Hall v. Board of School Com'rs of Mobile County, Ala.

• Decision Date: 02 August 1982
• Docket Number: No. 80-7720,80-7720
• Citation: 681 F.2d 965
• Parties: , 5 Ed. Law Rep. 370 Bobby HALL, et al., Plaintiffs-Appellees, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, ALABAMA, et al., Defendants-Appellants. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 965

681 F.2d 965

65 A.L.R.Fed. 196, 5 Ed. Law Rep. 370

Bobby HALL, et al., Plaintiffs-Appellees, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, ALABAMA, et al., Defendants-Appellants.

No. 80-7720.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Aug. 2, 1982.

Sintz, Pike, Campbell & Duke, Frank G. Taylor, Mobile, Ala., for defendants-appellants.

Larry T. Menefee, Mobile, Ala., Michael D. Simpson, Nat. Educ. Assn., Washington, D. C., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Alabama.

Before RONEY, KRAVITCH and ANDERSON, Circuit Judges.

RONEY, Circuit Judge:

This case involves four policies of the defendant school board, two relating to the distribution of literature on school campuses and two relating to visitors on school campuses. The district court, 496 F.Supp. 697, held all four policies facially unconstitutional and also held the two policies concerning literature distribution unconstitutional as applied. Because we share the school officials' basic concern that school administrators must have wide latitude in formulating and administering rules and regulations necessary to promote safety, discipline, order and the appropriate atmosphere for the educational goals of the school, we have studied this case an inordinate length of time since oral argument. Having carefully reviewed the record, the arguments of counsel and the law, however, we hold the district court correctly held the two policies concerning literature distribution to be unconstitutional both facially and as applied. As to the two policies regulating visitors on school campuses, although the question is a close one, we reverse the decision that the policies were facially unconstitutional.

The litigation arose out of a dispute over a teacher competency testing proposal favored by the defendant Board of School Commissioners of Mobile County, Alabama and its members, but strongly opposed by groups of teachers. Certain teachers brought this action on behalf of all present and future teachers employed by the Board and on behalf of a subclass composed of members of the Mobile County Education Association.

The Board of School Commissioners of Mobile County has responsibility for running a school district encompassing 87 local schools, with 87 principals, over 3,000 teachers and 66,000 students. In the course of its administration, the Board adopted four policies intended to regulate the distribution of literature on school campuses and access to the schools by "visitors."

The two policies regulating literature are denoted KIA and KIB and provide:

Policy KIA:

All material political or sectarian in nature distributed on any school campus shall have prior approval of the Assistant Superintendent of Administration.

Policy KIB:

Distribution of special interest materials in the local school shall have prior approval of the Assistant Superintendent of Administration.

The two policies regulating visitors in school campuses are denoted KM and GBRBB and provide in pertinent part:

Policy KM:

All persons not assigned to a school shall report directly to the office when visiting in a school.

The local principal shall within approved systemwide policies develop and disseminate procedures governing individuals visiting in schools.

Final authority in visitation to the local school shall reside within the decision of the principal or responsible designee, keeping in mind the system's obligation is to the safety, welfare, and education of children.

Policy GBRBB:

The school day shall be defined as the time when classes are in session and when faculty and in-service meetings are being held.

All persons requesting to visit schools to interpret, sell and/or promote products or services must receive a letter of introduction from the assistant superintendent in charge of local school administration (the assistant superintendent may deny the request for a letter of introduction based upon his investigation of the request) to the local school principal who has the prerogative of approving or denying the request to visit the school.

In emergency situations as determined by the teacher, principal and the Division of Personnel, arrangements can be made for a conference with a representative of a teacher organization.

All professional faculty members are required to be at their stations of duty no later than fifteen (15) minutes before school begins and to leave no earlier than fifteen (15) minutes after the school day ends.

The controversy over application of the above policies grew out of attempts by the MCEA to disseminate documents to teachers, send speakers to school meetings and arrange meetings at the schools.

