Barcik v. Kubiaczyk
| Decision Date | 25 May 1995 |
| Parties | , 100 Ed. Law Rep. 759 Carol BARCIK, as Guardian Ad Litem for Scott Barcik, a Minor; William Jansen, as Guardian Ad Litem for Tom Jansen, a Minor; Joe Kasten and Sheilah Kasten, as Guardians Ad Litem for Shannon Kasten, a Minor; Barry Edwards and Mona Edwards, as Guardians Ad Litem for Marce Edwards, a Minor; Cordes Lowery and Sharon Lowery, as Guardians Ad Litem for Matt Lowery, a Minor; David Frost; Josh Olson; and Chuck Kostur and Dianne Kostur, as Guardians Ad Litem for Kay Kostur, a Minor, Petitioners on Review, v. Mark KUBIACZYK; Al Davidian; Russ Joki; Pat Biggs; Jack Clinton; Mike Nelson; Richard Carlson; Gary Cumpston; and the Tigard-Tualatin School District 23 J, Respondents on Review. CC C92-0085CV; CA A77165; SC S41340. |
| Court | Oregon Supreme Court |
[321 Or. 176-B] Jonathan M. Hoffman, of Martin, Bischoff, Templeton, Langslet & Hoffman, Portland, argued the cause for petitioners on review. With him on the petition was Michael G. Harting.
Duane A. Bosworth, of Davis Wright Tremaine, Portland, argued the cause for respondents on review. With him on the brief was Gustavo J. Cruz, Jr.
The issue in this case is whether the Court of Appeals erred when, sua sponte, it reversed a circuit court judgment from which plaintiffs had appealed and remanded the case with instructions to dismiss the complaint and vacate the judgment, on the ground that "there was no justiciable controversy before the circuit court when it entered judgment on plaintiffs' [claims]." Barcik v. Kubiaczyk, 127 Or.App. 273, 277, 873 P.2d 456 (1994). We conclude that the Court of Appeals erred, in part, in dismissing plaintiffs' claims, and we therefore affirm in part and reverse in part.
Plaintiffs challenged regulations adopted by the Tigard-Tualatin School District (district) governing official and unofficial student publications. The challenged regulations authorize school administrators to review and censor official and unofficial student publications before their distribution and to discipline students who are responsible for the distribution or publication of material that violates the regulations.
Plaintiffs Carol Barcik, William Jansen, Joe and Sheilah Kasten, Barry and Mona Edwards, and Cordes and Sharon Lowery are the parents and guardians for Scott Barcik, Tom Jansen, Shannon Kasten, Marce Edwards, and Matt Lowery, who were seniors at Tigard High School when the district enacted the regulations on January 30, 1992. Plaintiffs Frost and Olson were seniors at Tigard High School when the district enacted the regulations on January 30, 1992. 1 All the foregoing students have graduated from Tigard High School. We will refer to them collectively as "Senior plaintiffs." Plaintiffs Chuck and Dianne Kostur are the parents of Kay Kostur, who was a student at the district's junior high school when the regulations were enacted.
Before the regulations were enacted, the following events occurred. On December 4, 1991, Scott Barcik distributed a flyer that solicited articles for publication in "Low-Spots,"'S a nonschool-sponsored ("underground") publication. The next day, the school's assistant principal told Barcik that distribution of the flyer violated school policy, because it had not been approved by the school's director of student activities. The assistant principal issued a formal warning to Barcik and informed him that, if he intended to publish and distribute "Low-Spots," he could either submit "Low-Spots" to the school's administration for approval before its distribution or publish "Low-Spots" without using any school resources and distribute it off school grounds.
On January 13, 1992, "Low-Spots" was distributed to students on school property. No prior approval had been given for the distribution. Defendant Kubiaczyk, the principal at Tigard High School, informed Barcik and Jansen that "Low-Spots" was unacceptable, because it contained profanity and because it had not been submitted to the administration for prior approval. Imposition of proposed disciplinary measures (discussed more fully below) was postponed pending the circuit court's decision in this matter.
On January 23, 1992, a second underground publication, "The Spots on My Dog," appeared on school grounds. None of the plaintiffs was involved in its publication or distribution. That publication also contained profanity.
