Sullivan v. Houston Independent School District

• Decision Date: 17 November 1969
• Docket Number: Civ. A. No. 69-H-266.
• Citation: 307 F. Supp. 1328
• Parties: Dan SULLIVAN, by next Friend Daniel H. Sullivan, Michael Fischer, by next Friend, George David Fischer, et al., Plaintiffs, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, the Board of Trustees of the Houston Independent School District, the Superintendent of the Houston Independent School District and Mr. Coy P. Stewart, Principal of Sharpstown High School, Defendants.
• Court: U.S. District Court — Southern District of Texas

307 F. Supp. 1328

Dan SULLIVAN, by next Friend Daniel H. Sullivan, Michael Fischer, by next Friend, George David Fischer, et al., Plaintiffs, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, the Board of Trustees of the Houston Independent School District, the Superintendent of the Houston Independent School District and Mr. Coy P. Stewart, Principal of Sharpstown High School, Defendants.

Civ. A. No. 69-H-266.

United States District Court S. D. Texas, Houston Division.

November 17, 1969.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Dixie, Wolf & Hall, Robert E. Hall, Houston, Tex., for plaintiffs.

Reynolds, White, Allen & Cook, Grant Cook, Houston, Tex., for defendants.

MEMORANDUM OPINION

SEALS, District Judge.

This action was instituted on behalf of two Houston high school students who were expelled from Sharpstown Junior/Senior High School for the remainder of the 1968-1969 term because of their involvement in the production and distribution of a "newspaper" called the Pflashlyte (see appendix A.) which criticized school officials. The complaint was filed pursuant to 42 U.S.C.A. § 1983 and 28 U.S.C.A. § 1343(3) and it prayed for an injunctive order reinstating the two students and also for declaratory and injunctive relief in an attack against the regulations of the Houston Independent School District pursuant to the Declaratory Judgment Act, 28 U.S. C.A. § 2201, and Rule 23 of the Federal Rules of Civil Procedure governing class actions.

I.

Sharpstown Junior/Senior High School is one of Houston's newest schools having opened only a year ago. Sharpstown is a large school with age levels varying from the seventh to the twelfth grade. This first year for Sharpstown was also the first experience for Mr. Coy P. Stewart as principal of a senior high school; he had just completed three years as principal of McReynolds Junior High when Sharpstown opened.

Dan Sullivan and Mike Fischer were seniors at Sharpstown during this first year—the 1968-1969 school term. Dan had attended Bellaire High School the previous year and Mike had gone to Lee High School. Both were "B" students. Their conduct records reflect a few minor infractions but neither student appears to have been a discipline problem. In fact, their conduct grade was "good." Their school records and their actions before this court point to the conclusion that Dan and Mike are rather typical young American men of high moral character.

After their first several months at Sharpstown, Dan and Mike along with some other students became concerned with the absence of any express school regulations governing student conduct. The complaint was, in essence, that a student never knew when he was violating "regulations" since no rules had ever been written down and distributed. Dan, for instance, was told that wearing a neckerchief around his neck violated "school regulations." Confusion also existed concerning the use of a park across from the school before classes began in the morning. Sometimes it was prohibited and sometimes it was not.

Concern for this problem led to the organization of a "rally" after school one day in a nearby park. Students and teachers were present and they all sat on the grass and listened to speeches by students who used the chance to air some grievances. The discussion was interrupted by the physical interference of certain Sharpstown High athletic coaches who threw books around the park, ripped up students' notebooks and accused students of being Communists and Fascists.

There were other incidents of harassment by gym coaches which added to the list of student complaints. On one occasion, Dan Sullivan was called into a coach's office and subjected to strong verbal abuse. When Dan stepped aside as someone entered the office door so that he had to lean against one of the coach's desks, the coach ordered him to get off that desk or he would get his "block knocked off."

In addition, it appears that some of the students in Mike Fischer's gym class who attended the rally were given "grade cuts." Mike's gym instructor later informed him that because of the present lawsuit Mike would receive an "F" in the course if the instructor could "get away with it."

