Jacobs v. Board of School Com'rs of City of Indianapolis, IP 72-C-263.

• Citation: 349 F. Supp. 605
• Decision Date: 19 October 1972
• Docket Number: No. IP 72-C-263.,IP 72-C-263.
• Parties: Jeff JACOBS et al., Plaintiffs, v. The BOARD OF SCHOOL COMMISSIONERS OF the CITY OF INDIANAPOLIS et al., Defendants.
• Court: U.S. District Court — Southern District of Indiana

349 F. Supp. 605

Jeff JACOBS et al., Plaintiffs, v. The BOARD OF SCHOOL COMMISSIONERS OF the CITY OF INDIANAPOLIS et al., Defendants.

No. IP 72-C-263.

United States District Court, S. D. Indiana, Indianapolis Division.

October 19, 1972.

Ronald E. Elberger, Craig E. Pinkus, and Richard G. Goetz, of Legal Services Organization, Indianapolis, Ind., for plaintiffs.

Lawrence McTurnan, of Bredell, Martin & McTurnan, Indianapolis, Ind., for defendants.

ENTRY ON MOTION FOR PERMANENT INJUNCTION

STECKLER, Chief Judge.

This action is before the Court on the plaintiffs' motion for, among other things, an order against the defendants enjoining said defendants, their agents, servants, and employees, and all those in active concert and participation with them, from continuing to suppress and prohibit the distribution of the Corn Cob Curtain. Jurisdiction is based under Title 42, United States Code, Section 1983 and Title 28, United States Code, Sections 1343, 2201 and 2202.

On August 24-25, 1972, an evidentiary hearing was conducted. Oral argument was heard on the motion for temporary restraining order and the collateral issues raised by Defendants' Petition for Appointment of Guardian Ad Litem or Next Friend for Plaintiffs and All Members of the Class They Purport to Represent, and Petition of Defendants for an Order Requiring Plaintiffs' Attorney to Produce Authority Under Which He Appears. The Court denied defendants' motion to assign guardian ad litem, and granted defendants' motion for plaintiffs' attorney to show authority. Plaintiffs' attorney filed a memorandum in response to defendants' motions; the Court found that the regulations governing the services to be rendered by the Legal Services Organization and the persons whom it is to represent was not a matter for this Court to determine or fix, but rather if the defendants had a complaint, this was a matter to be taken up with the funding authorities and the organized bar. The Court found that plaintiffs' attorneys could proceed with representation. See, Hernandez v. Stockton Bd. of Education, 6 Clearinghouse C.R. 172 (July 1972); State ex rel. Koch v. Vanderburgh Probate Court, 246 Ind. 139, 203 N.E.2d 525 (1965).

The parties by counsel met in conference with the Court on September 27, 1972, and the defendants presented Resolutions 1033 and 1034 having been adopted by the Board of School Commissioners of the City of Indianapolis to amend Rules 11.05 and 11.06 of the Rules of the Board of School Commissioners, i. e., the rules subject to complaint in this litigation. While these resolutions were under advisement for further consideration by the Court, the defendants filed Additional Paragraph of Answer with exhibits on October 12, 1972, with consent of plaintiffs; Exhibit A attached thereto replaced Resolution 1033 filed September 27, 1972, and Exhibit B was identical to Resolution 1034 filed September 27, 1972. Hereinafter Exhibits A and B filed October 12, 1972, amending School Board Rules 11.05 and 11.06, will be referred to as Rules 11.05 and 11.06.

Rules 11.05 and 11.06 subject to complaint in this litigation are as follows:

Rule 11.05 Exhibit A

1. General. The following rules shall govern the distribution of literature and other communicatory material (hereinafter collectively referred to as `literature') by students in the Indianapolis public school system (any of whom is hereinafter referred to as `a student') in or upon the School Board's public school buildings, structures and/or grounds (the term `school' being used, hereinafter, to signify any such building, structure or the grounds of any such building or structure).

1.1. Distribution of Certain Kinds of Literature Prohibited.

1.1.1. No student shall distribute in any school any literature that is —

1.1.1.1. obscene as to minors

1.1.1.2. libelous or

1.1.1.3. either by its content or by the manner of distribution itself, productive of, or likely to produce a significant disruption of the normal educational processes, functions or purposes in any of the Indianapolis schools, or injury to others.

