolls in their New Mexico high schools were prohibited after the school district passed a policy that required prior approval of distributing more than 10 copies of "any non-school sponsored literature." The Tenth U.S. Circuit Court of Appeals upheld the school policy, saying school officials could prohibit the students' distribution of such dolls because they had caused disruptions at the school earlier and officials could reasonably forecast further disruptions. (AP Photo of a fetus doll by Bob Brown, sent in a different context to Virginia lawmakers in 2003, used with permission of The Associated Press.)

In Taylor v. Roswell Independent School District, 713 F.3d 25 (10th Cir. 2013), the Tenth U.S. Circuit Court of Appeals rejected the First Amendment claims of a group of students at two high schools who were prohibited from further distributing rubber fetus dolls at school to promote their religious and anti-abortion messages. The appeals court reasoned that the school officials were justified in believing that further distribution of the dolls would cause a substantial disruption under the U.S. Supreme Court’s seminal student-speech case, Tinker v. Des Moines Independent Community School District (1969)

New Mexico students banned from distributing fetus dolls at school

A group of students in Roswell, New Mexico, sought to distribute the rubber fetus dolls to further the beliefs of their religious group called “Relentless.” The group believed in spreading messages of Christianity and opposed abortion.

The students distributed the dolls at their high schools. Some students who were not members of the religious group took the dolls, tore off their heads, and threw the dolls on walls and ceilings. A few students even clogged school toilets with the dolls. Principals at the two high schools banned further distribution of the dolls. The school district then passed a policy that required prior approval before students distributed more than 10 copies of “any non-school sponsored literature.”

Circuit Court sided with school officials

The students sued, alleging that school officials violated their First Amendment free speech and free exercise of religion rights.  A reviewing magistrate rejected the students’ claims under both Tinker and the Supreme Court’s 1988 decision Hazelwood School District v. Kuhlmeier (1988), which gives school officials greater powers to restrict school-sponsored student speech. 

On appeal, the Tenth U.S. Circuit Court of Appeals also sided with school officials. The appeals court dismissed the idea that the Hazelwood standard applied, noting that the rubber fetus dolls were not school-sponsored speech but student-initiated speech.

The appeals court determined that school officials could prohibit the rubber fetus dolls, because their earlier distribution had caused disruptions at school and school officials could reasonably forecast further doll disruptions.   

The students had argued that the school distribution policy amounted to an unconstitutional prior restraint on expression without sufficient procedural safeguards for students’ free-speech rights.  The Tenth Circuit disagreed and upheld the distribution policy, because the policy was content neutral on its face and because the policy contained procedural safeguards, such as requiring school officials to respond to a student request for distribution with five days. 

The appeals court also rejected the students’ free exercise of religion claims, noting that the policy on its face applied to all student speech, not just religious speech.   

The decision is significant because it addresses a broad range of free speech issues in the school context and examines in detail the First Amendment rights of students to distribute materials in schools. 

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2017.​

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