After the incident at the "rally," some of the students decided to wear small American flags in their shirt lapels as a show of patriotism. Dan Sullivan had called the Houston office of the Federal Bureau of Investigation to ask if this was an acceptable way to display the flag and upon being assured that it was proper, he wore a flag to school. Dan was informed by a coach to remove the flag on penalty of suspension from school. The flag, the coach said, "was disruptive."

Another incident concerned solicitations for various fund-raising projects during school hours. Dan, Mike and a friend named Larry Craven approached Mr. Stewart about sponsoring a Red Cross drive for the starving people of Biafra. Dan had called the American Red Cross and they had expressed enthusiasm for the project. Mr. Stewart told the boys that such a program could not be allowed because it was explicitedly prohibited by the downtown office to have any kind of solicitation from students during school time. The boys suggested small unobtrusive cans with slots to be placed on lunch tables. Stewart said this too was against "regulations." Dan later called the downtown office and was told that it was up to the principal to decide which fund drives should be allowed within the school.

Several weeks later, Mr. Stewart announced that as part of the senior project the school was to have a fund drive to collect $500.00 for the purchase of tropical plants, to be placed in a large planter box. Each student was expected to contribute twenty-five cents. Dan was asked by his physics teacher to make his contribution, not only during class time, but while an exam was in progress. When he refused to contribute saying it seemed somewhat hypocritical, Dan was lectured by the teacher and was told that his mind was being taken over by Communists.

Some time after these incidents, Mike and Dan decided they would put together a "newspaper" to voice their dissatisfactions and beliefs. Both were acquainted with one Walter Spinks who had attended Lee High School the year before and was then a freshman at the University of Houston. Spinks said it would be possible to have the printing done at the University's print shop. Only campus-approved organizations had access to the print shop but Spinks knew some people who were members of the Students for a Democratic Society (SDS), which was a University approved organization, who would let them use the SDS name on a University work order so that the campus print shop would do the printing.

Dan drafted the first "newspaper" which was more of a short introductory issue for the forthcoming first edition of the Pflashlyte; it set out the aims and goals of the editors. The boys took the stencil and money for the printing to the University of Houston and while there Mike and Dan attended a meeting of the SDS not only out of curiosity but also to be sure the printing would be done. The meeting was held in the World Affairs room of the student center and Mike and Dan soon found that SDS was very much against their beliefs. They attended three other meetings but only to insure that their "newspaper" would be printed.

When the copies of the introductory issue were received from the printer, the boys found that the letters SDS had been printed at the bottom of each page. Since they wanted no connection with this organization, they cut off the bottom portion of each of the 125 sheets so as to remove the SDS initials.

The stencil for the second "newspaper", the first one bearing the name Pflashlyte, was delivered to the printer soon after the first one. The boys were able to pick up these copies the day after they received the copies of the first issue and so only a few copies of the "introductory" edition were ever distributed. When the second edition was finished Mike and Dan found that it had been printed on both sides of legal size paper instead of on two sheets. They had ordered 2,000 sheets thinking they would get 1,000 copies but now they had 2,000 copies. Also, the name "Students for a Democratic Society" was printed on the back side in a position high enough on the page so that it could not be cut off without removing a portion of the printing on the front side. On the third edition, the letters SDS were in the middle of the reverse side.

The second edition was written rather hurriedly and since the boys wanted to try to produce something with a higher standard of quality, they spent more time on the third edition. Several books on constitutional law and American government were obtained from a local public library and Mike and Dan included research from these books in their "newspaper." One such book was Mr. Justice Douglas' The Living Bill of Rights. Others included a classroom textbook entitled American Government by Cloudner; the Bill of Rights Reader by Konvitz; and a third called Leading Constitutional Cases. Their research efforts were in the evenings and were not part of any school courses.

Mike and Dan began distribution of the introductory paper on February 27, 1969 and then continued on the 28th. The second edition was ready by the 28th so the students' efforts were directed at distributing it on that day, which was a Friday, and then again during the early part of the following week. Several other students helped Mike and Dan distribute the "newspaper" and they were instructed to not hand out the paper on school grounds or during school hours. They were also asked by Mike and Dan to tell students not to take the paper into the school with them but if they had to do so, to keep it in a notebook so that it would be out of sight. Distribution began in Landsdale Park just across the street from Sharpstown High. As students passed by on their way to classes they were given...