until the issues regarding the previous policies have been resolved.
ON RESERVED ISSUES
As discussed in this Court's Order of September 19, 1989, this case
involves challenges to Moline High School's regulation on the
distribution of non-school literature on school grounds. Three different
regulations are involved in the lawsuit as a whole. In its Order of
September 19, 1989, this Court determined that the written regulation
which is in effect now and has been in effect since November 24, 1987
withstands constitutional challenge. This Order deals with the validity
of the other two regulations. Pending before the Court are Cross-Motions
for Summary Judgment regarding those two regulations.
Initially there is some dispute between the parties as to what the
substance of the regulation was at the time these Plaintiffs were first
affected by it. On the one hand, Assistant Principal Mary Foster, who was
acting principal on October 19, 1987, told the students that it was her
understanding that distribution of political or religious literature on
school grounds was prohibited. The record shows that she conveyed this
information to the Plaintiffs and subsequently to the Principal of the
school, Keith Schwab.
On the other hand, however, Mr. Schwab asserts in his affidavit that
the practice at the school was to limit distribution of materials to
making them available from the school office. In other words, Schwab
claims that the policy prior to November 19, 1987 was in fact the same as
the policy which was announced to the student body on November 19, 1987
and in effect until the written policy was implemented on November 24.
This Court has considered all the evidence in the record and finds
that, despite Schwab's assertions, the de facto policy was as expressed
by Assistant Principal Foster. First, the record contains nothing which
contradicts the Plaintiffs' version of what they were told by Foster.
Indeed, Foster's own deposition supports the Plaintiffs' claim that they
were told no distribution of religious or political materials would be
allowed in the school. Second, according to Foster's deposition, she
informed Schwab of her conversation with the students very shortly after
that conversation took place. Schwab took no action to correct either
Foster's or the Plaintiffs "misunderstanding" of what the school's policy
was until November 19 when he announced the new rule. Rather, he allowed
the Plaintiffs to continue to operate under the assumption that he
school's practice was as Mary Foster had informed them.
Thus, the ultimate questions before this Court are (1) whether a
regulation which prohibits distribution of all political and religious
materials on school grounds can pass constitutional muster; and (2)
whether a regulation which limits "distribution" to a particular location
and which requires prior approval of the content of the printed
material, without providing any guideline for that approval is
The Court's initial concern (expressed at the hearing on July 25) was
whether these Plaintiffs had standing to challenge that rule. The record
as it existed at the time of the hearing indicated without contradiction
that these Plaintiffs had never been punished for distributing Issues and
Answers in contradiction to the rule. The record was vague at best as to
whether these Plaintiff had been chilled in exercise of any First
Amendment right which existed. In fact, the record seemed to indicate
that the Plaintiffs had distributed all the literature which they had,
and that they had made no further attempts to obtain more literature or
to pass it out until their meeting on November 19 with Schwab. By that
time, the school's regulation had been changed.
In response to the Court's concerns, Plaintiffs submitted a
supplemental memo and an additional affidavit of Plaintiff David Nelson.
The Defendants have moved to strike David Nelson's affidavit.
In his affidavit, David Nelson claims that between October 19 and
November 18, 1987, he "could have continued distributing additional
copies of Issues and Answers,
but chose not to because of the incident with Miss Foster."
Even if the Court considers his affidavit (an issue it is not here
deciding), there appears to have been no chilling effect on these
Plaintiffs. The language quoted above very carefully refrains from saying
that these Plaintiffs "would have" attempted to distribute further copies
of the magazine. Other than this affidavit, there is nothing in the
record which indicates that these Plaintiffs wanted or intended to
distribute further copies. Indeed, the record seems to indicate just the
opposite. In Nelson's deposition, for example, he stated that he made no
attempts to distribute any more copies between the initial discussion
with Miss Foster and the discussion with Mr. Schwab on November 19
"because they only come out once a month."
Since the Court finds that consideration of the affidavit makes no
difference in its determination of whether these particular Plaintiffs
were chilled, there is no need to rule on the Defendants' Motion to
Strike the Affidavit. Rather, the Court finds that the regulation
produced no chilling effect on these particular Plaintiffs.
 In certain instances, however, the lack of a direct injury or a
chilling effect on the Plaintiffs before the Court is not required for
standing to pursue a First Amendment challenge. In Schultz v. Frisby,
807 F.2d 1339 (7th Cir. 1986), the court considered the exceptions to the
general rule that constitutional adjudication requires "a review of the
application of a statute to the conduct of the party before the court."
Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118,
2125, 80 L.Ed.2d 772 (1984). In Taxpayers for Vincent, the Supreme Court
In order to decide whether the overbreadth exception
is applicable in a particular case, we have weighed
the likelihood that the statute's very existence will
inhibit free expression . . . where conduct and not
merely speech is involved, we believe that the
overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the
statute's plainly legitimate sweep."
