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NELSON v. MOLINE SCHOOL DISTRICT

September 19, 1989

DAVID NELSON, KATIE NELSON, MATTHEW ROGERSON AND LISA WARD, PLAINTIFFS,
v.
MOLINE SCHOOL DISTRICT NO. 40, RICHARD HENNEGAN, SUPERINTENDENT OF MOLINE SCHOOL DISTRICT, AND KEITH SCHWAB, PRINCIPAL OF MOLINE HIGH SCHOOL, DEFENDANTS



The opinion of the court was delivered by: Mihm, District Judge.

ORDER

Plaintiffs brought this action for declaratory relief, injunctive relief and nominal damages pursuant to 42 U.S.C. § 1983 and 1988, alleging deprivation of their First Amendment rights. Pending before the Court are Cross-Motions for Summary Judgment. For the reasons stated below, Plaintiffs' Motion for Summary Judgment is denied to the extent it challenges the regulation in effect at the present time; Defendants' Motion for Summary Judgment is granted as to the existing regulation and reserved as to the previous regulation.

The Court recognizes the parties' concerns over this lawsuit as a whole. However, because another school year has begun, the Court felt it was necessary first to address the questions regarding the present regulation. The parties may rest assured that the balance of the Motions will be decided as quickly as possible.

BACKGROUND

At the time of the events discussed herein, the four Plaintiffs were students at Moline High School. Keith Schwab had been the school principal for four years, serving as the chief supervisory and administrative officer of the school building. Mary Foster was the associate school principal.

On October 19, 1987, Schwab was in Chicago attending a meeting, and Mary Foster was acting principal. On that day, three of the Plaintiffs passed out copies of a non-denominational religious publication entitled Issues and Answers in school hallways before classes began. According to one of the Plaintiffs, another student reported to a hall monitor that the paper was being distributed, and the moniter informed Foster. Foster called Plaintiff David Nelson into her office during the middle of the first class period, looked over the magazine and told him that it was her understanding that he could not distribute it at school.

The Plaintiffs made no further attempts to distribute additional copies of the publication until mid-November. No disciplinary action was taken against any of the Plaintiffs for the October 19 incident.

Subsequently, Foster informed Schwab about the incident and told him that she had asked David Nelson to stop distributing the paper. Schwab took no immediate action.

On November 18, 1987, Schwab announced over the school intercom the new school policy regarding distribution of fliers, announcements and papers. The policy provided that:

   Students are not allowed to distribute fliers,
   announcements, or papers of any kind without approval
   by the school administration. If approved by the
   principal, handouts will be made available for
   students. Please check in the main office to leave
   any materials to be reviewed for approval.

The next day, Plaintiffs went to Schwab's office to discuss distribution of the new monthly Issues and Answers. Schwab looked at the only copy of Issues and Answers that the students had brought with them. He told them that he had no objection to the materials and that they could leave the material in his office for distribution. Plaintiff David Nelson replied that they only had one copy with them and would bring more the next day. Schwab then asked if hey would like a written announcement or the student bulletin, and David Nelson replied that they would. Schwab told t e students to write an announcement and he would make certain it was announce over the public address system. The students voiced no objection to this procedure.

However, the students never brought an announcement to be read or material to be distributed. According to one of the students, they decided not to leave the materials in the office because they were afraid not as many people would get copies; instead, the students personally distributed copies of Issues and Answers in the halls. The students were not disciplined for distributing these newspapers.

On November 24, 1987, Schwab announced a newly developed, written policy regarding distribution of non-school related materials. The policy provided:

   Students seeking to distribute non-school materials
   to the student body shall provide a copy of the
   material to the principal or the administrator in
   charge if the principal is unavailable for review.
   The principal or administrator in charge will approve
   the distribution within two hours of receipt unless
   the material is libelous, invades the privacy of
   others, is obscene or pornographic, is pervasively
   indecent and vulgar, will cause a material and
   substantial disruption of the proper and orderly
   operation of the school or school activities, or
   advertises a product or services not permitted for
   use by minors under the law. If the material is
   approved, the students will be allowed to distribute
   such material at any entrance or exit to the school
   both before and after school and at a place near the
   cafeteria designated by the principal during all
   lunch periods. Students shall not distribute
   materials in a manner which disrupts any school
   activity or blocks or impedes the safe flow of
   traffic within corridors and entrance ways of the
   school. Students who distribute such materials shall
   be responsible for cleaning up such materials thrown
   on the floors, in the school, or on the grounds
   outside the school. Additionally, such material may
   be left in the main office so that other students may
   obtain a copy during the school day.

