Counts v. Cedarville School District

• Decision Date: 22 April 2003
• Docket Number: No. CIV.02-2155.,CIV.02-2155.
• Parties: Billy Ray COUNTS, Individually, in his Official Capacity as a Library Committee member, and Mary Nell Counts, both as parents of Dakota Counts Plaintiffs v. CEDARVILLE SCHOOL DISTRICT Defendant
• Court: U.S. District Court — Western District of Arkansas

295 F.Supp.2d 996

Billy Ray COUNTS, Individually, in his Official Capacity as a Library Committee member, and Mary Nell Counts, both as parents of Dakota Counts Plaintiffs v. CEDARVILLE SCHOOL DISTRICT Defendant

No. CIV.02-2155.

United States District Court, W.D. Arkansas, Ft. Smith Division.

April 22, 2003.

Carey Brian Meadors, Pryor, Robertson & Barry, PLLC, Fort Smith, AR, for plaintiffs.

David R. Hogue, Christian Legal Service, Conway, AR, for defendant.

John L. Burnett, Lavey and Burnett, Little Rock, AR, Theresa A. Chmara, Daniel Mach, Martina E. Vandenberg, Jenner & Block, LLC, Washington, DC, for amicus.

MEMORANDUM OPINION

HENDREN, District Judge.

Now on this 22 day of April, 2003, come on for consideration Plaintiffs' Motion For Summary Judgment (document # 9) and defendant's Motion To Dismiss (document # 13), and from said motions, the supporting documentation, and the responses thereto, the Court finds and orders as follows:

1. Plaintiffs, Billy Ray Counts, Individually, in his official capacity as a Library committee member, and Mary Nell Counts, both as parents of Dakota Counts (hereinafter called "plaintiffs" or by their individual names, as appropriate) brought suit pursuant to 42 U.S.C. § 1983, alleging that their rights under the First and Fourteenth Amendments to the United States Constitution were being abridged by the decision of the defendant, Cedarville School District, to restrict the access of students, including Dakota Counts, to certain books in defendant's library. (The defendant, Cedarville School District, will hereinafter be referred to either as the "defendant" or the "District".) Plaintiffs prayed for an injunction requiring defendant to return the books to general circulation in its library, and now move for summary judgment.

Defendant denies that any constitutional rights have been violated by its actions and argues affirmatively that the matter should be dismissed because the plaintiffs lack standing to bring their claims.

2. As a preliminary matter, the Court notes that a Brief of Amici Curiae was filed in this matter by numerous groups supporting plaintiffs' motion for summary judgment, to which the defendant has lodged an objection that there is no provision for such a filing. While rare, the Court notes that amicus briefs have been received in cases pending before United States District Courts. See, e.g., Michigan National Bank v. State of Michigan, 365 U.S. 467, 81 S.Ct. 659, 5 L.Ed.2d 710 (1961) and I.C.C. v. Allen E. Kroblin, Inc., 212 F.2d 555 (8th Cir.1954). However, given the unusual nature of the filing, the Court believes the better course for it to follow is to simply not include the amicus brief in the matters it will consider in this case. It will, therefore, follow that course.

3. The Court will first address defendant's motion to dismiss for lack of standing, given that it touches on the jurisdiction of the Court to resolve the substantive issues in this case.¹ Standing is a necessary component of the jurisdiction of an Article III court, which exists to resolve cases or controversies. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

Generally speaking, there are three elements of standing:

* the plaintiff must have suffered an injury in fact, i.e., an invasion of a legally protected interest which is concrete and particularized and actual or imminent rather than conjectural or hypothetical;

* there must be a causal connection between the injury and the conduct complained of; and

* it must be likely, as opposed to merely speculative, that the injury will be redressed by a decision in plaintiff's favor.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

(a) Claims by Dakota Counts' parents — The Court first addresses the claims of Billy Ray counts and Mary Nell Counts as parents of Dakota counts. As will be seen from the facts recited in ¶ 5, infra, this case involves restrictions on access to certain books in the school libraries of the Cedarville School District. The restrictions require a student to have parental permission to check out the books. Defendant contends that no injury can be shown (i.e., that the case has become moot) because plaintiff Dakota Counts, a Cedarville student, owns several of the books, and her parents have signed a permission slip allowing her to check the books out of the school library. Thus, defendant argues, Dakota has "unfettered access" to the books.

