M.A.L. ex rel. M.L. v. Kinsland, 07-1409.

• Citation: 543 F.3d 841
• Decision Date: 07 October 2008
• Docket Number: No. 07-1409.,07-1409.
• Parties: M.A.L., a minor child, by and through his parents and next friends, M.L. and S.A., Plaintiff-Appellee, v. Stephen KINSLAND, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

543 F.3d 841

M.A.L., a minor child, by and through his parents and next friends, M.L. and S.A., Plaintiff-Appellee, v. Stephen KINSLAND, Defendant-Appellant.

No. 07-1409.

United States Court of Appeals, Sixth Circuit.

Argued: March 13, 2008.

Decided and Filed: October 7, 2008.

ARGUED: Roy H. Henley, Thrun Law Firm, East Lansing, Michigan, for Appellant. Byron J. Babione, Alliance Defense Fund, Scottsdale, Arizona, for Appellee. ON BRIEF: Roy H. Henley, Kirk C. Herald, Martha J. Marcero, Thrun Law Firm, East Lansing, Michigan, for Appellant. Byron J. Babione, Benjamin W. Bull, Delia B. van Loenen, Alliance Defense Fund, Scottsdale, Arizona, Steven M. Jentzen, Steven M. Jentzen, P.C., Ypsilanti, Michigan, for Appellee. Steven W. Fitschen, National Legal Foundation, Virginia Beach, Virginia, Francisco M. Negron, Jr.,

National School Board Association, Alexandria, Virginia, for Amici Curiae.

Before: KEITH, DAUGHTREY, and ROGERS, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

This case presents the question of whether it is constitutional for a public middle school to regulate the time, place, and manner of a student's speech by preventing him from handing out leaflets in school hallways between classes and instead allowing him to post his leaflets on hallway bulletin boards and to distribute them during lunch hours from a cafeteria table. The district court held that such a regulation of student speech is unconstitutional absent a showing that the speech is likely to cause a material and substantial interference with the requirements of appropriate discipline in the operation of the school, citing the Supreme Court's decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). The district court permanently enjoined enforcement of Jefferson Middle School's distribution policy and its prohibition on the student's hallway distribution. The court also awarded the student one dollar in nominal damages. For the reasons that follow, we reverse the district court's entry of a permanent injunction and its award of nominal damages.

I.

Michael, a 14-year-old, eighth-grade student,¹ participated in the nationwide "3rd Annual Pro-Life Day of Silent Solidarity" organized by the national group "Stand True." On the designated day, middle and high school students across the country express their views against abortion by wearing red armbands, distributing literature detailing various facts about abortion, and remaining silent throughout the school day with red tape over their mouths to symbolize that they speak for unborn children. Michael arrived at school on October 24, 2006, with red duct tape over his mouth and wrists, wearing a sweatshirt that said "Pray to End Abortion." Before school started, Michael also distributed leaflets containing abortion statistics to those who approached him.

During Michael's first-hour class, his teacher, Gary Boudrie, sent him to the principal's office, stating that Michael's sweatshirt and tape were causing a disruption. Because the principal was not yet in that morning, Michael was sent to Andrea Werner, a guidance counselor. After speaking with the School District's Superintendent, Timothy Fitzpatrick, Mrs. Werner told Michael that he must remove the duct tape and either turn his sweatshirt inside-out, take it off, or wear a different shirt. According to Michael, Mrs. Werner explained to him that his message was "political" and that the school "could speak about abstinence, but not about abortion, and that the school had to remain neutral and people couldn't take sides." Neither Mrs. Werner nor Mr. Boudrie discussed Michael's leaflets, and Michael eventually returned to class.

Michael claims that later that day, in the cafeteria, he wished to use the front pocket of his sweatshirt to carry his school binder so that he could use his hands to carry his saxophone to band class. Michael turned his sweatshirt right-side-out and began covering its "Pray to End Abortion" message with a piece of paper and tape. Mrs Werner saw Michael switching his sweatshirt right-side-out and sent him to the principal's office, where Principal Stephen Kinsland reiterated to Michael the previously issued sweatshirt directives.

