Burch v. Barker

• Citation: 861 F.2d 1149
• Decision Date: 18 November 1988
• Docket Number: No. 87-3612,87-3612
• Parties: , 50 Ed. Law Rep. 339 Alan BURCH, et al., Plaintiffs-Appellants, v. Brian H. BARKER, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1149

861 F.2d 1149

57 USLW 2329, 50 Ed. Law Rep. 339

Alan BURCH, et al., Plaintiffs-Appellants, v. Brian H. BARKER, et al., Defendants-Appellees.

No. 87-3612.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 9, 1987.

Decided Nov. 18, 1988.

Kenneth H. Davidson, Kirkland, Wash., for plaintiffs-appellants.

Philip A. Talmadge, Seattle, Wash., for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before GOODWIN, WRIGHT and SCHROEDER, Circuit Judges.

SCHROEDER, Circuit Judge:

I. OVERVIEW

In 1977, the Renton School District in Renton, Washington, adopted a policy requiring its high school students to submit to school officials for approval all student-written material before any such material could be distributed on school premises or at official school functions. The policy was directed at student writings that were not contained in official school publications.

On May 20, 1983, students at Lindbergh High School distributed copies of an unauthorized student-written newspaper called Bad Astra at a school-sponsored senior class barbecue on school grounds without submitting the material for predistribution review. In addition, a parent, the president of the Lindbergh High P.T.A., placed copies of the newspaper in faculty and staff mailboxes. The school principal reprimanded the students for violating the review policy, but did not find any particular passage or article objectionable.

The parents and the students filed this action in district court pursuant to 42 U.S.C. Sec. 1983 claiming that the predistribution review policy violated their right to freedom of speech guaranteed by the first and fourteenth amendments. The district court held that, with procedural safeguards not relevant to this appeal, the policy of prior review of student-written materials did not invade the students' first amendment rights. 651 F.Supp. 1149. The plaintiffs appeal to this court claiming that they are entitled to expungement from their records of their reprimands, and to declaratory and injunctive relief barring enforcement of policies requiring predistribution review of all non-school-sponsored student writing. The issue before us is thus whether the district court correctly held that the first amendment permitted the school to require prior review, for possible censorship of objectionable content, of all student-written, non-school-sponsored materials distributed on school grounds.

We review the district court's decision in light of the recent Supreme Court decision in Hazelwood Sch. Dist. v. Kuhlmeier, --- U.S. ----, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) ("Kuhlmeier "). In Kuhlmeier, the Supreme Court reaffirmed the principles laid down in Tinker v. Des Moines Ind. Community Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), that the first amendment protects the right of high school students to communicate with each other, and further, that school officials may interfere with such communication only in narrowly defined circumstances. The Court in Kuhlmeier held that a policy of prior review and possible censorship of student writing is justified when it is a part of educators' reasonable exercise of authority over school-sponsored publications. The Court drew a clear distinction between whether "the First Amendment requires a school to tolerate particular student speech," the issue addressed in Tinker, and "whether the First Amendment requires a school affirmatively to promote particular student speech," the issue addressed in Kuhlmeier. Kuhlmeier, 108 S.Ct. at 569. This case, unlike Kuhlmeier, concerns a policy aimed at curtailing communications among students, communications which no one could associate with school sponsorship or endorsement. We therefore hold this policy does violate the first amendment.

II. BACKGROUND

In 1983, five students at Lindbergh High School in Renton, Washington, wrote a four-page newspaper entitled Bad Astra. They did so at their own expense, off school property, and without the knowledge of school authorities. The content of Bad Astra included articles written by the five students and which were generally critical of school administration policies concerning student activities, student service card requirements and enforcement of student attendance. The newspaper also included a mock teacher evaluation poll, and poetry written by Stephen Crane, Edgar Lee Masters and Langston Hughes. The paper did not include any profanity, religious epithets or any material which could be considered obscene, defamatory or commercial. Students distributed approximately 350 copies of Bad Astra at a senior class barbecue; the president of the Lindbergh High School Parent Teacher Association, mother of one of the students, placed copies in school faculty and staff mailboxes.

The school principal censured the students for not submitting Bad Astra for predistribution review pursuant to existing school board policy. The principal placed letters of reprimand in the students' files, where they remain.

The five students, joined by their parents as guardians, commenced this action under 42 U.S.C. Secs. 1983, 1985 and 1988. They sought injunctive and declaratory relief holding the predistribution review policy unconstitutional under the first and fourteenth amendments, and asked that the students' reprimands be expunged from their records. The defendants included Brian Barker, Principal of Lindbergh High School, Gary Kohlwes, the school superintendent, and members of the school board of Renton School District No. 403.

The policy in effect when the students were reprimanded ("old policy") was adopted by the Renton School District in 1977 and required prior approval by school officials of any material written by students enrolled in the school and which students wished to distribute on school premises. The material had to be free from "libel, slander, obscurity (sic), personal attacks or incitement to illegal action(s)," and free from "unauthorized solicitation." In addition, student authors were required to be identified on all materials. The school principal was authorized to direct the manner of distribution so as not to "interfere with or disrupt the normal educational process."

After the students' unauthorized distribution of Bad Astra, but prior to this lawsuit, the school board decided to revise its predistribution review policy. The "new policy", which included an administrative review procedure, stated that prior approval was necessary for distribution of ten or more copies of written material. While the policy stated that distribution of materials would usually be allowed, the material in order to be approved had to be written by students currently enrolled in the school district, be free from advertisements for cigarettes, liquor, drugs or drug paraphernalia, and be distributed in a manner that would not materially and substantially interfere with the normal operation of the school.

In addition, under the new policy, principals were authorized to ban distribution if the expression was "inappropriate to the maturity level of the students" or was obscene, libelous, or invaded the privacy of others. Principals could also ban materials when there was evidence "which [would reasonably support] a judgment that significant or substantial disruption of the normal operation of the school" could result. The policy provided that such evidence could include expression criticizing school officials or advocating violation of school rules, or expression attacking or promoting discrimination against ethnic, religious, social or handicapped groups or females and males as a group.

For purposes of this appeal, the parties agree the plaintiffs would have been reprimanded under either policy, and that the "new policy" has effectively superseded the old. We refer to them collectively as "the board policy." Under both versions, all student-written communications had to be submitted for prior approval before being distributed on school property; under both versions, students would be formally censured for failure to make such submission, and under neither version was this material objectionable. Also, under neither version did the school attempt to narrow or define the subject matter it wished to scrutinize in order to avoid subjecting all communication to possible censorship.

The case came before the district court for trial on plaintiffs' application for a permanent injunction enjoining enforcement of the policy. There was no evidence that Bad Astra had interfered with the operation of the high school or impinged upon other students' rights. It was distributed at a school barbecue at which a rock band was playing and at which the students were already socializing. Defendants showed that a few teachers who had been mocked in the newspaper became emotionally upset, but the distribution caused no violence or physical damage, nor did it interfere with classes. Defendants admitted that if the students had submitted Bad Astra for prior review, the defendants would have allowed distribution without change. We thus are confronted with a unique and ironic situation in which a school has punished students for distribution of material which both sides acknowledge could not be suppressed under the first amendment.

In support of its policy, the defendants offered evidence that a prior publication in a different school in the Renton School District had once harmed a student cheerleader because it contained a story concerning her alleged promiscuity. In addition, they offered evidence that other publications in another school district had caused some disruption of classes. However, only one other "underground" student publication had ever been distributed at Lindbergh High and that paper had created no disturbance.

The defendants' expert admitted that he knew of no studies nor any statistics showing that school districts without a...