490 F.2d 601 (7th Cir. 1973), 72-2030, Jacobs v. Board of School Com'rs

Docket Nº:72-2030.
Citation:490 F.2d 601
Party Name:Jeff JACOBS et al., Plaintiffs-Appellees, v. The BOARD OF SCHOOL COMMISSIONERS, etc., et al., Defendants-Appellants.
Case Date:December 14, 1973
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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490 F.2d 601 (7th Cir. 1973)

Jeff JACOBS et al., Plaintiffs-Appellees,


The BOARD OF SCHOOL COMMISSIONERS, etc., et al., Defendants-Appellants.

No. 72-2030.

United States Court of Appeals, Seventh Circuit.

December 14, 1973

Argued Sept. 19, 1973.

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[Copyrighted Material Omitted]

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Lawrence McTurnan, Lila J. Young, Indianapolis, Ind., for defendants-appellants.

Craig Eldon Pinkus, Ronald E. Elberger, Indianapolis, Ind., for plaintiffs-appellees.

Before FAIRCHILD and CUMMINGS, Circuit Judges, and CHRISTENSEN, [*] Senior District Judge.

FAIRCHILD, Circuit Judge.

Defendants are officials of the Indianapolis school system. They appeal from a judgment enjoining the enforcement of certain rules governing the distribution by students of communicative written materials within the Indianapolis public school buildings and upon the grounds of such buildings. The named plaintiffs were or had been high school students when the action was started. They challenged defendants' suppression of an unofficial student newspaper, entitled the Corn Cob Curtain, in the publication and distribution of which plaintiffs had participated. The relevant rules of the Board were amended while the action was pending. The decision and judgment appealed from are reported, Jacobs v. Board of School Com'rs of City of Indianapolis, 349 F.Supp. 605 (S.D.Ind., 1972).

1. Refusal to appoint a guardian ad litem.

Plaintiffs were minors, represented by counsel. They alleged that activities of defendants violated their first and fourteenth amendment rights. They sued on behalf of themselves and all other high school students under defendants' jurisdiction. They primarily sought injunctive relief except that they also prayed for $150 compensatory damages and nominal or other punitive damages. Except for the prayer for damages in modest amount, plaintiffs won.

The district court denied defendants' petition for appointment of a guardian ad litem. Under the present circumstances, it is doubtful that defendants have a sufficient interest to raise this point on appeal. There is little reason to suppose that defendants would be exposed to any risk as a result of a claim that plaintiffs or class members are not bound by the judgment because there was no personal representative, next friend, or guardian ad litem. In Roberts v. Ohio Casualty Insurance Company, 256 F.2d 35 (5th Cir., 1958), relied on by defendants, and where a judgment was reversed for failure to appoint, it was the unrepresented minor who sought reversal. Nevertheless, defendants argue that the judgment should be reversed on this ground.

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Rule 17(c), F.R.Civ.P., provides in part: 'The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.'

Defendants apparently concede that neither the appointment of a guardian ad litem nor a protective order in lieu thereof is mandatory, and neither is required if the court considers the matter and makes a judicial determination that the infant is protected without a guardian. Roberts, supra, p. 39. See Till v. Hartford Accident & Indemnity Co., 124 F.2d 405, 408 (10th Cir., 1941); Westcott v. United States Fidelity & Guaranty Co., 158 F.2d 20, 22 (4th Cir., 1946).

Here the question was argued and considered. We do not agree with defendants that the court's emphasis, in its oral ruling, on the fact that constitutional issues were presented, and that substantial monetary recovery was not sought, demonstrates a failure to decide the appropriate question. Moreover, there is nothing in the record which indicates that the minors were represented inadequately or that any party was prejudiced by the absence of a guardian ad litem. See Till and Westcott, supra, and Rutland v. Sikes, 203 F.Supp. 276 (E.D.S.C., 1962), aff'd on other grounds, 311 F.2d 538 (4 Cir.), cert. denied 374 U.S. 830, 83 S.Ct. 1871, 10 L.Ed.2d 1053.

