Nelson v. Moline School Dist. No. 40

• Decision Date: 25 October 1989
• Docket Number: No. 87-4143.,87-4143.
• Citation: 725 F. Supp. 965
• Parties: David NELSON, Katie Nelson, Matthew Rogerson and Lisa Ward, Plaintiffs, v. MOLINE SCHOOL DISTRICT NO. 40, Richard Hennegan, Superintendent of Moline School District, and Keith Schwab, Principal of Moline High School, Defendants.
• Court: U.S. District Court — Central District of Illinois

725 F. Supp. 965

David NELSON, Katie Nelson, Matthew Rogerson and Lisa Ward, Plaintiffs, v. MOLINE SCHOOL DISTRICT NO. 40, Richard Hennegan, Superintendent of Moline School District, and Keith Schwab, Principal of Moline High School, Defendants.

No. 87-4143.

United States District Court, C.D. Illinois.

September 19, 1989.

On Reserved Issues October 25, 1989.

Charles E. Hervas, Itasca, Ill., for plaintiffs.

Stanley B. Eisenhammer, Michael R. Grimm, Chicago, Ill., for defendants.

ORDER

MIHM, District Judge.

Plaintiffs brought this action for declaratory relief, injunctive relief and nominal damages pursuant to 42 U.S.C. §§ 1983 and 1988, alleging deprivation of their First Amendment rights. Pending before the Court are Cross-Motions for Summary Judgment. For the reasons stated below, Plaintiffs' Motion for Summary Judgment is denied to the extent it challenges the regulation in effect at the present time; Defendants' Motion for Summary Judgment is granted as to the existing regulation and reserved as to the previous regulation.

The Court recognizes the parties' concerns over this lawsuit as a whole. However, because another school year has begun, the Court felt it was necessary first to address the questions regarding the present regulation. The parties may rest assured that the balance of the Motions will be decided as quickly as possible.

BACKGROUND

At the time of the events discussed herein, the four Plaintiffs were students at Moline High School. Keith Schwab had been the school principal for four years, serving as the chief supervisory and administrative officer of the school building. Mary Foster was the associate school principal.

On October 19, 1987, Schwab was in Chicago attending a meeting, and Mary Foster was acting principal. On that day, three of the Plaintiffs passed out copies of a non-denominational religious publication entitled Issues and Answers in school hallways before classes began. According to one of the Plaintiffs, another student reported to a hall monitor that the paper was being distributed, and the monitor informed Foster. Foster called Plaintiff David Nelson into her office during the middle of the first class period, looked over the magazine and told him that it was her understanding that he could not distribute it at school.

The Plaintiffs made no further attempts to distribute additional copies of the publication until mid-November. No disciplinary action was taken against any of the Plaintiffs for the October 19 incident.

Subsequently, Foster informed Schwab about the incident and told him that she had asked David Nelson to stop distributing the paper. Schwab took no immediate action.

On November 18, 1987, Schwab announced over the school intercom the new school policy regarding distribution of fliers, announcements and papers. The policy provided that:

Students are not allowed to distribute fliers, announcements, or papers of any kind without approval by the school administration. If approved by the principal, handouts will be made available for students. Please check in the main office to leave any materials to be reviewed for approval.

The next day, Plaintiffs went to Schwab's office to discuss distribution of the new monthly Issues and Answers. Schwab looked at the only copy of Issues and Answers that the students had brought with them. He told them that he had no objection to the materials and that they could leave the material in his office for distribution. Plaintiff David Nelson replied that they only had one copy with them and would bring more the next day. Schwab then asked if they would like a written announcement for the student bulletin, and David Nelson replied that they would. Schwab told the students to write an announcement and he would make certain it was announced over the public address system. The students voiced no objection to this procedure.

However, the students never brought an announcement to be read or material to be distributed. According to one of the students, they decided not to leave the materials in the office because they were afraid not as many people would get copies; instead, the students personally distributed copies of Issues and Answers in the halls. The students were not disciplined for distributing these newspapers.