"Hi-Spots" is the official newspaper of Tigard High School. Shannon Kasten, Marce Edward, Matt Lowery, and David Frost served on the editorial board of "Hi-Spots." Following the distribution of "Low-Spots," On January 24, 1992, Kubiaczyk met with the editorial board of "Hi-Spots." He told them that the School Board had asked for review of the editorial and that the editorial could not be printed as written. Kasten and Edwards called the printer and instructed it to place the following message in red ink, where the editorial was to appear: "CENSORED BY: MARK KUBIACZYK, RUSS JOKI, AL DAVIDIAN, TIGARD-TUALATIN SCHOOL BOARD." 2
but before the distribution of "The Spots on My Dog," the "Hi-Spots" editorial board decided to write an editorial on underground student papers. Frost drafted an editorial entitled "Low-Spots Says a lot about freedom," which said that the "Hi-Spots" staff "appreciate[d the] underground paper's special opinion and angle." Kubiaczyk was concerned that the editorial would be perceived as an endorsement of both "Low-Spots" and "The Spots on My Dog." Kubiaczyk discussed his concerns with other administrators in the district and gave a copy of the "Hi-Spots" editorial to the district's lawyers. Publication of the editorial was postponed. On January 23, the School Board saw copies of the two underground papers and the "Hi-Spots" editorial
On January 30, 1992, the district adopted the challenged regulations. On January 31, plaintiffs filed a complaint challenging those regulations. Plaintiffs alleged that the regulations violate Article I, section 8, of the Oregon Constitution, 3 the First and Fourteenth Amendments to the Constitution of the United States, 4 and various Oregon statutes. Plaintiffs sought an injunction barring the continued enforcement of the regulations, plus monetary damages of $100, pursuant to 42 U.S.C. § 1983, 5 ORS 30.265, 6 and ORCP 79. 7 Pursuant to ORS 28.010, 8 plaintiffs also sought a declaration that portions of the regulations are unconstitutional.
The circuit court conducted a trial on the merits of plaintiffs' claims. Thereafter, on October 10, 1992, the circuit court entered a "Declaratory Judgment and Final Decree." The court dismissed all plaintiffs' claims that were rooted in either the Oregon Constitution or Oregon statutes. The court held, however, that defendant Kubiaczyk's censorship and discipline of Barcik and Jansen, and the administration's censorship of the "Hi-Spots" editorial, violated the First and Fourteenth The parties debate whether the academic records of Barcik and Jansen contain any indication of disciplinary action related to the challenged regulations. The circuit court's judgment states:
In turn, "Plaintiffs' Proposed Findings of Fact" stated: Scott Barcik was given a warning by the assistant principal, for solicitation of articles to "Low-Spots," and that warning is reflected in his student record (Proposed Finding of Fact # 3); plaintiffs Barcik and Jansen were to be suspended for seven days after the distribution of "Low-Spots" (Proposed Finding of Fact # 10); that suspension is reflected in Barcik's student record (Proposed Finding of Fact # 11); the proposed suspension was converted to a ten-page research paper on students' First Amendment rights (Proposed Finding of Fact # 13); and that punishment was postponed pending the outcome of this litigation (Proposed Finding of Fact # 14). Nothing in the trial court's oral ruling on August 13, 1992, contradicts those proposed findings. Thus, we take the foregoing as findings of the circuit court.
The testimony indicates that some record of disciplinary action taken against Barcik for his involvement in "Low-Spots" exists in Barcik's academic record. However, there is no similar indication that Jansen's academic record contains any report whatsoever of disciplinary action taken in connection with his involvement in "Low-Spots." Moreover, the evidence establishes affirmatively that any discipline that was contemplated as to Jansen never was activated and was withdrawn.
Plaintiffs appealed from the circuit court's judgment, arguing that the district's regulations violated Article I, section 8, of the Oregon Constitution. The Court of Appeals, sua sponte, reversed the judgment of the circuit court and remanded the case with instructions to dismiss the complaint and vacate the judgment. Barcik, 127 Or.App. at...
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