Cite as: 557 U. S.

____ (2009)
Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports.
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SUPREME COURT OF THE UNITED STATES

_________________
No. 09-0001
_________________

ABBEY RHODE, ET AL., PETITIONERS

v.
OKLAHOMA CITY SD.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[November 6, 2009]

JUSTICE RIHA delivered the opinion of the Court.

 
In the Oklahoma City School District, discipline among students had been a

continuing issue; therefore the district revamped its policies to address these

matters. Their “Code of Student Conduct” was revamped and renamed “Patriotic

Rules are OK! Handbook”. Principles from the various schools were expected, as a

part of their duties to enforce these standards and disciplinary guidelines. This case

deals primarily with issues at a magnet school hereinafter referred to as “OKC-LA”.

In this case, which has been combined with others previous, we consider 8

issues regarding the regarding potential infringements of constitutional rights.

These issues are raised in the Petitioners request for relief. The underlying facts of

the case are undisputed by either party, in light of our ruling; we need not reach the

question of whether respondent’s actions violated the Establishment clause.

We conclude the majority of the issues are indeed violations and

impermissible infringements of rights secured through the constitution. We decline

to decide the issue of monetary damages and choose to return this issue to the lower

court.
 ABBEY  RHODE,  ET  AL.,  v.  OKLAHOMA  CITY  SD  

2  

The drama club of OKC-LA, under the direction of President Abbey Rhode, elected to

perform the play “Vagina Monologues”. Under the new guidelines issued by the

board, which state “…In order to maintain the moral integrity and patriotism of our

students, no student or student group shall publish, disseminate, perform, reproduce,

or display…any material that is sexually explicit in nature…” Abbey understood she

would no longer be able to meet at the school, and instead chose to hold some

meetings and all practices off campus, and to perform the play off-campus at a local

recreation center. Principal Theodore Nugent informed Rhode, they would still be

unable to select the play based on its sexually explicit conduct. The Drama club at

OKC-LA is a student organization, supervised by community volunteers and no

academic credit is issued by participation of students. The club was formed as a

school run extra-curricula activity, but no longer receives any support or assistance

from the school other than occasional meetings and the use of the name “ OKC-LA

High Drama Club”

On the issue of the violation of free speech rights, we find the Principal’s decision to

prohibit the meeting of the Drama club on school grounds does not infringe upon the

rights of Ms. Rhode. Her right to to meet on school premises is not absolute and does

not violate the Equal Access clause as in BOE of Westside Community Schools v.

Mergens (1989), because it appears, based upon the facts provided that the school

district did not make the rooms available to others for use after hours.

The second issue inherent in this decision is whether the Principals continued

censorship or control of the choice or subject matter of the Drama Club infringes on

respondents right to free speech. We conclude it does not, in Hazelwood v. Kuhlmeier

 ABBEY  RHODE,  ET  AL.,  v.  OKLAHOMA  CITY  SD  

3  
(1986) the court held that schools cannot be required to promote particular types of

student speech. The use of the school’s name in the club “OKC-LA High Drama

Club”, even though the school does not administer or provide support, still implies

association. Under the previous decision, a principal may choose to limit deleterious

content, which may be “inconsistent with the shared values of a civilized social

order.”

II

Elections for various student government positions held at OKC-LA high

school come with certain rules and restrictions regarding campaigning and how a

student may go about promoting his or herself. George Michael, posted signs in the

hallways promoting himself for student President. The signs stated “Queer Guy for

OKC-LA High Michael for Student Body President” and “Gay Guys Know

Everything: Vote George Michael!” The Principal ordered the signs removed because

they were sexually explicit and disruptive to the educational environment.

We conclude on this issue that the school’s prohibition of Michael’s posters

did indeed violate his right to free speech protected under the constitution. In Texas

v. Johnson we held that “officials do not have the authority to designate the symbols

used to communicate a message”. Moreover, the Principal’s interpretation of sexually

explicit material does not meet the commonly accepted test that we have established.

Morse v. Frederick does not apply to this case, because the actions of the Respondent

did not involve the usage of illegal drugs.

III

The school district not only has a vested interest in protecting the safety and

security of its students, it also has an obligation to that effect. The school has
 ABBEY  RHODE,  ET  AL.,  v.  OKLAHOMA  CITY  SD  

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presently enacted a search policy which requires that “…All students who attend

OKC schools are subject to suspicion less searches of three types: 1) All students

must be screened by a metal detector prior to entering the school; 2) Any student

may be singled out, without suspicion, for a search at any time on school property.

Student bags, jackets, pockets, purses, or any other personal items may be searched;

and 3) All students are required to submit to random drug testing throughout the

school year and every student is required to be tested at least once.” Donita Sparks, a

high school senior, arrived late for school. After passing through a metal detector

with metallic piercings, which was confirmed to be in good working order she

proceeded to enter the school. After arriving 2 minutes late for her class, with

another student Robert Smith, they were informed they would both be searched in

the back of the class. They were both subject to a cursory pat down and then

instructed to untuck their shirts. Neither was informed as to a reason for the search.

We conclude that the searches of the students did not violate their freedom from

unreasonable search and seizure. Even if we apply the tighter standard of Terry v.

Ohio the respondents issue, the search was limited and scope and did not involve

anything more than a pat down, commonly referred to as a Terry Frisk. Furthermore,

pursuant to our decision of New Jersey v. T.L.O (minor child) (1983), the school

district need not be held to a higher standard, as is the case with law enforcement

agencies, because the school requires a lower standard of “reasonableness.”

