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October 28, 1992

MEGAN RENEE HEDGES and KEITH HEDGES, by and through their parents and next best friends, Kenneth and Nancy Hedges, and AMY NICHOLE LEWIS, by and through her parents and next best friends, Richard and Audrey Lewis, Plaintiffs,
WAUCONDA COMMUNITY UNIT SCHOOL DISTRICT NO. 118, DR. H. DARRELL DICK, Superintendent, and CHRISTINE GOLDEN, Principal of Wauconda Junior High School, Defendants.

The opinion of the court was delivered by: PAUL E. PLUNKETT

Hon. Paul E. Plunkett


 On October 18, 1991, we issued a memorandum opinion and order in which we held that the Wauconda Junior High School is a closed forum and that the new policy was reasonable and that it was not a facade for viewpoint-based discrimination. The Plaintiffs filed a timely motion for a new trial or alternatively for an amendment of our judgment, requesting that we reconsider our decision that the junior high school was a closed public forum. We agreed to reconsider our decision and to allow the parties to engage in further discovery directed solely at the forum issue. Discovery and briefing are now complete.

 After considering the parties' submissions, we have decided to amend our judgment as follows. First, we conclude that despite some uncertainty in Supreme Court and federal appellate court precedent, we properly found that Wauconda Junior High School was a closed forum. Second, the requirement in the new policy that only student-prepared material be distributed is unreasonable and consequently must be deleted. Third, the policy's time, place, and manner restrictions are invalid because in their current incarnation, these restrictions actually create the appearance of school sponsorship of student-distributed religious materials. Fourth and finally, we award damages to the Plaintiffs in the amount of ten dollars.


 When this action was filed, Megan Hedges was a thirteen-year-old, eighth-grade student at the Wauconda Junior High School and a member of the Wauconda Evangelical Free Church, both located in Wauconda, Illinois. Megan, who was quite active in her church, volunteered to distribute copies of a religious publication, Issues and Answers, at the junior high school. Megan and her family share a strong religious faith, and given the testimony of Megan's parents and the pastor of their church, it is clear that Megan wants to distribute copies of Issues and Answers as a way of "sharing her faith" with others.

 On November 2, 1990, Chris Dawson, the church youth group leader, arranged for the distribution to take place on the sidewalk in front of the school before the school day began. Megan and several other students distributed approximately 100 copies of the October issue of Issues and Answers to Wauconda Junior High School students as they arrived at school that morning. Megan testified that not one student who was offered a copy of Issues and Answers refused to take it. In fact, several students approached Megan and asked to help distribute the issues.

 The school principal, Christine Golden, noticed students reading Issues and Answers inside the school. She became concerned, after examining the publication, with certain references it made to satanism and Playboy magazine, and began collecting copies from students in her immediate area. She then contacted Dr. H. Darrell Dick, superintendent of the Wauconda Community School District, for further direction. Superintendent Dick directed Principal Golden to determine who distributed the publication and told her to give that person a copy of the School District's Leaflet Distribution Policy ("Original Policy").

 A. The Original Policy

 That policy, which became effective on November 1, 1990, *fn2" provided in part (with emphasis added):

 (4) Only students of Wauconda Community School District No. 118 are permitted to engage in the distribution of material on school grounds.

 . . . .

 (7) Distribution of written material that is obscence [sic] or pornographic, pervasively indecent and vulgar, libelous, invades the privacy of others or will cause substantial disruption of the proper and orderly operation of the school or school activities shall be prohibited. At the elementary and junior high school, written material that is of a religious nature is also prohibited. Students distributing such material shall be subject to discipline by the school administrators and/or the Board of Education.

 On November 13, 1990, Plaintiff Megan Hedges, by and through her parents and next best friends, Kenneth and Nancy Hedges, filed a two-count complaint against District Superintendent Dick, Principal Golden, and the Wauconda Community Unit School District No. 118 ("School District"). The Complaint sought a declaration that the restrictions imposed by the Defendants, which would prevent Megan Hedges from distributing Issues and Answers within the school, were unconstitutional on their face, or, in the alternative, were unconstitutional as applied to the Plaintiff. Specifically, Hedges alleged that Section 7 of the Original Policy violated her First Amendment rights of freedom of speech and association. In addition, she requested an injunction prohibiting the Defendants from enforcing the Original Policy so that she would be allowed to distribute Issues and Answers pursuant to the time, place, and manner restrictions contained in the Original Policy. The Complaint also sought money damages.

