622 F.2d 1200 (4th Cir. 1980), 78-1590, Williams v. Spencer

Docket Nº:78-1590.
Citation:622 F.2d 1200
Party Name:Gregory J. WILLIAMS, Individually and by his mother, Andrea M. Williams, and in his capacity as co-editor of the
Case Date:June 12, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1200

622 F.2d 1200 (4th Cir. 1980)

Gregory J. WILLIAMS, Individually and by his mother, Andrea

M. Williams, and in his capacity as co-editor of the "Joint

Effort"; and Mark I. Gutstein, Individually and by his

father, Martin Gutstein, and in his capacity as co-editor of

the "Joint Effort", Appellants,

v.

Elizabeth SPENCER; Herbert Benington; Blair Hewing; Verna

Fletcher; Marian Greenblatt; Roscoe Nix; Dr. Daryl Shaw,

Individually and in their official capacity as Members

constituting the Montgomery County Board of Education; and

Dr. Charles M. Bernardo, Individually and in his capacity as

Superintendent of Montgomery County Public Schools; and Dr.

George B. Thomas, Individually and in his capacity as Area

II Assistant Superintendent of Montgomery County Public

Schools; and Dr. Thomas P. Marshall, Individually and in his

capacity as Principal of Springbrook High School; and Austin

Patterson, Individually and in his capacity as

Administrative Assistant and/or Building Monitor,

Springbrook High School, Appellees.

No. 78-1590.

United States Court of Appeals, Fourth Circuit

June 12, 1980

        Argued May 9, 1979.

Page 1201

[Copyrighted Material Omitted]

Page 1202

        Michael D. Simpson, Student Press Law Center, Washington, D. C. (Michael S. Shelton, Cohen, Abeloff & Staples, Richmond, Va., on brief), for appellants.

        Paul V. McCormick, Rockville, Md., for appellees.

        Before FIELD, Senior Circuit Judge, and WIDENER and HALL, Circuit Judges.

        WIDENER, Circuit Judge:

        Gregory J. Williams and Mark I. Gutstein, students at the time of filing this action at Springbrook High School within the Montgomery County, Maryland school district, brought suit seeking declaratory and injunctive relief, damages, and attorneys' fees against the Montgomery County Board of Education, the superintendent of schools, an area assistant superintendent, a school principal, and a building monitor. They claimed an alleged interference with their First Amendment rights, and sought an order enjoining the school authorities from restraining on school property the distribution of their non-school sponsored publication, the Joint Effort, Issue 2, and from enforcing the Publication Guidelines of Montgomery County. From a judgment in favor of the defendants, plaintiffs appeal. We affirm.

        During the 1976-77 school term, the plaintiffs published and distributed the first issue of the Joint Effort, a self-styled underground newspaper designed as an alternative for student expression. This issue was distributed on school grounds with the express permission of the principal.

        Following the success of that first issue, the plaintiffs published a second issue of the paper the following school year. The second issue contained various literary contributions, cartoons, and advertisements.

        The plaintiffs printed approximately 350 copies of the Joint Effort, and acquired advance approval of the school officials for the distribution of the paper on February 17, 1978. The plaintiffs were not, however, required to seek prepublication or predistribution

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approval of the contents of the publication. In fact, the school officials were not even aware of the contents of the publication prior to the commencement of distribution.

        Ten to twenty minutes after the sale of the paper began, the building monitor, Mr. Austin Patterson, halted the sale of the paper, confiscated the remaining copies, and took them to the school principal, Dr. Thomas P. Marshall. Patterson was the subject of a cartoon on the back cover of the paper that depicted him in cowboy clothing and speaking in dialect. 1 The students had distributed approximately eighty copies of the paper before the distribution was halted.

        Marshall upheld Patterson's seizure of the paper and banned any further distribution of Issue 2 on school property. The principal did, however, return the confiscated papers to the plaintiffs at the conclusion of the same day on which the papers were confiscated. The ban on distribution applied only to distribution on school property.

        As required by the Student Rights and Responsibilities Policy (S.R.R.P.) § IVC-2(d); 2 the school principal, within two school days of halting distribution, stated in writing his reasons for the action. 3 In his letter, Marshall stated:

        1. A copy of the "Joint Effort" was reviewed and the publication was found to be in violation of Section 4C, titled "Publications." The specific violation is under C-2(c)(2). A member of the staff was depicted in derogatory terms with clear indications of racial overtones.

        2. A second violation occurs in the promotion of drug paraphernalia. This is a violation of Section 2-C(c)(5), which prohibits the distribution of material which encourages actions which endanger the health and safety of students.

        The first reason referred to the cartoon depicting the building monitor in western clothing. The second reason for halting the distribution of the Joint Effort referred to an advertisement for the Earthworks Headshop, a store that specializes in the sale of drug paraphernalia. The advertisement primarily promoted the sale of a waterpipe used to smoke marijuana and hashish. 4 The ad also advertised paraphernalia used in connection with cocaine.

        Following the principal's decision to ban any further distribution of that issue of the Joint Effort, the students followed the appeals procedure provided for in S.R.R.P. § XIII Due Process Appeal of the Decision of the Principal. The students first appealed to the area assistant superintendent, Dr. George B. Thomas, and obtained an informal hearing on March 15, 1978. In an undated memorandum, but issued apparently within the five school days called for in S.R.R.P. § XIIIC-3(c), Thomas upheld the decision of the principal.

        The students then appealed to the superintendent of schools, Dr. Charles M. Bernardo, who rendered his decision in writing on April 14, 1978, also within the time limit provided for in S.R.R.P. § XIII. Bernardo supported the decision of the principal and upheld the ban on further distribution on school property of that issue of the Joint

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Effort. The superintendent expressly noted that the ban did not apply to any future issue of the publication that did not violate the guidelines. 5

        Following their unsuccessful administrative appeals, the students filed this suit against...

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