Bystrom By and Through Bystrom v. Fridley High School, Independent School Dist. No. 14

• Decision Date: 28 August 1987
• Docket Number: No. 14,No. 86-5140,14,86-5140
• Citation: 822 F.2d 747
• Parties: 40 Ed. Law Rep. 641, 14 Media L. Rep. 1517 Cory BYSTROM, a minor, By and Through Robert and Helen BYSTROM, his parents and natural guardians; Adam Collins, a minor, By and Through Michael and Melinda Collins, his parents and natural guardians; John Collins; Jeremy Scott-Martin Saperstein; and David Drangeid, a minor, By and Through Gerald Drangeid, his father and natural guardian, Appellees, v. FRIDLEY HIGH SCHOOL, INDEPENDENT SCHOOL DISTRICT NO. 14, a municipal corporation; Dr. Dennis Rens, individually and as Superintendent of Independent School District; and Donald Meyers, individually and as principal of Fridley High School, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 747

822 F.2d 747

40 Ed. Law Rep. 641, 14 Media L. Rep. 1517

Cory BYSTROM, a minor, By and Through Robert and Helen

BYSTROM, his parents and natural guardians; Adam Collins, a

minor, By and Through Michael and Melinda Collins, his

parents and natural guardians; John Collins; Jeremy

Scott-Martin Saperstein; and David Drangeid, a minor, By and Through Gerald Drangeid, his father and natural guardian, Appellees, v. FRIDLEY HIGH SCHOOL, INDEPENDENT SCHOOL DISTRICT NO. 14, a

municipal corporation; Dr. Dennis Rens, individually and as

Superintendent of Independent School District No. 14; and

Donald Meyers, individually and as principal of Fridley High

School, Appellants.

No. 86-5140.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 17, 1986.

Decided June 25, 1987.

Rehearing and Rehearing En Banc Denied Aug. 28, 1987.

David R. Hols, Minneapolis, Minn., for appellants.

Stephen Foley, Minneapolis, Minn., for appellees.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

ARNOLD, Circuit Judge.

This case raises questions of the right of public high school authorities to regulate or prohibit the distribution on school property of written material prepared by students or others. We are required to answer two questions: First, does the First Amendment, as applied to the States by the Due Process Clause of the Fourteenth Amendment, absolutely prohibit any form of prior restraint on such distribution? Second, if the answer to the first question is no, is the policy of Independent School District No. 14 of Fridley, Minnesota, on distribution of unofficial written material on school premises consistent with the First Amendment? We hold that prior restraint is not unconstitutional per se in this limited area, and that the school policy before us in this case is, with one important exception, constitutional.

I.

The plaintiffs, students at Fridley High School, brought this suit under 42 U.S.C. Sec. 1983 for declaratory and injunctive relief. The defendants are the school district, its superintendent, and the principal of Fridley High School. The students wished to distribute, and in fact did distribute on school premises, an "underground newspaper" known as Tour de Farce. ¹ Defendants claimed the right to review in advance any such publication and to prevent its distribution on school property unless it complied with school-district rules entitled "Distribution of unofficial written material on school premises." ² Both sides moved for summary judgment, and the case was submitted on stipulated facts. J.A. 38-42. After hearing argument, the District Court held the school policy unconstitutional "particularly as it refers to prior restraint...."

                Transcript of Summary Judgment Ruling (Tr.) 30, J.A. 45.  It also specifically held invalid Guidelines C (referring to writings that are "pervasively indecent or vulgar") and E (referring to writings that "invade [ ] the privacy of another person or endanger[ ] the health or safety of another person.")    The Court said:  "Guideline C, the pervasively indecent or vulgar language is clearly unconstitutional as vague and overbroad."    Tr. 29, J.A. 44
                

II.

We begin with a word about the legal context in which this case arises. Only distribution "on school property," J.A. 3, is at issue here. The school district asserts no authority to govern or punish what students say, write, or publish to each other or to the public at any location outside the school buildings and grounds. If school authorities were to claim such a power, quite different issues would be raised, and the burden of the authorities to justify their policy under the First Amendment would be much greater, perhaps even insurmountable. See, e.g., Thomas v. Board of Educ., Granville Cent. School Dist., 607 F.2d 1043 (2d Cir.1979), cert. denied, 444 U.S. 1081, 100 S.Ct. 1034, 62 L.Ed.2d 765 (1980). Moreover, we deal here only with secondary schools. ³ Specifically, what we say in this opinion does not apply to college or other post-secondary campuses and students. Few college students are minors, and colleges are traditionally places of virtually unlimited free expression. See, e.g., Stanley v. Magrath, 719 F.2d 279 (8th Cir.1983).