 A few days later, Plaintiff moved for a temporary restraining order to enjoin the Defendants from enforcing the Original Policy's prohibition on distributing material "of a religious nature." We denied Plaintiff's motion, but ordered expedited discovery. The Plaintiff filed a motion for a preliminary injunction, which also sought to enjoin the enforcement of Section 7 of the Original Policy. At a two-day hearing on the motion, we heard testimony and the arguments of counsel.

 B. Hedges I

 In an opinion of December 21, 1990 (Hedges I), we granted Plaintiff's Motion for a Preliminary Injunction. *fn3" In particular, we found that Megan Hedges had demonstrated that she would suffer irreparable injury absent injunctive relief and that she had a very strong probability of success in demonstrating that her distribution of Issues and Answers did not violate Section 4 of the District's policy. *fn4" Hedges I, Mem. Op. at 23, 12. We also examined her chances of successfully challenging Section 7 and found that, although the Defendants probably could demonstrate a compelling state interest in prohibiting the distribution of some religious materials, the policy's blanket prohibition on all religious material was unconstitutionally overbroad. Id. at 20, 22. In reaching this conclusion, we employed a public forum analysis and made the preliminary -- but what we now believe to be mistaken -- determination that the Defendants had abandoned their earlier position that the school was a closed forum.

 C. New Policy

 In response to our opinion in Hedges I, the School District promulgated a new regulation (effective January 7, 1991). This policy, which was entitled "Interim Distribution Policy" ("New Policy"), reads (with emphasis added):


 It is beneficial to the educational mission of the school for junior high school students to express their own views concerning a wide variety of topics and issues and share them with other students in the school, even when these views may by unpopular or controversial. The student's right to express their own views in the school, however, are not coextensive with the rights of adults or even children in other settings and must be exercised in light of the special characteristics of the school environment. The school has the duty to insure that the manner in which these views are expressed and the views themselves do not conflict with the basic educational mission of the school. Therefore, student expression which may be disruptive of the orderly operation of the school or school activities, which violates the rights of others, which is socially inappropriate or inappropriate due to the maturity level of the students, or which expresses religious beliefs or points of view that students would reasonably believe to be sponsored, endorsed or given official imprimatur by the school will not be permitted.


 When any student or students, who as an individual or a group, seek to distribute more than 10 copies of the same written material on one or more days in the school or on school grounds, they must comply with the following procedures:

 1. At least 24 hours prior to any distribution of material, the student shall notify the principal of his/her intent to distribute.

 2. Material shall be distributed between 7:15 a.m. and 7:45 a.m. and 3:15 p.m. and 3:45 p.m. from a table to be set up by the school for such purposes. The table shall be located at or near the main entrance of the building. No more than two students distributing the same material shall be seated at the table.

 3. Only the same material may be distributed during morning hours or afternoon hours. Priority for distribution will be determined on a first come, first served basis.

 4. Distribution must be done in an orderly and peaceful manner. Distribution which is coercive so as to affect the free exercise of any person's right to accept or reject any offered material shall be prohibited.

 5. The distribution shall be conducted in a manner which does not cause additional work for school personnel. Therefore, students shall be responsible for cleaning up any materials thrown on the floors on left on tables.