Plaintiffs counter that Dakota has suffered an injury because there is a burden on her right to access the books — the requirement of parental consent — and that access in one forum is not a constitutional substitute for access in another.

The Court is persuaded that Dakota Counts has alleged sufficient injury to give her standing to pursue her claims in this case. The right to read a book is an aspect of the right to receive information and ideas, an "inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution." Board of Education v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982). The Supreme Court in Pico recognized that a school library is an "environment especially appropriate for the recognition of the First Amendment rights of students."

The loss of First Amendment rights, even minimally, is injurious. Marcus v. Iowa Public Television, 97 F.3d 1137 (8th Cir.1996). Illustratively, in a case finding political patronage unconstitutional, the Supreme Court has said that "the inducement afforded by placing conditions on a benefit need not be particularly great in order to find that rights have been violated. Rights are infringed both where the government fines a person a penny for being a Republican and where it withholds the grant of a penny for the same reason." Elrod v. Burns, 427 U.S. 347, note 13, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).

In the case at bar, it is suggested in plaintiffs' Complaint that Dakota's rights are burdened because the books in question are "stigmatized," with resulting "stigmatization" of those who choose to read them ("[c]hildren carrying the book with them in the school will be known to be carrying a `bad' book.") In addition, should Dakota want to review a passage in one of the books while at school, she cannot simply walk into the library and do so. She must locate the librarian, perhaps waiting her turn to consult the librarian, then ask to check the book out and wait while the librarian verifies that she has parental permission to do so, before she can even open the covers of the book.

The Court finds that these burdens, albeit relatively small, constitute a sufficient allegation of an actual concrete and particularized invasion of a legally protected interest to establish Dakota's standing to bring this suit.² Cf. Watchtower Bible v. Village of Stratton, 536 U.S. 150, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002) (requiring a permit — even one granted without cost or waiting period — as a prior condition on the exercise of the right to speak imposes a burden on speech); and Lamont v. Postmaster General of the United States, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965) (requiring addressee of mail to request its delivery in writing abridges First Amendment rights).

The fact that Dakota has access to the books at home does not undermine this decision. The Supreme Court has held that "one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (citing Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939)).

Defendant also argues that Dakota's claim was not ripe when filed, because she was not in school on July 3, 2002, the filing date, to request the books. No legal authority or supporting facts are cited for this proposition, and the Court will not further examine it except to note that this is not a case where administrative exhaustion or development of the record is called for, and the constitutional issue is presently fit for decision. Cf. Texas v. United States, 523 U.S. 296, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998).

The motion to dismiss will, therefore, be denied as to the claims of Billy Ray Counts and Mary Nell Counts as parents of Dakota Counts.

(b) Billy Ray Counts' Individual Claim — Billy Ray Counts claims — on his own behalf — that the defendant's board's decision "abrogates the Library Committee's and its members' ability to appropriately determine suitable material for including in the library without having an improperly motivated School Board override said determinations." This claim is neither fully fleshed out in the Complaint nor persuasively argued in the briefs. Thus, the Court is shown no basis upon which Billy Ray Counts would have standing in his own right to advance a constitutional claim on the facts presented. The motion to dismiss will, therefore, be granted as to the claim of Billy Ray Counts, Individually.

4. Having concluded that plaintiffs have standing to bring a claim of constitutional violation on behalf of Dakota Counts, the Court now turns to the issue of whether summary judgment in their favor is appropriate.

Summary judgment should be granted when the record, viewed in the light most favorable to the nonmoving party, and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Walsh v. United States, 31 F.3d 696 (8th Cir.1994). Summary judgment is not appropriate unless all the evidence points toward one conclusion, and is susceptible of no reasonable inferences sustaining the position of the nonmoving party. Hardin v. Hussmann Corp., 45 F.3d 262 (8th Cir. 1995). The burden is on the moving party to demonstrate the non-existence of a genuine factual...