Pro-life students in IN fight to defend the unborn and their free speech rights

As illustrated by E.D. v. Noblesville School District—a case from Indiana in which the Seventh Circuit recently heard oral arguments—controversies continue over the pro-life beliefs and free speech rights of students.

Late in the summer of 2021, prior to starting her first year of high school, E.D. contacted administrators requesting information about starting a student interest club called Noblesville Students for Life (NSFL). While school rules required such clubs to be student-driven and led, no written policies established procedures for their formation. On August 3, 2021, E.D. and her mother, Lisa Duell, met with the principal, Dr. Craig McCaffrey, because “her family had a rule that she was not to be alone with any male adult,” to request permission to create NSFL while explaining its pro-life mission.

Once McCaffrey approved NSFL’s creation, more than 30 students signed up to join. On August 27, 2021, E.D. met with Assistant Principal Janae Mobley to schedule a club meeting and clarify rules for posting flyers in approved school locations. Mobley forbade E.D. from posting items with pictures and materials, saying they could neither be political nor cause disruptions. Yet, the school lacked a written policy governing the content of flyers, including whether they could contain graphics and photographs, or how students were supposed to gain administrative approval to post materials. A policy did state that “students were not permitted to display posters on school walls without prior approval from an administrator.”

Following a meeting with another administrator, on September 3, 2021, Principal McCaffrey, a “self-professed pro-life supporter,” supposedly for the first time revoked NSFL’s recognition because he was no longer “confident that this club is a student-driven club.” McCaffrey and another official were apparently unaware that E.D.’s mother attended their meetings due to the family rule mentioned previously.

Although school officials reinstated NSFL as a student interest club effective January 2022, E.D. and her parents sued the board and educators for various federal and state claims.

The federal trial court judge began her rambling analysis by reviewing claims under the federal Equal Access Act. This act allows student-initiated groups to meet during non-instructional times to discuss “the religious, political, philosophical, or other content of the speech at such meetings” as long as they do not “materially and substantially interfere with the orderly conduct of educational activities within the school.”

At the outset of her rationale, the judge granted motions for summary judgment on behalf of the board and educators in their official and individual capacities, essentially dismissing these claims. The court rejected allegations against the board because it had neither an express policy nor a widespread practice or custom, causing the principal to revoke NSFL’s recognition. The court next denied the First Amendment free speech retaliation and Equal Access Act claims against officials because the principal was the sole decision-maker. The court added that the principal could not be liable both because NSFL’s speech lacked First Amendment protection and his concern that E.D. and her mother were “shopping” among administrators to find one who would have allowed her to display the posters.

The court rejected the state constitutional claims because, as indicated, McCaffrey’s having reinstated NSFL in January 2022 meant there was no reason to proceed with this issue. Finally, the court denied the state tort claims, including bullying, libel, slander, defamation, and intimidation because the plaintiffs failed to provide the defendants with proper notice of the charges.

It is puzzling that the principal apparently failed to investigate why E.D. included her mother in their meeting before eventually denying her request to form the NSFL as he acted hastily over his concern that the club was not student-driven and led. It is hard to know, but McCaffrey may have sought to avoid appearing to favor the club because of his, and other administrators, self-professed pro-life beliefs.

At the very least, especially because this was supposedly the first time McCaffrey revoked permission to start a club, he owed it to E.D. and other students who wished to join it to have taken the time and to investigate the matter fully so he could base his judgment on sufficient evidence. The fact that McCaffrey reversed course by recognizing NSFL four months later does not excuse his initial action. It will be interesting to see if additional details emerge in the Seventh Circuit’s judgment on what may have motivated McCaffrey’s revocation of the NSFL’s initial request to organize. Additionally, had he checked further on the mother’s involvement, perhaps the costly litigation could have been avoided.

An aspect of Noblesville that goes beyond this dispute is that one article that was available for free and another that was behind a paywall both continue to demonstrate ongoing media bias and lack of objectivity, let alone integrity, in referring to NSFL, and no doubt countless other similar groups, as anti-abortion rather than describe them accurately as pro-life. The media’s dishonest used of “pro-choice” in describing supporters of abortion not so subtly influences perceptions by suggesting that the pro-life students are against, rather than in favor of, something, namely defending the unborn, the most vulnerable segment of the American population on an issue causing great division in American society. In fairness, even though the judge’s order was unfavorable to NSFL, she had the intellectual honesty to describe it as what it is: a pro-life, rather than an anti-abortion, club.

Even in conceding that officials had set some limits on locations in the building where students could display posters, it makes little sense that educational administrators were apparently so unwilling to permit a pro-life student group to display its views even if those views may not have been popular. In light of ongoing threats to First Amendment free speech rights in the larger society, how can one expect students to grow into what one hopes will be tolerant, open-minded adults if they will not or cannot deal with perspectives other than their own?

At the same time, how much of the reluctance by the principal and other administrators to allow the NSFL students to display their pro-life messages was based on their fears of pushback from others with views to the contrary? If students and educators cannot learn to demonstrate tolerance for differences of opinion in schools by learning to disagree without being personally disagreeable, what hope is there when these individuals are out in the larger public marketplace of ideas?

Hopefully, the Seventh Circuit will not only enter a judgment in favor of NSFL clarifying its free speech rights as to the posters while establishing clear standards governing clubs but also provide educators with guidance protecting student expression on such vital issues as defending the precious lives of the unborn.