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