The district court's findings of fact, which are not contested by the parties, detail the particular incidents involved. Without reviewing them in detail here, it is fair to say the Assistant Superintendent and the principals had widely differing views on what and who should be allowed in the schools with respect to the testing dispute: some Board documents were permitted while some MCEA documents were excluded; in some cases the MCEA sought permission from the Assistant Superintendent and the principals, and in other cases it attempted to distribute leaflets and hold meetings without first seeking permission.

A court's task in balancing the administrators' need for discretion with First Amendment rights of students, teachers and the community is a difficult one. A member of this Court succinctly addressed the problem:

Free expression is itself a vital part of the educational process. But in measuring the appropriateness and reasonableness of school regulations against the constitutional protections of the First and Fourteenth Amendments the courts must give full credence to the role and purposes of the schools and of the tools with which it is expected that they deal with their problems, and careful recognition to the differences between what are reasonable restraints in the classroom and what are reasonable restraints on the street corner.

Ferrell v. Dallas Independent School District, 392 F.2d 697, 704-05 (5th Cir.) (Godbold, J., concurring), cert. denied, 393 U.S. 856, 89 S.Ct. 98, 21 L.Ed.2d 125 (1968).

A. Policies KIA and KIB

As to policies KIA and KIB, it appears to us the district court has carefully performed its balancing function in analyzing the policies and their administration, capturing both the spirit and intent of the law. We have therefore annexed as an appendix that portion of the district court's opinion dealing with the ultimate disposition of the issues before it.

Without the standards and the guidelines the district court held necessary to make them constitutional, it seems to us the only way to validate the policies as written, would be to assume the Board intended to promulgate valid policies, making the guidelines developed by the courts a part of them. The fact findings of the district court and the defenses asserted in this litigation, however, make clear that neither the Board nor the administrators interpreted the policies within the constraints of such guidelines. Thus the Board cannot find refuge in the language of Murray v. West Baton Rouge Parish School Board, 472 F.2d 438 (5th Cir. 1973), which sustained imprecise regulations on the following analysis:

The statutory proscriptions at issue here are unquestionably imprecise. It is clear, however, that school disciplinary codes cannot be drawn with the same precision as criminal codes and that some degree of discretion must, of necessity, be left to public school officials to determine what forms of misbehavior should be sanctioned. Absent evidence that the broad wording in the statute is, in fact, being used to infringe on First Amendment rights, cf. Tinker v. Des Moines Ind. Community School Dist., 1969, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731, we must assume that school officials are acting responsibly in applying the broad statutory command. See generally, Karr v. Schmidt, 5 Cir. 1972, 460 F.2d 609. Despite a vehement attack on the administration of the Port Allen High School, plaintiffs have in no way made a factual showing that the statutory discretion accorded to the school officials is being constitutionally abused.

Id. at 442 (footnote omitted).

Although the district court found that the literature policies were subject to varying interpretations, the administrators clearly interpreted them to give authority transgressing the First Amendment rights of the teachers under the principles analyzed in Shanley v. Northeast Independent School District, Bexar County, Texas, 462 F.2d 960 (5th Cir. 1972). Letters by two Board members on the subject of teacher competency testing were distributed in the schools, while two MCEA papers opposing the Board's position were treated differently. One administrator said he would not have approved the MCEA papers for distribution due to their tendency to incite teachers. One principal refused their distribution in his school solely on the ground they were union material. The problem lies in the fact that there was no difference between the possible disruptive effect of the Board's communications and the MCEA's communications on the subject in controversy. They differ only in the positions taken. School administrators and principals may not permit one side to promote its position while denying the other side the same opportunity.

At oral argument the plaintiffs asserted the decision of the district court is a narrow one. We agree. It involves the rights of teachers to communicate with each other and to be communicated with. It does not involve the rights of students or of persons not assigned to the schools except as related to the rights of the teachers. It does not involve classrooms, students in assembly, or student activities. In summation the plaintiffs' attorney merely argued these policies had been used to interfere with protected...