IV

Frank Black is a student who was chosen to be drug tested in accordance with

the school district’s newly implemented policy. Black, who was not involved in any

extracurricular school activities refused to submit to the drug testing.

 ABBEY  RHODE,  ET  AL.,  v.  OKLAHOMA  CITY  SD  

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Because the stipulated facts do not involve any punitive or discriminatory

action towards Black for refusal to submit to testing, we did not decide in this issue.

However, in the event a student was subject to punishment due to the

inability or refusal to submit to drug testing, we would likely side with the district,

given its compelling interest to protect the safety of its students and to discourage

drug use. In both Vernonia School District v. Acton (1994) and Board of Education v.

Earls (2001) we held that the students’ freedoms were not impaired in such a way

that would violate any expectation of privacy or right to be free from unreasonable

search and seizure.

Richard Butler, a student of OKC-LA, visited his guidance counselor

who observed him wearing the necklace. The Principal was informed thereafter and

informed Butler that if he continued wearing the necklace, he would be suspended

following a recommendation for expulsion. Butler has been a self identified Wiccan

for two years prior to this incident. Christian students are allowed to wear religious

devices without any repercussions. The school policy states, “’…Satanic cult dress,

witchcraft and related symbols’…are forbidden to be worn in school. Students in

violation will be suspended and/or recommended to the Board for expulsion…”

We conclude that the Butler’s right to free exercise of religion was infringed

upon in violation of the right to free practice of religion. In Tinker v. Des Moines Ind.

Comm. School Dist (1968) we decided that the wearing of armbands or other items
 ABBEY  RHODE,  ET  AL.,  v.  OKLAHOMA  CITY  SD  

6  
would not interfere with substantial school discipline. Moreover, the fact that

Christian students are able to wear their necklaces, only further supports Butler’s

claim.

Secondly, the school district may appeal to the sense of order and proper

discipline, which must be brought about in a setting of education. The fact that

Butler had been harassed for his choice of religion sets the burden not upon Butler,

but rather the school district to provide a safe and welcoming school atmosphere.

This effectively negates the inclusion of Goldman v. Weinberger (1985), which

maintained that order is necessary for the functioning of a cohesive unit.

VI

The school district’s policy of limiting “’…Satanic cult dress, witchcraft and

related symbols…” was instituted, and is currently being opposed by respondents due

to its purported violation of the establishment clause of the 2nd Amendment.

We find that the school district is indeed restricting its students’ ability to

freely practice their religion of choice. We decided in Church of the Lukumi Babalu

Aye v. Hialeah (1992) that ordinances or rules could not be applied to specifically

target a specific religious group or groups. The schools enforcement of their provision

banning satanic dress, neither serves the good of the student body, nor preserves

good order.

VII

The school district recently enacted a provision self-stated to “…maintain the

morality and patriotism of our students and declare our fealty to American
 ABBEY  RHODE,  ET  AL.,  v.  OKLAHOMA  CITY  SD  

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capitalism each classroom shall have a 24” x 30” sign posted on the wall displaying

the words ‘In God We Trust’”.

We have long held that our country was founded upon religious beliefs and

such beliefs continue to shape the way the country and its laws are created. The

simple words “In God We Trust” can be found everywhere from currency, to

courthouses, and indeed even this Honorable courthouse. The mere words do not

imply a certain government approval of religion and do not apply to our ruling in Lee

v. Weisman (1991), and Abington School District v. Schempp (1962) which govern

implicit state sponsored religion and religious activities. We therefore conclude that

the signs do not violate the respondent’s rights.

VIII

We turn finally to the the recently enacted policy that includes the following

clause “…In order to establish and maintain discipline, regain our moral compass,

and create an institutional focus on the importance of the American legal system and

its reliance upon the moral, legal and historical antecedents of American Judeo-

Christian heritage, a monument made of limestone and measuring six feet tall shall

be inscribed with the Ten Commandments on one side, the Mayflower Compact on

the other, and shall be placed on the front lawn of every Oklahoma City school.” It is

important to note that, no monument of any kind had been placed on the properties

any time prior.

We conclude that the monument is a clear and egregious violation of the

Establishment Clause. We decided in McCreary County v. ACLU (2004) that the

display of the Ten Commandments by the county violated the Establishment clause
 ABBEY  RHODE,  ET  AL.,  v.  OKLAHOMA  CITY  SD  

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because the purpose was to advance religion. Here we see the stated purpose is to

“…focus…on Judeo-Christian heritage…” clearly contrary to the intention of the

Establishment Clause. Our previous decision in Van Orden v. Perry (2004) does not

apply to this case because the intent was not to promote Christianity. Similarly in

Allegheny v. ACLU (1988), we held that the clear message sent by the city did indeed

violate the Establishment Clause. There is no legitimate secular purpose that has

been afforded by the school district to defend their actions in this instance. The

defense that the monument advances historical knowledge, and reflection as decided

in Lynch v. Donnelly (1983) does not apply in this case yet again, because of the

stated purpose.

There is no question that the majority of the new policy handbook is

fundamentally flawed and may expose the district to liability. We strongly encourage

the district to examine its policies and motives with regards to the enact ion of the

new rules.

* * *

We reverse the judgment of the Court of Appeals and remand the cases for the

District Court to determine whether, in accordance with the standards set out in this

opinion, petitioners should be granted relief from the judgment.

It is so ordered.