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Rubber Fetus Dolls and Free Exercise of Religion in Schools

By William Peacock, Esq. | Last updated on

Relentless is a religious youth group in Roswell, New Mexico which is affiliated with a local religious institution. Youth group members routinely engage in religious expression at school, including prayer, religious outreach, and abortion discussions with fellow students.

One such campaign began in 2009, when the students, led by Pastor Tim Aguilar, distributed gifts of McDonald's chicken salad sandwiches, hot chocolate, candy canes with religious messages, and "affirmation rocks," which had spiritual references painted on one side.

Of course, none of their handouts compared to the day that they distributed rubber fetuses.

The Day of the Fetus

On January 29, 2010, the pastor and the students planned to hand out 2,500 small two-inch rubber dolls, each the size of a fetus at 12 weeks. You might guess what happened next. Give children fetus dolls and all hell breaks loose:

Many students pulled the dolls apart, tearing the heads off and using them as rubber balls or sticking them on pencil tops. Others threw dolls and doll parts at the "popcorn" ceilings so they became stuck. Dolls were used to plug toilets. Several students covered the dolls in hand sanitizer and lit them on fire. 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.

The students were not allowed to distribute the remaining dolls, either that day or at any other time. Valentines Day candy, on the other hand, was allowed, as were later distributions of Easter eggs, pencils, dogs tags, and other items with anti-abortion messages.

Relentless students sued, claiming that the school district violated their free speech rights by nixing the doll distribution. The district responded that the decision was based on its content neutral distribution policies.

SCOTUS and the Sister Circuits

In Tinker v. Des Moines, the Supreme Court held that a public school may not restrict private student expression unless the school reasonably forecasts it "would materially and substantially interfere with the requirements of appropriate discipline in operation of the school," or "impinge upon the rights of other students."

Here, not only was it foreseeable that giving rubber dolls to teenage boys would end poorly, but it actually did end poorly, with clogged toilets and flaming fetuses.

Sister circuits also provide support for the district's distribution policy. The vast majority of the circuit courts have upheld similar policies so long as they have adequate procedural safeguards and impose sufficient constraints on official discretion. It's also important to remember, in light of many recent SCOTUS and circuit opinions, that students' rights inside school are subject to reasonable restriction beyond what would be allowable outside of school.

Here, the policy was not only "strikingly similar" to one upheld by a sister circuit, but it also contained the requisite specificity, procedural safeguards, and constraints on school officials' discretion. As such, it passed constitutional muster.

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