Justice Samuel Alito was the lone dissenter from the Supreme Court’s refusal Monday to hear what he deemed an important free speech issue in the case of an anti-abortion student who founded a pro-life club at her Indiana high school.  

Alito said in his dissent that the student, a minor identified in court papers as “E.D.,” had sought approval to hang flyers at school to advertise meetups for the club, but that the school wouldn’t approve them because they had pictures of students with “Defund Planned Parenthood” placards.

The justice said the case highlighted a tension in need of a high court resolution regarding how lower courts apply student speech precedents.

In the 1969 case of Tinker v. Des Moines Independent Community School District, the Supreme Court said officials couldn’t censor students’ individual expression unless the school showed that the censored speech “would materially and substantially disrupt the work and discipline of the school.”

Alito contrasted Tinker, which involved students wearing armbands to protest the Vietnam War, with the 1988 case of Hazelwood School District v. Kuhlmeier, which involved censorship of the student newspaper. There, the court said that when it comes to school-sponsored activities, officials had a lower bar to regulate speech by showing that censorship is “reasonably related to legitimate pedagogical concerns.”

But after the Hazelwood ruling, Alito said that “lower courts have struggled to ascertain its precise limits, and in my view, clarification by this Court is in order.”

Dissents like Alito’s highlight issues that are important to the writing justice and any other justices who join them.

The George W. Bush appointee, who authored the Dobbs ruling overturning abortion rights, said the distinction between private and government speech is critical because the First Amendment’s speech protections only constrain censorship of private speech. He said he would have granted E.D.’s petition “to clarify the relationship between Hazelwood and our subsequent government-speech decisions. In an appropriate case,” he said, “we should do so.”

The federal appeals court that ruled against E.D. said that a threshold issue was whether to view the case through the Tinker or Hazelwood lens. The appeals court said that it was the latter and ruled that the school’s action “aligns with both the nature of the school walls as a limited forum for student expression and its broader pedagogical duty to create a stable, neutral educational environment.”

The appeals court said the “trouble began” when the student “submitted flyers with political slogans and images for posting on the school’s walls.” The court said that school administrators told her “multiple times” that she had to revise them “to comply with the school’s neutral content rules for all student-club wall postings.”

Unsuccessfully seeking high court review, E.D.’s lawyers with the anti-abortion Alliance Defending Freedom said that there is an “entrenched” split in the nation’s lower courts over regulation of student speech and that their case “cleanly presents an important legal issue.” The group said students’ rights “shouldn’t depend on the judicial circuit where the students attend school.”

Successfully opposing review, the Noblesville School District said that no such split exists and that E.D.’s case would be a bad one for the justices to review anyway, because she would lose even under the most favorable standard to her.

The denial appeared on the Supreme Court’s order list, a document that contains the latest action on pending appeals. Most petitions are denied without comment from any of the justices, so dissents like Alito’s highlight issues that are important to the writing justice and any other justices who join them. It takes four justices to grant review.

Also among the court’s notable actions on Monday’s list were Alito dissenting, joined by Justice Clarence Thomas, from the denial of Alabama’s petition in a death penalty case; the court denying review of a petition from former Trump adviser Carter Page, without any noted dissent; and the court granting review in a case about jury trial rights for next term, which starts in October.

The court is in the process of handing down this term’s final decisions before breaking for the summer. Those final rulings typically come by July.

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The Supreme Court on Monday declined to hear an appeal from former Donald Trump adviser Carter Page, who alleged that he was illegally investigated in a probe into the 2016 Trump campaign’s ties to Russia.

None of the justices noted any objection to the denial of Page’s petition. The rejection appeared on the court’s order list, a document that announces the latest action in pending appeals. As usual, the court did not provide any explanation for the denial. The justices deny review of most of the petitions they receive.

In Page’s rejected petition, his lawyers said that warrants the FBI obtained from the Foreign Intelligence Surveillance Court to investigate him “contained multiple errors, omissions, and misstatements” and that agents leaked information about the surveillance to the press. Page sued former FBI Director James Comey and others he said were involved in the surveillance or disclosure.

The legal issue Page raised in his petition centered on timing. He argued that the lower courts applied too strict a standard against him when they said he waited too long to bring his claim.

The Trump Justice Department said in April that Page’s petition against the government was moot because of a then-recent settlement it had reached with the Trump ally. The DOJ expressed “no opinion” about whether the justices should still review Page’s remaining claims against the individuals he sued. Page maintained that the justices should proceed with that review, which the individuals successfully opposed. It takes four justices to grant review.

Monday’s denial on the order list noted that Justice Ketanji Brown Jackson did not participate in considering the case, citing her prior judicial service. The notation didn’t specify beyond that, but Page’s appeal came through Washington’s federal court system, where Jackson was a judge prior to her high court appointment.  

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