 6. Students shall not distribute written material:

 a. which will cause substantial disruption of the proper and orderly operation and discipline of the school or school activities;

 b. which violates the rights of others, including but not limited to material that is libelous, invades the privacy of others, infringes on a copyright;

 c. which is socially inappropriate or inappropriate due to the maturity level of the students, including but not limited to material that is obscene, pornographic, pervasively lewd and vulgar or contains indecent and vulgar language;

 d. which is primarily of a commercial nature including but not limited to all material that primarily seeks to advertise for sale products or services;

 e. which expresses religious beliefs or points of view that students would reasonably believe to be sponsored, endorsed or given official imprimatur by the school including but not limited to

 (1) religious objects of worship [sic], prayers, tracts, commentaries, Bibles, scriptures, and religious literature of a particular religious faith or organization which promulgate the teaches [sic] of the faith or organization whether in its original form or recopied in whole or part by the students;

 (2) any religious material which represents an effort to proselytize other students; and

 (3) any religious material whose format would lead students to believe that the material is sponsored or endorsed by the school.

 7. Because non-school sponsored organizations and non-students are prohibited from distributing material in schools or on school grounds, students are also prohibited from distributing written material which is primarily prepared by non-students or which concerns the activities, or meetings of a non-school sponsored organization.

 8. If a student is prevented from distributing written material on the grounds that he/she violated this policy, the student may appeal the decision to the Superintendent by notifying the Principal. The Superintendent or his designee shall render a decision within 24 hours. The student may appeal the Superintendent's decision to the Board of Education by notifying the Principal or Superintendent. The Board or a committee of the Board shall meet to review the Superintendent's decision within three days of the Superintendent's decision and render a decision. If the committee of the Board makes the decision, the full Board shall review the decision of the committee at its next regularly scheduled Board meeting and issue a decision. In the event the Superintendent, Board committee, or Board fails to make a decision in the time required, the student may resume distribution and continue to distribute the material until a decision is made.

 On January 8, 1991, Megan Hedges, pursuant to the New Policy, requested permission of Defendants to distribute Issues and Answers as well as copies of a "position paper" prepared by Megan and her family, which quotes the First Amendment and a speech given by President Lincoln referring to God, and which states "I Believe in God, Won't You?" Principal Golden refused to permit the distribution of more than ten copies of Issues and Answers,5 but allowed the distribution of the position paper. Pursuant to the New Policy only two students were allowed to sit behind the distribution table. (Am. Compl. PP 23, 25, 29, 30.)

 On February 21, 1991, Megan Hedges sought permission under the New Policy to distribute a flyer to fellow students advertising an activity, known as "Operation Dessert Shield," to be held at the Wauconda Evangelical Free Church. The activity was a campaign to send postcards to service men and women in the Persian Gulf. The Operation Dessert Shield flyer also mentioned other activities such as floor hockey, volleyball, a movie, and ice cream. The flyer contained no religious content, aside from the fact the activity was to be held at a local church. (Am. Compl. PP 29-31.) On February 22, 1991, Principal Golden advised Megan Hedges that distribution of the flyer was prohibited under the new rules. *fn6" (Am. Compl. P 32.)

 D. The Amended Complaint

 On March 4, 1991, Megan Hedges filed an amended complaint that added her brother Keith Hedges and a schoolmate, Amy Lewis, as complainants. In addition to these two students, the Amended Complaint sought to add a class of the approximately 300 students of Wauconda Junior High School; thus, this action was newly asserted as a class action. *fn7" This Amended Complaint requested declaratory relief, injunctive relief, and damages pursuant to 42 U.S.C. ยงยง 1983 and 1988, for the deprivation of rights under the Constitution of the United States, and pursuant to the Illinois Constitution. The Wauconda Community School District, Superintendent Dick, and Principal Golden were named as Defendants. Both Superintendent Dick and Principal Golden were named individually and in their official capacities.

 The Amended Complaint asserted that the New Policy (1) was an impermissible prior restraint; (2) was void for vagueness; (3) was overbroad and not justified by a compelling state interest; (4) gave school authorities unfettered discretion and permitted unequal enforcement; (5) constituted "merely a content based tool of discrimination specifically designed at banning all forms of religious speech"; (6) contained unconstitutional restrictions on time, place, and manner of distribution; (7) improperly limited the distribution of nonreligious literature; and (8) banned all religious literature in direct violation of the students' constitutional rights of freedom of religion. (Am. Compl. P 33.) Moreover, it alleged that the Original Policy, *fn8" ...

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