A student-flyer dispute in Indiana is becoming a test of how far schools can extend the notion that private speech resembles government speech.
The U.S. Supreme Court has been asked to take up E.D. v. Noblesville School District, a case that could redefine the boundary between student expression and school authority—while echoing warnings raised more than a decade ago in Walker v. Texas Division, Sons of Confederate Veterans.
At the center of the dispute is a Noblesville High School student, identified as E.D., who in 2021 founded a chapter of Students for Life and sought to post flyers advertising meetings. The flyers included images of students holding signs such as “Defund Planned Parenthood” and “I Am the Pro-Life Generation.” School officials rejected the materials, directing her to limit her postings to basic logistical details such as meeting time and location.
The student and her parents sued in 2022, alleging violations of the First Amendment and the Equal Access Act.
Lower courts sided with the school, and the United States Court of Appeals for the Seventh Circuit concluded that the flyers could reasonably be seen as bearing the school’s “imprimatur,” thereby allowing regulation under Hazelwood School District v. Kuhlmeier.
The Supreme Court petition argues that this interpretation reflects a broader alleged split among federal circuits and risks expanding the authority to censor schools, according to the Indianapolis Star.
The school district framed the issue narrowly, arguing that the school had created a limited forum—the hallway walls—for neutral club announcements, not for political advocacy. Because the flyers would appear “largely indistinguishable” from school-sponsored postings, the district maintained that restricting political content was permissible to avoid perceived endorsement.
A Foreshadowed Fight
That “reasonable observer” logic is precisely what free speech advocates warned about in Walker.
In that 2015 case, the Supreme Court held, in a 5–4 decision, that specialty license plates constituted government speech, thereby allowing Texas to reject a Confederate flag design.
The majority—led by Justice Stephen Breyer and joined by Justice Clarence Thomas, Justice Ruth Bader Ginsburg, and others—emphasized public perception and state control. In dissent, Justice Samuel Alito, joined by Chief Justice John Roberts, Justice Antonin Scalia, and Justice Anthony Kennedy, warned that the ruling would blur the line between private and government expression.
That unusual coalition underscored how unsettled the doctrine was: Thomas aligned with the Court’s left-wing bloc, while swing-vote Kennedy joined the ideologically opposing dissent.
In an amicus brief filed in Walker, the Foundation for Individual Rights and Expression argued that expanding the government-speech doctrine would give educational administrators a powerful new tool to suppress student speech by claiming that such speech could be mistaken for institutional messaging.
According to FIRE’s internal analysis at the time, educational administrators would likely “exploit the ruling as a new opportunity to further restrict protected expression on campus,” particularly by invoking misattribution concerns.
Noblesville Mirrors the Warning
Though the legal controversies are not identical, shades of these concerns are manifesting in the Nobelsville case.
“FIRE has long been concerned about attempts to use Hazelwood’s misattribution test as a subterfuge for censoring disfavored speech,” said Conor T. Fitzpatrick, a supervising senior attorney at the organization, in an email to The Dallas Express.
Fitzpatrick added that the “biggest practical risk” is a gradual expansion of what schools claim is attributable to them. “Students are smart enough to know when, for example, a student group (or individual student) is sharing a message and when it is coming from the school itself,” he said, arguing that Hazelwood should remain a “rare and narrow exception.”
The parallels to Walker are striking.
In both cases, government entities, such as the Nobelsville School District or Texas Department of Motor Vehicles, rely on perceived endorsement—what a “reasonable observer” might think—to justify restricting speech. But the contexts differ sharply.
In Walker, the state exercised direct editorial control over license plates it owned and issued as official IDs. In Noblesville, the speech comes from a student-led extracurricular club in a limited forum, with no clear evidence of school authorship or endorsement beyond the message’s physical location.
FIRE’s amicus brief in the Noblesville case explicitly invokes Justice Alito’s Walker dissent, arguing it “beggars belief” that observers would attribute conflicting student messages to the school—especially if opposing viewpoints could appear side by side.
The brief suggests a less restrictive alternative: a disclaimer clarifying that postings are student-generated, not school-endorsed.
What Happens If the Court Stays Out
If the Supreme Court declines to hear the case, the Seventh Circuit’s approach could stand, potentially reinforcing a broader interpretation of Hazelwood.
“We hope the Court will grant cert in Noblesville to appropriately cabin Hazelwood and make clear it is a rare and narrow exception,” Fitzpatrick said.
As of this writing, the Supreme Court has not indicated if it will take the Nobelsville case.
