Hedges v. Wauconda Community Unit School Dist. 118, 90 C 6604.

• Decision Date: 28 October 1992
• Docket Number: No. 90 C 6604.,90 C 6604.
• Citation: 807 F. Supp. 444
• Parties: Megan Renee HEDGES and Keith Hedges, By and Through their parents and next best friends, Kenneth and Nancy HEDGES, and Amy Nichole Lewis, By and Through her parents and next best friends, Richard and Audrey Lewis, Plaintiffs, v. WAUCONDA COMMUNITY UNIT SCHOOL DISTRICT NO. 118, Dr. H. Darrell Dick, Superintendent, and Christine Golden, Principal of Wauconda Junior High School, Defendants.
• Court: U.S. District Court — Northern District of Illinois

807 F. Supp. 444

Megan Renee HEDGES and Keith Hedges, By and Through their parents and next best friends, Kenneth and Nancy HEDGES, and Amy Nichole Lewis, By and Through her parents and next best friends, Richard and Audrey Lewis, Plaintiffs, v. WAUCONDA COMMUNITY UNIT SCHOOL DISTRICT NO. 118, Dr. H. Darrell Dick, Superintendent, and Christine Golden, Principal of Wauconda Junior High School, Defendants.

No. 90 C 6604.

United States District Court, N.D. Illinois, E.D.

October 28, 1992.

COPYRIGHT MATERIAL OMITTED

Charles E. Hervas, James Gus Sotos, Schirott & Associates, P.C., Itasca, IL, for plaintiffs.

William W. Kurnik, Kurnik, Cipolla, Stephenson & Barasha, Arlington Heights, IL, Stanley Bert Eisenhammer, Alice Moekle Ralph, Robert A. Kohn, Hodges, Loizzi, Eisenhammer, Rodick & Kohn, Arlington Heights, IL, for defendants.

MODIFIED MEMORANDUM OPINION AND ORDER

PLUNKETT, District Judge.

In 1990 Wauconda Junior High School promulgated a policy prohibiting student distribution of religious materials on school property. One of its students challenged this policy on the grounds that it violated her First Amendment right to freedom of speech. We agreed with the student and entered an order preliminarily enjoining the school district from enforcing the policy. The district subsequently revised its policy. The new policy no longer barred religious materials per se; instead, it barred the distribution of, among other things, religious materials that other students could reasonably believe was school sponsored and materials not primarily prepared by a student or concerning nonschool-sponsored events. The policy also placed certain time, place, and manner restrictions on the distribution of the materials that were allowed under the policy. The student, together with her brother and a friend, filed an amended complaint challenging this new policy on the grounds that it violated their First Amendment rights to freedom of speech.

On October 18, 1991, we issued a memorandum opinion and order in which we held that the Wauconda Junior High School is a closed forum and that the new policy was reasonable and that it was not a facade for viewpoint-based discrimination. The Plaintiffs filed a timely motion for a new trial or alternatively for an amendment of our judgment, requesting that we reconsider our decision that the junior high school was a closed public forum. We agreed to reconsider our decision and to allow the parties to engage in further discovery directed solely at the forum issue. Discovery and briefing are now complete.

After considering the parties' submissions, we have decided to amend our judgment as follows. First, we conclude that despite some uncertainty in Supreme Court and federal appellate court precedent, we properly found that Wauconda Junior High School was a closed forum. Second, the requirement in the new policy that only student-prepared material be distributed is unreasonable and consequently must be deleted. Third, the policy's time, place, and manner restrictions are invalid because in their current incarnation, these restrictions actually create the appearance of school sponsorship of student-distributed religious materials. Fourth and finally, we award damages to the Plaintiffs in the amount of ten dollars.

Background¹

When this action was filed, Megan Hedges was a thirteen-year-old, eighth-grade student at the Wauconda Junior High School and a member of the Wauconda Evangelical Free Church, both located in Wauconda, Illinois. Megan, who was quite active in her church, volunteered to distribute copies of a religious publication, Issues and Answers, at the junior high school. Megan and her family share a strong religious faith, and given the testimony of Megan's parents and the pastor of their church, it is clear that Megan wants to distribute copies of Issues and Answers as a way of "sharing her faith" with others.

On November 2, 1990, Chris Dawson, the church youth group leader, arranged for the distribution to take place on the sidewalk in front of the school before the school day began. Megan and several other students distributed approximately 100 copies of the October issue of Issues and Answers to Wauconda Junior High School students as they arrived at school that morning. Megan testified that not one student who was offered a copy of Issues and Answers refused to take it. In fact, several students approached Megan and asked to help distribute the issues.