Since the new policy was implemented, Plaintiffs have submitted copies of Issues and Answers to the office for approval each month. In each case the administrator in charge has reviewed and approved the issue presented, and the students have distributed copies at the designated times and locations. There is no evidence of anything disruptive in the distribution of Issues and Answers other than litter resulting from copies of Issues and Answers being tossed on the floor. Approximately 200 total copies have been distributed each month.

Plaintiffs filed a Complaint on December 14, 1987 alleging that the unwritten policy, the interim policy and the newly formulated policy all violate their First Amendment rights. In June 1989 Cross-Motions for Summary Judgment were filed to which responses and a reply were made. A hearing was held on August 25, 1989, at which time the parties were ordered to submit further pleadings regarding the school's policies which pre-dated the written policy now in effect. This order only concerns the existing policy; to the extent that the summary judgment Motions concern the prior policies, the Court reserves judgment.

The Defendants argue that this Court does not need to decide such broad issues as whether or under what circumstances a high school may prohibit distribution of a religious magazine in school, or whether other aspects of the school's policy regulating content on the basis of obscenity, libelousness, or other factors are proper. Rather, according to the Defendants, the only legal issue in dispute is whether the school's regulation as to the time, place and manner of the distribution of this particular magazine were so restrictive as to violate Plaintiffs constitutional rights. Specifically, Defendants argue that Plaintiffs Complaint only challenges the prohibition on distribution of the magazine to the student body between classes in the halls and classrooms of the high school during the school day.

Thus, Defendants claim that this Court must determine whether Moline High School's classrooms and halls (when classes are not in progress) are considered a public forum, a limited public forum, or a nonpublic forum with respect to distribution of non-school sponsored material. Depending upon the type of forum, the law regarding regulation of communication varies, as discussed in Perry Educational Association v. Perry Local Educators Association, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Defendants argue that during a school day the classrooms and halls are either a non-public forum, in which distribution may be completely prohibited or severely restricted, or a limited public forum, in which reasonable time, place and manner regulations can be enforced. Thus, in either case, none of the Plaintiffs' constitutional rights were violated, according to Defendants. Defendants reject the proposition that the school's classrooms and halls are a public forum.

Plaintiffs argue that under Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), a forum analysis is inappropriate. Instead, students First Amendment rights may only be limited in matters of curriculum (not involved in this case) and in student communication which "materially and substantially interferes with the requirements of appropriate discipline in the operation of the school."

Plaintiffs claim that the First Amendment offers broad protection for high school students in non-curriculum activities and communications. Because the existing policy at Moline High School amounts to a system of prior restraint and is not founded on any evidence of material disruption caused by the paper's distribution, Plaintiffs argue that the existing policy is unconstitutional.

In addition, Plaintiffs argue that the existing policy is both vague and overbroad. It neither identifies nor defines how the distribution of literary material would cause substantial or material disruption within the school, and it fails to identify any other compelling reason for imposing the current policy; in addition, the policy is not narrowly tailored to prevent a material and substantial disruption. Plaintiffs also claim that the policy is vague in its application and enforcement since it makes no distinction between various types of nonschool related material (i.e., notes, periodicals, newspapers, advertisements) and does not include any guidelines for evaluation or enforcement.

A number of other arguments are raised but because of the resolution of the constitutional claims, the Court need not consider those argument as they relate to the existing school policy.

DISCUSSION

[1] Students do not shed their constitutional rights at the schoolhouse gate. Tinker, 393 U.S. at 506, 89 S.Ct. at 736. However, the constitutional rights of students in public schools are not automatically co-extensive with the rights of adults and other settings. Bethel School District No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 3163-64, 92 L.Ed.2d 549 (1986); see also, New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733 83 L.Ed.2d 720 (1985). Rather, the scope of students constitutional rights must be determined in light of special characteristics inherent in a school environment. Tinker, 393 U.S. at 506, 89 S.Ct. at 736. In three cases the Supreme Court has specifically discussed the First Amendment rights of students in public schools.

In Tinker, a mall group of students engaged in a protest of the Vietnam War by wearing black armbands to school. The school then adopted a policy that any student wearing the armbands would be asked to remove them; if the student refused to remove the armband, the school would suspend the student until he or she returned with the armband removed. The plaintiffs in the case swore the armbands and, when asked to remove them, refused. They were suspended. The district court held that, while this was indeed protected symbolic speech, the school regulation was reasonable in order to prevent disturbances of school discipline. The Eighth Circuit affirmed without opinion.

The Supreme Court agreed with the district court that the students conduct was symbolic speech within the parameters of First Amendment rights available to students, noting the tension between the students First Amendment rights and the authority of states and schools to prescribe conduct ...


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