discussion of the restrictions, we commented,
we are troubled by the possibility that these restrictions -- through the manner of distribution that they require -- could raise Establishment Clause problems with religious materials that by their format alone do not create any confusion regarding school sponsorship or endorsement. As both experts testified, the time, place, and manner of the distribution of materials is an ingredient in determining whether a student might believe that the school sponsored, endorsed, or lent its imprimatur to them. We believe that it is unreasonable for the school to design time, place, and manner restrictions that themselves create the Establishment Clause objection to religious materials that otherwise, e.g., through their format, would not give rise to Establishment Clause concerns. However, we are not presented with such a case, and although it causes us grave concern, we do not need to strike down the New Policy on this ground.
Hedges III, Mem. Op. at 27. As this passage indicates, we were bothered then by the nagging possibility that the time, place, and manner restrictions in Section B-2 actually create sponsorship problems where they might not otherwise exist.
After ruminating on this problem for over a year, we conclude that it is presented in our case. On further reflection, we believe that Issues and Answers by itself does not appear school sponsored and that even junior high students probably would not think that it was school sponsored if it were passed out to them by a student standing alone on the school stairs before classes begin. We find that in our case the physical characteristics of Issues and Answers plus the method of its dissemination, which was prescribed in Section B-2, are what combine to create the impression in young students that the publication is school endorsed.
The problem as we see it is that the New Policy requires that the distribution of materials be conducted within the school building, in particular in a room that is monitored by school personnel where students are required to assemble before classes begin. Moreover, the policy requires that the distributing student sit at a table near the door. The table adds a sense of authority to the distribution that it otherwise might not have. In addition, the presence of teachers in the room and the fact that students are compelled to be present in the room add up to a situation that provides the stamp of school authority where it otherwise might not exist. Thus, we now conclude that Issues and Answers was prohibited under Section B-6(e) as a result of the operation of the time, place, and manner restrictions. This result we believe is impermissible. Consequently, the New Policy's time, place, and manner restrictions are invalid.
3. Section B-7
For the reasons articulated in Hedges III, we continue to find that Section B-7's prohibition on the distribution of materials that concern "the activities, or meetings of a non-school sponsored organization" is reasonable. As we stated there,
First, the school is first and foremost concerned with its own activities and may reasonably wish to limit comment to the substance of those activities. Second, as Dr. Dick testified, the school is acting in loco parentis and as such may be concerned that its campus not be used to discuss the activities of outside organizations, the reputation and legitimacy for which it cannot vouch.
Hedges III, Mem. Op. at 24. We continue to believe that this justification is sufficient to support that portion of Section B-7.
We have changed our mind about Section B-7's prohibition on the distribution of material that is not primarily prepared by a student. Section B-7 states in pertinent part, "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. . . ." Upon further reflection, we think that it is unreasonable for the School District to conclude that its educational mission will be best served by excluding nonstudent prepared materials. While in school, students read materials prepared by such famous nonstudents as Homer, Shakespeare, and (if they are lucky) Lewis Carroll. They also prepare some materials themselves. Who does not remember burning the midnight oil to complete an essay due the next day? It is clear, therefore, that teachers have long believed that students learn by both reading the preparations of others and preparing some materials themselves. After this further reflection, we conclude that it is unreasonable, contrary to the school's educational mission, and downright arbitrary to prohibit students from distributing material that is prepared by others but that the distributor wishes to adopt as his or her own. Thus, we conclude that Section B-7's prohibition on nonstudent prepared materials must be struck from the New Policy.
As described in detail above, we amend our judgment as follows:
(1) the New Policy's requirement that only student-prepared material be distributed is unreasonable and consequently must be deleted;
(2) the New Policy's time, place, and manner restrictions are invalid because these restrictions to a significant degree cause the appearance of school sponsorship of religious materials and thus are unreasonable;
(3) the Plaintiffs are awarded ten dollars in damages.
We hereby vacate the final judgment entered on October 21, 1991, and enter a final and appealable judgment effective today.
PAUL E. PLUNKETT
UNITED STATES DISTRICT JUDGE
DATED: October 28, 1992