Bell v. U-32 Bd. of Educ.

• Decision Date: 17 March 1986
• Docket Number: Civ. A. No. 84-50.
• Citation: 630 F. Supp. 939
• Court: U.S. District Court — District of Vermont
• Parties: Megara BELL, b/n/f Michael Bell Peter Eisenbeiser b/n/f Nancy Huelsberg, Jenny McCracken b/n/f JoAnn McCracken, Claudia Welch b/n/f Ray Welch and Benjamin Whalen b/n/f William Whalen v. The U-32 BOARD OF EDUCATION, Claudia Bristow, Julian Goodrich, Burtt McIntyre, Kathleen Osborne, Rebecca Shepard, Richard Staudt and Ruth Towne.

630 F. Supp. 939

Megara BELL, b/n/f Michael Bell Peter Eisenbeiser b/n/f Nancy Huelsberg, Jenny McCracken b/n/f JoAnn McCracken, Claudia Welch b/n/f Ray Welch and Benjamin Whalen b/n/f William Whalen v. The U-32 BOARD OF EDUCATION, Claudia Bristow, Julian Goodrich, Burtt McIntyre, Kathleen Osborne, Rebecca Shepard, Richard Staudt and Ruth Towne.

Civ. A. No. 84-50.

United States District Court, D. Vermont.

March 17, 1986.

Alan Rosenfeld, Plainfield, Vt., for plaintiffs.

Robert H. Opel, Paterson, Walke & Pratt, Montpelier, Vt., for defendants.

COFFRIN, Chief Judge.

In this action, plaintiff students allege that the defendant school board abridged their first amendment rights by refusing to allow production of the play Runaways as the annual spring musical at U-32 High School in East Montpelier, Vermont, in January 1984. Plaintiffs seek an order compelling production of the play, compensatory damages, and attorney fees. On February 21, 1984, we denied plaintiffs' motion for a preliminary injunction to compel production of the play. The matter is now before us on cross-motions for summary judgment on the merits. Based on the stipulated facts and the parties' agreements, we GRANT defendants' motion for summary judgment, DENY plaintiffs' cross-motion for summary judgment, and ORDER that JUDGMENT be entered FOR DEFENDANTS.

STIPULATED FACTS

The play at issue, Runaways, focuses on the emotions and reflections of several child runaways concerning the problems at home from which they fled and the problems they face alone in the city. Much of the play juxtaposes simultaneous choral sing-song of nursery rhymes and childhood taunts with portrayals of rough life on the streets. Some scenes concern child abuse, child prostitution, alcohol and drug abuse, and rape. In one scene, the actors simulate a rape and murder. The play has little profane language, and there is sporadic humor.

The parties have stipulated to the material facts necessary to determine the issue of liability as follows:

Each spring, U-32 High School sponsors a spring musical, which its students perform both for the school community and for the community at large. The school funds the production initially, covers costs not reimbursed by ticket sales, provides facilities for rehearsals and performances, publicizes the performances, and allows its name to be used as the sponsor of the play in this publicity.

Most of the performers and crew for these productions are selected from the student body, which consists of grades 7-12. The student participants receive grades and academic credit for their participation, and the play is considered to be part of the curriculum. The school employs and specially compensates various faculty members to direct the play and to supervise different aspects of its production. A group of faculty members choose the play each January, and the School Board commonly approves the choice implicitly by appropriating funds for the production.

On or about January 16, 1984, the director of curriculum expressed concern to the high school principal about the appropriateness of the choice of Runaways for the 1984 spring musical. After reading the play and discussions with the school administrative team, the faculty members who had selected the play, the director, and other interested staff members, the principal and the superintendent of schools agreed that they could not support production of the play.

The director of performing arts appealed to the school board, and a special board meeting was scheduled for three days later, Monday, January 23, a time which would allow a decision to be made before auditions, which were scheduled to begin on Tuesday. Notice of the meeting was posted in a local store and in the superintendent's office, and a local radio station broadcast notice of the meeting in its weekend public service announcements. All but one of the board members were present at the meeting. Several staff members and students attended and were accorded an opportunity to be heard. Without stating its reasons, the Board voted that the play should not be produced.