1.1.1.4. not written by a student, teacher or other school employee; provided however, that advertisements which are not in conflict with other provisions herein, and are reasonably and necessarily connected to the student publication itself shall be permitted.

1.1.2. Literature other than literature of the kind described in Section 1.1.1. above, is hereinafter referred to as `distributable literature.'

1.2. Who May Distribute Distributable Literature.

Subject to the provisions of Section 1.3. below, distributable literature may be distributed by, and only by, any student, within any school in which the student is regularly enrolled.

1.3. Conditions Under Which Distributable Literature May Be Distributed.

1.3.1. No distributable literature shall be distributed by any student in any school —

1.3.1.1. while classes are being conducted in the school in which the distribution is to be made;

1.3.1.2. in any place other than a place designated by the principal of the school in which the distribution is to be made, which place shall be selected by the principal with a view toward insuring that the proposed distribution will be made without interference with other persons lawfully within the school;

1.3.1.3. in such a way that the place of distribution (or any other part of the school in which the distribution is made) becomes littered;

1.3.1.4. in such a way that any person within the school can reasonably be made to feel that the distributable literature is being `forced' upon him;

1.3.1.5. in immediate exchange for money or any other thing of value (or for an immediate promise of money or any other thing of value), whether the transaction is characterized as a sale of the distributable literature, as a contribution to finance the publication or distribution of the distributable literature, or as any other transaction whereunder money or any other thing of value (or a promise of either) immediately passes to or for the direct or indirect benefit of the student who is distributing the distributable literature; or

1.3.1.6. unless the name of every person or organization that shall have participated in the publication of the distributable literature is plainly written in the distributable literature itself.

1.4. Spirit in Which the Foregoing Regulations are to be Applied.

In the application of the foregoing regulations pertaining to the distribution of literature in the schools by students, principals and other school administrators shall take care to insure that the constitutional and other legal rights of students to express themselves freely shall not be infringed. The spirit in which the regulations shall be applied shall not be a repressive one, but shall combine a respect for the rights of students with an appropriate regard for the maintenance in the schools of the kind of environment that is necessary to the School Board's conduct of its public educational mission in the School City of Indianapolis.

1.5. Limitation of the Scope of the Foregoing Rules.

The foregoing rules define the conditions under which students will be permitted to distribute literature in the schools. Nothing in those rules is intended to be, or is, or shall be construed as, an indication that the School Board will permit, without its express prior consent, the distribution in any school of any literature or other article by any person who is not a student in the school where the literature is to be distributed.

1.6. Penalties for Violation and Student Rights of Review and Appeal.

1.6.1. For violation of any of the provisions of this Rule 11.05 a student may be suspended or expelled by the principal of the school where such violation occurs and the principal or any teacher of the school may take other disciplinary action which is reasonably desirable or necessary to help any student, to further school purposes, or to prevent any interference therewith.

1.6.2. In the event that suspension or expulsion is deemed necessary, the due process provision of public law 162 of the laws of the State of Indiana and the rules of this board adopted by Resolution #1030 shall apply.

1.7. Severability of Rule.

If any one or more sections, clauses or phrases of this Rule 11.05 shall be declared unconstitutional, such decision shall in no sense invalidate any other part of this act.

Rule 11.06 Exhibit B

No person, including students and organizations or corporations, other than the school corporation acting through its designated agents, or organizations of parents and teachers or students whose sole use of funds is for the benefit of the particular school in which they are organized or in attendance, may sell merchandise or material, collect money, or solicit funds or contributions from the students for any cause or commercial activity within any school or on its campus.

The Seventh Circuit has held that students may commence actions seeking relief for infringement of their constitutional rights. Fujishima v. Bd. of Education, 460 F.2d 1355 (7th Cir. 1972); Scoville v. Bd. of Education of Joliet Tp. H. S. Dist. 204, etc., Ill., 425 F.2d 10 (7th Cir. 1970); Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970).

In the instant case there can be no discomfort to strict constructionists who prefer their Constitution to be literal. No right is more clearly within the protection of the First Amendment, whose provisions Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), has now extended to the public school, than the freedom to distribute printed matter. Throughout our constitutional history, only three exceptions have been permitted to limit this freedom, and the exceptions themselves have been narrowly construed; these exceptions include obscenity, libel, and speech which constitutes a "clear and present danger." In the context of the public school, the Tinker decision d...