Students Lose Fight Over Rubber Fetus Campaign

(CN) - Teenagers who were barred from distributing rubber fetuses at their high schools to protest abortion do not have a discrimination case, the 10th Circuit ruled.

The five plaintiffs in this case are or were enrolled at public high schools in Roswell, N.M., when they attempted to distribute 2,500 rubber fetuses on Jan. 29, 2010.

All five belonged to a religious youth group called Relentless in Roswell.

Earlier that year, members of the group had handed out more innocuous religious materials, including candy canes and painted "affirmation rocks."

Though the previous events had proceeded without incident, the students caught heat for passing out the rubber dolls along with a Bible verse and contact information for a church-affiliated pregnancy counseling center.

Relentless has described the dolls as 2 inches in length, "the actual size and weight of a developing unborn child at 12 weeks' gestation." The attached scripture states: "For you formed my inward parts; You wove me in my mother's womb. I will give thanks to You, for I am fearfully and wonderfully made; Wonderful are your works."

After the assistant principal of Goddard High noticed the distribution, he shut it down and confiscated the dolls, minus the 300 that had already been passed out. Alerted to the Goddard High distribution, the principal at Roswell High School directed campus security to confiscate dolls there if the distribution is disruptive to the educational process.

When Relentless members attempted a second distribution of the dolls, both schools again took action. Later that year and the next, the group's members distributed additional Christian-themed products without much incident.

In a June 2010 federal complaint, the students and some of their parents challenged the constitutionality of the on-campus distribution policies for the Roswell Independent School District.

At the close of discovery, a magistrate judge granted the district summary judgment on all claims.

A three-judge panel of the 10th Circuit affirmed Monday, noting the massive disruptions that both high schools experienced because of the doll distribution.

"Several students covered the dolls in hand sanitizer and lit them on fire," Judge Scott Matheson wrote for the Denver, Colo.-based panel. "One or more male students removed the dolls' heads, inverted the bodies to make them resemble penises, and hung them on the outside of their pants' zippers."

Calling the students' expression "neither silent nor passive," Matheson said the "sheer number" of fetus dolls handed out "created strong potential for substantial disruption."

"Furthermore, these fetus dolls were made of rubber - a material that could easily be, and was, pulled apart, bounced against walls, and stuck to ceilings," according to the 55-page ruling. "The dolls' small size made them tempting projectiles and toilet-clogging devices. This scenario carries more potential for disruption than the passive, silent act of wearing a t-shirt or a black armband. And that potential quickly came to fruition," Matheson wrote. "The record is replete with reports of doll-related disruptions throughout the day on Jan. 29, 2010, including substantial disruptions to classroom instruction, damage to school property (the ceilings and plumbing), and risks to student safety (the fire-starting and doll-throwing)."

The panel also upheld the district policies, which the students challenged as unconstitutionally vague.

Finding that the policies passed "constitutional muster," Matheson noted that the policy requires schools to approve or deny a student request within five school days, and lets students appeal denials.

"The policy is not unconstitutional under the prior restraint doctrine because it constrains official discretion and contains adequate procedural safeguards - and because it applies to the school environment where greater deference is given to school officials," Matheson wrote. "It is not void for vagueness because students of ordinary intelligence can understand its meaning and it neither authorizes nor encourages arbitrary or discriminatory enforcement."

Matheson stressed that the ruling does not permit the district to apply its policy unconstitutionally.

"They must provide a fact-based explanation for why officials reasonably forecast that a particular distribution will cause a substantial disruption," Matheson wrote.

He added that the district did not ban the dolls "based on religion."

Furthermore the plaintiffs were not "treated differently from similarly situated students," according to the ruling.

"The only reasonable inference from the record is that the district disallowed the rubber fetus dolls for the neutral reason that they were disruptive, and that it allowed the other distributions and expressions for the neutral reason that they were not disruptive," Matheson wrote.

Four of the student plaintiffs - Seth Taylor, Lacy Corman, Arielle Green and Reed May - have since graduated. The fifth, Jacob Cobbs, is expected to graduate this year.

Judge Paul Kelly and Judge William Holloway joined the unanimous decision.

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