The school principal, Christine Golden, noticed students reading Issues and Answers inside the school. She became concerned, after examining the publication, with certain references it made to satanism and Playboy magazine, and began collecting copies from students in her immediate area. She then contacted Dr. H. Darrell Dick, superintendent of the Wauconda Community School District, for further direction. Superintendent Dick directed Principal Golden to determine who distributed the publication and told her to give that person a copy of the School District's Leaflet Distribution Policy ("Original Policy").

A. The Original Policy

That policy, which became effective on November 1, 1990,² provided in part (with emphasis added):

(4) Only students of Wauconda Community School District No. 118 are permitted to engage in the distribution of material on school grounds.

....

(7) Distribution of written material that is obscence sic or pornographic, pervasively indecent and vulgar, libelous, invades the privacy of others or will cause substantial disruption of the proper and orderly operation of the school or school activities shall be prohibited. At the elementary and junior high school, written material that is of a religious nature is also prohibited. Students distributing such material shall be subject to discipline by the school administrators and/or the Board of Education.

On November 13, 1990, Plaintiff Megan Hedges, by and through her parents and next best friends, Kenneth and Nancy Hedges, filed a two-count complaint against District Superintendent Dick, Principal Golden, and the Wauconda Community Unit School District No. 118 ("School District"). The Complaint sought a declaration that the restrictions imposed by the Defendants, which would prevent Megan Hedges from distributing Issues and Answers within the school, were unconstitutional on their face, or, in the alternative, were unconstitutional as applied to the Plaintiff. Specifically, Hedges alleged that Section 7 of the Original Policy violated her First Amendment rights of freedom of speech and association. In addition, she requested an injunction prohibiting the Defendants from enforcing the Original Policy so that she would be allowed to distribute Issues and Answers pursuant to the time, place, and manner restrictions contained in the Original Policy. The Complaint also sought money damages.

A few days later, Plaintiff moved for a temporary restraining order to enjoin the Defendants from enforcing the Original Policy's prohibition on distributing material "of a religious nature." We denied Plaintiff's motion, but ordered expedited discovery. The Plaintiff filed a motion for a preliminary injunction, which also sought to enjoin the enforcement of Section 7 of the Original Policy. At a two-day hearing on the motion, we heard testimony and the arguments of counsel.

B. Hedges I

In an opinion of December 21, 1990 (Hedges I), we granted Plaintiff's Motion for a Preliminary Injunction.³ In particular, we found that Megan Hedges had demonstrated that she would suffer irreparable injury absent injunctive relief and that she had a very strong probability of success in demonstrating that her distribution of Issues and Answers did not violate Section 4 of the District's policy.⁴Hedges I, Mem. Op. at 23, 12. We also examined her chances of successfully challenging Section 7 and found that, although the Defendants probably could demonstrate a compelling state interest in prohibiting the distribution of some religious materials, the policy's blanket prohibition on all religious material was unconstitutionally overbroad. Id. at 20, 22. In reaching this conclusion, we employed a public forum analysis and made the preliminary — but what we now believe to be mistaken — determination that the Defendants had abandoned their earlier position that the school was a closed forum.

C. New Policy

In response to our opinion in Hedges I, the School District promulgated a new regulation (effective January 7, 1991). This policy, which was entitled "Interim Distribution Policy" ("New Policy"), reads (with emphasis added):

A. GENERALLY

It is beneficial to the educational mission of the school for junior high school students to express their own views concerning a wide variety of topics and issues and share them with other students in the school, even when these views may be unpopular or controversial. The student's right to express their own views in the school, however, are not coextensive with the rights of adults or even children in other settings and must be exercised in light of the special characteristics of the school environment. The school has the duty to insure that the manner in which these views are expressed and the views themselves do not conflict with the basic educational mission of the school. Therefore, student expression which may be disruptive of the orderly operation of the school or school activities, which violates the rights of others, which is socially inappropriate or inappropriate due to the maturity level of the students, or which expresses religious beliefs or points of view that students would reasonably believe to be sponsored, endorsed or given official imprimatur by the school will not be permitted.

B. STUDENT DISTRIBUTION OF NON-SCHOOL SPONSORED WRITTEN MATERIAL IN SCHOOL OR ON SCHOOL GROUNDS

When any student or students, who as an individual or a group, seek to distribute more than 10 copies of the same written material on one or more days in the

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