Id. at 799-800, 104 S.Ct. at 2126. The Court went on to hold that there
must be a realistic danger that the statute itself will significantly
compromise recognized First Amendment protection of parties not before
the court in order for the plaintiffs before the court to challenge the
regulation facially on overbreadth grounds. Id. at 801, 104 S.Ct. at
2126-7. After so stating, the Court determined that the ordinance
challenged before it was not an appropriate case for an overbreadth
challenge because the record failed to indicate that the ordinance would
have any "different impact on any third party's interest in free speech
than it has on [parties before the court]." Id.
The record in the case presently before the Court strongly suggests
that other persons not presently before the Court would have been
impacted differently than were these Plaintiffs (who made no attempt to
exercise their First Amendment rights and who have demonstrated no desire
to have done so). It is entirely plausible that others would have desired
to distribute literature on school grounds and would have faced a
dilemma; whether to risk punishment or to refrain from distribution.
Although the Plaintiffs here did not face that dilemma, the likelihood
that others would is sufficient, under Vincent and Schultz, to confer
standing on these Plaintiffs. If the regulation was indeed what Mary
Foster said it was, it is clear that every person seeking access to the
students at the high school would "steer far wider of the unlawful zone
than if the boundaries of the forbidden areas were clearly marked."
Hirschkop v. Snead, 594 F.2d 356, 371 (4th Cir. 1979), quoting Baggett
v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). See,
Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268,
2276, 45 L.Ed.2d 125 (1975).
Additionally, there is a second aspect to the overbreadth doctrine. In
some cases, courts have invalidated statutes on their face without
inquiring into any particular applications to specific facts. In those
cases, the courts found that an ordinance or a rule was constitutionally
invalid on its face because it is unconstitutional in every conceivable
application, thus recognizing standing without any consideration of the
injury to or chilling effect on the parties before them. However, the
Supreme Court has also recognized that even if a statute or regulation is
demonstrably overbroad and may thus deter legitimate exercise of First
Amendment rights, a court must proceed with caution and restraint in
order to avoid undue interference with the state regulatory program. In
accommodating these competing interests, the Supreme Court has held "that
a state statute should not be deemed facially invalid unless it is not
readily subject to a narrowing construction by the state courts, . . .
and its deterrent effect on legitimate expression is both real and
 The regulation or practice in effect at the time of the initial
incident with these Plaintiffs appears incapable of being limited by
construction. First and foremost, it is a content-based regulation
treating religious and political speech differently and more
restrictively than other form of nonschool speech. Second, the regulation
was unwritten, which means that it was capable of illegitimate post hoc
rationalization. Finally, by its plain terms, the regulation was not
susceptible of a narrowing construction; it absolutely prohibited certain
broad categories of speech.
Even if the practice at the school had been as Principal Schwab claims
it was, similar criticisms can be offered. The regulation announced on
November 19, which is identical to the regulation Principal Schwab claims
existed prior to that date, contains no guidelines for the principal and
allows the school administration absolute discretion in granting or
withholding approval of distribution of the publications. Where a
regulation is not limited by some reasonably precise standard for
ascertaining acceptability, it is unconstitutionally vague.
As suggested in the above discussion regarding standing, this Court has
no doubt that both policies were unconstitutional on their face. A
content-based regulation linked to no compelling need and enforceable the
unbridled discretion of administrators cannot stand. Likewise, a policy
which requires prior approval of the printed material but which provides
no objective guidelines within which approval is to be given or withheld
Accordingly, the Court finds that the school's policy prior to November
19, 1987 as well as the policy in effect from November 19-24 were
unconstitutional. The Plaintiffs conceded that their damage claims
flowing from the November 19 rule as announced by Principal Schwab depend
upon a previous finding by this Court that the November 24 written
regulation was unconstitutional. Despite this concession, the Court find
a real and substantial distinction between the invalid rule in effect
from November 19 through November 24, and the valid rule implemented on
November 24. In other words, both the de facto policy and the oral policy
The Court notes that Plaintiff Matthew Rogerson has limited his claims
to the oral policy and the written policy; he states that he did not seek
to distribute Issues and Answers until after November 19. Accordingly,
the judgment entered by this Court regarding the first policy does not
apply to Mr. Rogerson.
Thus, the court GRANTS Plaintiffs' Motion for Summary Judgment and
DENIES Defendants Motion for Summary Judgment as to the de facto
regulation in effect prior to November 19, 1987. The Court GRANTS
Plaintiffs Motion for Summary Judgment and DENIES Defendants' Motion for
Summary Judgment as it relates to the oral policy announced on November
19, 1987. Be use these Plaintiffs have demonstrated no particularized
injury directly resulting from the constitutional violation, they are
titled only to nominal damages. Entry of injunctive relief would be
inappropriate since the regulation is no longer in effect an there is no
indication that the school has any intention of reverting to that rule.
Plaintiffs also seek attorneys' fees. They are directed to file a
petition, setting forth the amount sought, with whatever documentation is
necessary to support their claim. Such petition is to be filed within 21
days of the date of this order. Response by Defendant is due 14 days
This order shall not be deemed a final order for purposes of appeal
until the issue of attorneys' fees is resolved.
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