2. The Constitutionality of the Board's Regulations.

During the 1971-1972 public school term, five issues of the Corn Cob Curtain were published. They contained letters, articles about politics, education, student affairs, religion, and American history, music, movie, and book reviews, poetry, and cartoons. The first four issues were distributed in Indianapolis high schools. At the time the fifth issue was ready for distribution, school authorities notified the student population that school board rules prohibit sales or solicitations on school grounds without the express prior approval of the General Superintendent. After conferring with various school officials, the named plaintiffs were informed that the Corn Cob Curtain could no longer be distributed because it contained obscene materials. Appellees refrained from distributing the fifth issue pending resolution of these issues in the courts.

At the time of the above events, Sections 11.05 and 11.06 of the Board's rules prohibited the sale or distribution of literature in the public schools without express prior approval of the General Superintendent. After the district judge stated his belief that these rules were unconstitutional prior restraints under Fujishima v. Board of Education, 460 F.2d 1355 (7th Cir., 1972), the defendants amended the rules to their present form. The district court held that the amended rules were unconstitutional.

The amended rules involved are set forth at 349 F.Supp. 607-609. Rule 11.05 consists of a series of numbered items or paragraphs, designated in the district court judgment as provisos. We adopt that term, and proceed to consider the arguments made by defendants with respect to them.

(a) Amended Rule 11.05, Proviso

Reading provisos 1.1.1. and together, they provide:

'No student shall distribute in any school any literature that is . . . 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.'

The district court held that this rule was both vague and overbroad. We agree.

It is well established that a criminal statute is void for vagueness if its prohibitions are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)

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; United States v. Dellinger, 472 F.2d 340, 355 (7th Cir., 1972), cert. denied 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706. Vague laws are constitutionally offensive for several reasons:

'First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute 'abuts upon sensitive areas of basic First Amendment freedoms,' it 'operates to inhibit the exercise of (those) freedoms.' Uncertain meanings inevitably lead citizens to "steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked." Grayned, supra, 408 U.S. at 108-109, 92 S.Ct. at 2299, footnotes omitted.

Here, there is no criminal statute before us. Nonetheless, a student who violates amended Rule 11.05 is subject to suspension or expulsion or other disciplinary action. Proviso 1.61. We conclude that the penalties for violation are sufficiently grievous to mandate careful scrutiny for vagueness. See generally Baggett v. Bullitt, 377 U.S. 360, 374, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). We note the substantial danger of inadequate warnings to students, of arbitrary enforcement by teachers and principals, and of inhibition of full exercise of students' first amendment rights.

We think that proviso is vague in defining the consequences which will make a distribution of literature unlawful. Those consequences are articulated as 'a significant disruption of the normal educational processes, functions, or purposes in any of the Indianapolis schools, or injury to others.' Is decorum in the lunchroom a 'normal educational . . . purpose'? If an article sparks strident discussion there, is the latter a 'disruption'? When does disruption become 'significant'? The phrase 'injury to others' is also vague. Does it mean only physical harm? Does it include hurt feelings and impairment of reputation by derogatory criticism, short of defamation, since libelous material is already covered by proviso

Defendants argue unpersuasively that proviso is not over-vague because of its similarity to the text of the standard by which the Supreme Court tested a precise regulation against wearing armbands in Tinker v. Des Moines School Dist., 393 U.S. 503, 514, 89 S.Ct. 733, 21 L.Ed.2d 731. 1 It does not at all follow that the phrasing of a constitutional standard by which to decide whether a regulation infringes upon rights protected by the first amendment is sufficiently specific in a regulation to convey notice to students or people in general of what is prohibited. 2

Proviso is also unconstitutionally overbroad. In United States v. Dellinger, supra, 472 F.2d at 357, this court stated: 'The doctrine of overbreadth applies when a statute lends itself to a substantial number of impermissible applications, such that it is capable of deterring protected conduct,

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when the area affected by the...

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