We can understand the District Court's apparent feeling that the policy involved here is invalid simply because it involves a prior restraint on the freedom of the press. Prior restraints are traditionally the form of regulation most difficult to sustain under the First Amendment, see, e.g., Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-20, 51 S.Ct. 625, 630-32, 75 L.Ed. 1357 (1931), though "the protection even as to previous restraint is not absolutely unlimited," id. at 716, 51 S.Ct. at 631. At the time of the District Court's ruling, the validity of prior restraints applied to high-school students was an open question in this Circuit. But since that time, we have clearly rejected the view that prior restraints are per se unconstitutional in the high-school context. Kuhlmeier v. Hazelwood School Dist., 795 F.2d 1368, 1374 n. 5 (8th Cir.1986), cert. granted, --- U.S. ----, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987). This panel is bound by Kuhlmeier, and we therefore now hold that defendants' policy is not unconstitutional merely because it asserts a right of prior review and restraint on the part of school authorities.

III.

We therefore turn to the particulars of defendants' policy. Plaintiffs attack it in several respects, each of which we shall discuss. Before doing so, we venture a few general observations. First, many of the terms and phrases contained in the policy are not specific. They are attacked as vague, general, and overbroad, and concededly some of the wording is much more general than what we are accustomed to in many areas of the law. Yet, we must remember that a high degree of generality is made necessary by the subject matter. The concepts involved (indecency, vulgarity, likelihood of material disruption) are general by their very nature. But violation of these guidelines does not subject anyone to criminal sanctions, nor do they apply to the public at large or to territory outside school property. The addressees of this policy are not fully sui juris; they are minors, or at least most of them are. The guidelines are designed to assure that school hours and school property are devoted primarily to education as embodied in the district's prescribed curriculum. Their purpose is to preserve some trace of calm on school property. They are one expression of the "legitimate and substantial community 1. Guideline A prohibits material that is "obscene to minors." This phrase is defined as follows:

                interest in promoting respect for authority and traditional values be they social, moral, or political."   Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 864, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 435 (1982) (opinion of Brennan, J., joined by Marshall and Stevens, JJ., announcing the judgment of the Court) (internal quotation omitted)
                

"Obscene to minors" is defined as:

(a) The average person, applying contemporary community standards, would find that the written material, taken as a whole appeals to the prurient interest of minors of the age to whom distribution is requested;

(b) The material depicts or describes, in a manner that is patently offensive to prevailing standards in the adult community concerning how such conduct should be presented to minors of the age to whom distribution is requested, sexual conduct such as intimate sexual acts (normal or perverted), masturbation, excretory functions, and lewd exhibition of the genitals; and

(c) The material, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

This definition is consistent with Supreme Court authority on the power of government to regulate distribution of written material to minors. See Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). It is settled that states may "accord minors ... a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read or see." Id. at 637, 88 S.Ct. at 1279. In fact, the language selected by the school board to define "obscene to minors" is quite similar to the definition of this phrase recommended in a policy statement on public secondary school student publications drafted by the Minnesota Coalition Against Censorship, a group of public-interest organizations including the Minnesota Civil Liberties Union, the Minnesota Education Association, and others. J.A. 31, 35-36. ⁴

Plaintiffs contend, however, that the decision whether a certain writing is obscene as to minors may be made only by a court, not by school authorities. On this view, material obscene as to minors could be freely circulated within the school until school authorities filed suit and obtained a judicial determination that the material violated the relevant legal definition. For this proposition plaintiffs cite Thomas v. Board of Educ., supra. Thomas does hold, 607 F.2d at 1048, that "the constitutional status of speech [should] be determined by the judiciary," but this statement is made with respect to efforts to prevent or punish speech "[i]n the community-at-large," ibid. In Thomas, "all but an insignificant amount of relevant activity ... was deliberately designed to take place beyond the schoolhouse gate," id. at 1050. Here, of course, we deal with a restraint that will apply only on school property. The difference is decisive. The applicable law, we think, is well stated in Eisner v. Stamford Board of Educ., 440 F.2d 803, 810 (2d Cir.1971), a case whose authority is recognized and left unimpaired by Thomas. (In fact, Chief Judge Kaufman wrote for the Second Circuit in both cases.) The Eisner Court said:

... it would be highly disruptive to the educational process if a secondary school principal were required...