On November 24, 1987, Schwab announced a newly developed, written policy regarding distribution of non-school related materials. The policy provided:

Students seeking to distribute non-school materials to the student body shall provide a copy of the material to the principal or the administrator in charge if the principal is unavailable for review. The principal or administrator in charge will approve the distribution within two hours of receipt unless the material is libelous, invades the privacy of others, is obscene or pornographic, is pervasively indecent and vulgar, will cause a material and substantial disruption of the proper and orderly operation of the school or school activities, or advertises a product or services not permitted for use by minors under the law. If the material is approved, the students will be allowed to distribute such material at any entrance or exit to the school both before and after school and at a place near the cafeteria designated by the principal during all lunch periods.

Students shall not distribute materials in a manner which disrupts any school activity or blocks or impedes the safe flow of traffic within corridors and entrance ways of the school. Students who distribute such materials shall be responsible for cleaning up such materials thrown on the floors, in the school, or on the grounds outside the school. Additionally, such material may be left in the main office so that other students may obtain a copy during the school day.

Since the new policy was implemented, Plaintiffs have submitted copies of Issues and Answers to the office for approval each month. In each case the administrator in charge has reviewed and approved the issue presented, and the students have distributed copies at the designated times and locations. There is no evidence of anything disruptive in the distribution of Issues and Answers other than litter resulting from copies of Issues and Answers being tossed on the floor. Approximately 200 total copies have been distributed each month.

Plaintiffs filed a Complaint on December 14, 1987 alleging that the unwritten policy, the interim policy and the newly formulated policy all violate their First Amendment rights. In June 1989 Cross-Motions for Summary Judgment were filed to which responses and a reply were made. A hearing was held on August 25, 1989, at which time the parties were ordered to submit further pleadings regarding the school's policies which pre-dated the written policy now in effect. This order only concerns the existing policy; to the extent that the summary judgment Motions concern the prior policies, the Court reserves judgment.

The Defendants argue that this Court does not need to decide such broad issues as whether or under what circumstances a high school may prohibit distribution of a religious magazine in school, or whether other aspects of the school's policy regulating content on the basis of obscenity, libelousness, or other factors are proper. Rather, according to the Defendants, the only legal issue in dispute is whether the school's regulation as to the time, place and manner of the distribution of this particular magazine were so restrictive as to violate Plaintiffs' constitutional rights. Specifically, Defendants argue that Plaintiffs' Complaint only challenges the prohibition on distribution of the magazine to the student body between classes in the halls and classrooms of the high school during the school day.

Thus, Defendants claim that this Court must determine whether Moline High School's classrooms and halls (when classes are not in progress) are considered a public forum, a limited public forum, or a non-public forum with respect to distribution of non-school sponsored material. Depending upon the type of forum, the law regarding regulation of communication varies, as discussed in Perry Educational Association v. Perry Local Educators Association, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). Defendants argue that during a school day the classrooms and halls are either a non-public forum, in which distribution may be completely prohibited or severely restricted, or a limited public forum, in which reasonable time, place and manner regulations can be enforced. Thus, in either case, none of the Plaintiffs' constitutional rights were violated, according to Defendants. Defendants reject the proposition that the school's classrooms and halls are a public forum.

Plaintiffs argue that under Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), a forum analysis is inappropriate. Instead, students' First Amendment rights may only be limited in matters of curriculum (not involved in this case) and in student communication which "materially and substantially interferes with the requirements of appropriate discipline in the operation of the school."

Plaintiffs claim that the First Amendment offers broad protection for high school students in non-curriculum activities and communications. Because the existing policy at Moline High School amounts to a system of prior restraint and is not founded on any evidence of material disruption caused by the paper's distribution, Plaintiffs argue that the existing policy is unconstitutional.

In addition, Plaintiffs argue that the existing policy is both vague and overbroad. It neither identifies nor defines how the distribution of literary material would cause substantial or material disruption within the school, and it fails to identify any other compelling reason for imposing the current policy; in addition, the policy is not narrowly tailored to prevent a material and substantial disruption. Plaintiffs also claim that...