While in Principal Kinsland's office Michael raised the issue of leaflet distribution. Principal Kinsland informed Michael that his leaflets had to be pre-approved before he could distribute them and that, because Michael's leaflets had not been approved, he could not distribute them that day. Kinsland testified that students typically ask his permission before posting or distributing literature, and that Michael had asked Kinsland earlier that year for permission to post flyers about forming a student Christian club and was granted permission. Michael testified, however, that although he had asked for permission to post materials in the past, he did not think he needed permission to distribute leaflets. No disciplinary action was taken against Michael on October 24, and Principal Kinsland spent part of the afternoon picking up leaflets from hallway floors and removing those that had been taped to drywall and appliances.

On January 24, 2007, Michael and his parents filed the instant lawsuit,² expressing an "urgent need" for injunctive and declaratory relief so that Michael could engage in a similar protest on January 31, 2007. Michael also sought damages "to vindicate his constitutional rights which were violated by Defendants." On January 29, 2007, the parties made the following stipulations regarding the January 31 protest:

1. Plaintiff cannot wear tape on his mouth.

2. Plaintiff may wear red tape on his wrists.

3. Plaintiff may wear a black hooded sweatshirt which says on the front, "Pray to End Abortion."

4. Jefferson School District retains the right to control the conduct if there are material and substantial disruptions or the reasonable forecast of such disruptions.

5. Plaintiff may engage in 1-3 until final judgment is entered by the Court.

6. For purposes of the equitable relief sought, Defendants are not taking the position that the literature Plaintiff seeks to distribute would cause a substantial disruption or a material interference with the normal operation of the school or school activities.

The parties did not reach agreement, however, on whether Michael would be allowed to distribute his leaflets in the school hallways.

In pertinent part, the school's distribution policy provides that

Students will have the right to distribute and possess in or on school premises, school buses, or at school sponsored activities any form of literature, including but not limited to newspapers, magazines, leaflets, and pamphlets. Students shall be responsible for the content of such materials. This right is, however, subject to limitation in accordance with standards of responsible journalism and in consideration of the rights and welfare of the entire student community. In order to ensure that the welfare and rights of the community are adequately protected, the following will apply in the case of any distribution of literature on school premises or at times students are under the jurisdiction of the school:

1. Any literature which a student wishes to distribute or possesses to distribute will first be submitted to the principal, or his/her designee, for approval. The principal may have up to three days to review the material before approving or disapproving. If disapproved, the principal shall state the reasons in writing.

. . .

3. The principal may deny approval to the distribution of any literature the content or distribution of which he/she reasonably determines:

a. Would cause a substantial disruption of or a material interference with the normal operation of the school or school activities.

b. Is potentially offensive to a substantial portion of the school community due to the depiction or description of sexual conduct, violence, morbidity or the use of language which is profane or obscene which is inappropriate for the school environment as judged by the standards of the school community.

c. Is libelous or which violates the rights of privacy of any person.

d. Is false or misleading or misrepresents facts.

e. Is demeaning to any race, religion, sex, or ethnic group.

f. Encourages violation of local, state or federal laws.

. . .

6. In the event the submitted publication is denied the privilege of distribution, the applicant may:

a. Appeal the decision of the principal within five (5) school days to the superintendent, who shall reply within five (5) school days.

b. Further appeal may be made to the Board of Education within five (5) school days. The Board shall provide a hearing within ten (10) days with the decision made at its next regular meeting.

7. Distribution is defined as giving out or division among a number of persons, sharing or parceling out, allotting, dispensing, apportioning, either by physically doing so or placing the material to be distributed in any public area so that another person may obtain the same either for a free [sic] or without charge.

8. If the principal gives his/her approval, he/she may designate a time and/or a place at which the distribution may take place. The distribution shall be orderly and the designated area for distribution shall be kept free of loosely scattered material.

Although the policy is not formally distributed to students, Principal Kinsland testified that he reads any amendments to the policy to the students at an assembly at the beginning of each school year.

Neither Michael nor his parents provided Michael's proposed leaflets to the school before filing suit on January 24, and Michael did not formally seek permission to distribute them on the 31st. The school nevertheless offered to allow Michael to post his leaflets on bulletin boards in the hallways and to distribute them in the cafeteria during lunch, reasoning that the school is...