The suspensions of seven pro-life students at two Roswell, N.M., high schools for distributing rubber fetuses have given birth to a lawsuit that takes the First Amendment protections for student speech into uncharted territory.

The students, who belong to a religious youth group called Relentless in Roswell, sued school officials last month, alleging their suspensions were unconstitutional. They were disciplined in February after they handed out hundreds of fetus dolls at Goddard and Roswell High Schools before classes.

The complaint describes the dolls as two inches in length and “the actual size and weight of a developing unborn child at 12 weeks’ gestation.” Attached to the dolls was a verse from the Bible: “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.”

“With a tangible and compelling communication medium,” the suit says,

Plaintiffs sought to inform the other students of the truth about abortion, to point them to God, the Creator and protector of life in the womb, to encourage them to protect the life of the unborn, and to provide information concerning alternatives to abortion that would result in saving the babies instead of destroying them.

Liberty Counsel, a conservative advocacy group, is representing the plaintiffs, who are seeking injunctive relief and the return of dolls that were confiscated by school officials.

Under the U.S. Supreme Court's ruling in Tinker v. Des Moines Independent Community Sch. Dist., 393 U.S. 503 (1969), officials can only censor student speech that would seriously disrupt classroom or school activities. And pro-life activists in the nation’s schools have a track record of success in cases involving such materials as buttons, t-shirts and flyers.

Earlier this year, a New Jersey judge found a student was improperly suspended for distributing pro-life flyers, noting there was no evidence that other students were upset by the flyers and “this somehow caused a disruption to the learning environment.” C.H. v. Bridgeton Board of Education.

But there appears to be no case that addresses the distribution in schools of a graphic pro-life prop such as a rubber fetus.

The Relentless in Roswell plaintiffs started out handing out more innocuous religious materials, including candy canes and painted “affirmation rocks.” On Jan. 29, they first attempted to distribute the rubber fetuses to which they had attached, in addition to the Bible verse, contact information for a church-affiliated pregnancy counseling center.

Before classes started that day, a Goddard High administrator allegedly told the Relentless students, “It’s time to shut this down ... Some people are getting offended.” He then confiscated containers holding hundreds of the rubber babies.

At the Roswell High campus, the principal sent an e-mail to faculty which said the dolls should be confiscated since “These materials have NOT been approved from our central office for distribution.”

The prior approval issue is likely to be part of the Roswell Independent School District's defense. The district's policy says in part: “Promotional activities must be approved by the school principal.”

But the Relentless students say in their suit that the rubber babies were not "'advertising' or 'promotional' items in any commercial sense; they 'promoted' only [pro-life] ideas."

As far as offensiveness, the rubber fetuses may be more extreme than flyers and t-shirts. But in the recent “Bong Hits 4 Jesus” case, the Supreme Court rejected the idea that student speech is “proscribable because it is plainly 'offensive.'" Morse v. Frederick, 127 S. Ct. 2618 (2007).

Even if the dolls upset some students, the Roswell district won't carry the day unless it can show "a disruption to the learning environment."

By Matt Reynolds
7/14/10