Shortly after this meeting, plaintiffs contacted an attorney, who asked the board to reconsider its decision and to articulate its reasons for the decision. In a letter dated February 8, 1984, the Board responded that it would add the motion to reconsider to the agenda of its next regular meeting on February 23 and that if it did vote to reconsider, any interested persons would have an opportunity to present their views. It also explained its decision not to produce the play as follows:

Runaways deals with strong and mature themes such as drug abuse, alcoholism, prostitution, child abuse, and rape. The U-32 annual spring production is and has been an inherent part of the curriculum of U-32. Furthermore, the commitment of resources to the project has always been made with the expectation that the resulting production would be appropriate viewing for the school community and the community at large. The Board is of the view that the content of Runaways is such that the exercise of mature judgment would compel the seeking of parental consent to view the production for many of the children at U-32. Given the large number of plays available to choose from, the Board does not feel that a production with these inherent limitations and drawbacks constitutes a proper allocation of U-32 educational resources or is otherwise suitable in fulfilling the aims of public education.

Plaintiffs filed this action the same day.

The parties have stipulated that the Board disapproved the play because the play refers to, describes, or depicts sexual activity, child abuse, physical violence, sexual violence, drug abuse, alcohol abuse, and child prostitution. Although the Board did not find that Runaways advocates or glamorizes any of these activities, it concluded that the play involved inappropriate activity for the students who would be involved in performing and producing the play and would be inappropriate viewing as a school-sponsored event for the school community and the community at large.

Runaways is available to the entire student body in the U-32 school library, and it is used as a text in a humanities course at the school. The Board's decision not to produce the play as the spring musical had no effect on the play's availability in the library nor on its use in the humanities course.

DISCUSSION

Plaintiffs' amended complaint in this section 1983 action asserts three theories under which they assert defendants may be held liable for their actions: 1) direct abridgment of first amendment rights of free speech and communication; 2) abridgment of first amendment rights through the chilling effect of their actions; and 3) deprivation of a liberty interest in free speech without due process of law. We shall address each theory separately.

I. Direct Abridgment of First Amendment Rights

Plaintiffs' first cause of action asserts that the Board's decision not to produce Runaways directly abridged their first amendment rights to free speech and communication. Defendants argue that the decision was one concerning the school's curriculum, over which they have unfettered discretion in this situation; they did not bar access to the ideas in the play; and their decision was motivated by a proper purpose; thus, they did not abridge plaintiffs' first amendment rights. Plaintiffs respond that because the decision was an "exclusionary" one, it more clearly implicates constitutional values and that the material is not actually inappropriate for children, and therefore should not have been censored.

Both parties couch their arguments in terms of whether the Board's decision "directly and sharply implicates" the students' first amendment rights, citing to our February 21, 1984 Opinion and Order and Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 866, 102 S.Ct. 2799, 2807, 73 L.Ed.2d 1013 (1982) (plurality). They have taken the reference out of context. The issue of whether constitutional rights are implicated is a threshold issue concerning whether a federal court should intervene in conflicts that arise in the day-to-day operation of the schools in light of the state's control of public education generally and the local school board's broad discretion in the management of school affairs. Pico, 457 U.S. at 863-64, 102 S.Ct. at 2806. Thus, this issue was a primary concern in our February opinion denying plaintiffs' motion for a preliminary injunction. At this stage of the proceedings, however, we are asked to review the constitutional soundness of a content-based restriction on speech that is protected by the first amendment. We believe that first amendment values are sufficiently implicated to warrant minimal intervention through judicial review of the Board's actions.

Nonetheless, once we have decided that judicial review is warranted, we still must evaluate whether defendants' actions actually abridged plaintiffs' rights. We find they did not. Our analysis begins with a recitation of some underlying and controlling principles.

First, the speech at issue is protected by the first amendment. The degree of protection to which speech is entitled, however, varies depending upon the type of speech and the context in which it is spoken or presented. See FCC v. Pacifica Foundation, 438 U.S. 726, 744-48, 98 S.Ct. 3026, 3037-39, 57 L.Ed.2d 1073 (1978). Here, we are treating speech that is not obscene, but it does have integral parts that are vulgar, offensive, or indecent; it concerns mature themes that our society generally considers to be inappropriate for young children. Second, the Board's decision was based on the content of the speech. Although restraints based upon content are viewed with greater suspicion, content regulation does not, in and of itself, violate the first amendment. FCC v. Pacifica Foundation, 438 U.S. 726, 744, 98 S.Ct. 3026, 3037 (...