Henerey v. City of St. Charles

• Citation: 200 F.3d 1128
• Decision Date: 21 April 1999
• Docket Number: No. 98-3439,98-3439
• Parties: (8th Cir. 1999) ADAM HENEREY, BY AND THROUGH HIS PARENT AND NEXT FRIEND MICHAEL HENEREY, APPELLANT, v. CITY OF ST. CHARLES, SCHOOL DISTRICT; JERRY COOK, PRINCIPAL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; DAVID WATSON, ASSISTANT PRINCIPAL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, APPELLEES. Submitted:
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1128

200 F.3d 1128 (8th Cir. 1999)

ADAM HENEREY, BY AND THROUGH HIS PARENT AND NEXT FRIEND MICHAEL HENEREY, APPELLANT, v. CITY OF ST. CHARLES, SCHOOL DISTRICT; JERRY COOK, PRINCIPAL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; DAVID WATSON, ASSISTANT PRINCIPAL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, APPELLEES.

No. 98-3439

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: April 21, 1999

Decided: December 29, 1999

Appeal from the United States District Court for the Eastern District of Missouri. [Copyrighted Material Omitted] Before Richard S. Arnold and Wollman,¹ Circuit Judges, and Wolle,² District Judge.

Wollman, Chief Judge.

Adam Henerey appeals from the district court's³ grant of summary judgment in favor of the City of St. Charles School District (District) in this 42 U.S.C. § 1983 action based on a claimed violation of the First Amendment. We affirm.

I.

In March 1997, Henerey, then a sophomore at St. Charles High School, applied to run for junior class president in an upcoming student council election. Although candidacy was open to all members of the sophomore class, those seeking to run were required to meet with Mary Stodden, the student council advisor, and to sign a contract of obligation. Under the terms of the contract, candidates agreed to obey all school rules. After Henerey signed the contract, a member of the student council advised him that all campaign flyers and posters had to be approved by the administration prior to distribution.

The campaign officially began on April 7, 1997. Henerey obtained approval from the administration for his campaign slogan, "Adam Henerey, The Safe Choice." On the evening of April 7, Henerey was informed by Stodden that other candidates had complained that his posters had been posted over theirs and that references to other candidates were demeaning. Stodden then told Henerey that all materials needed to be approved by the administration.

On the morning of April 10, 1997, the day of the election, Henerey handed out in the school hallways some eleven condoms attached to stickers bearing his campaign slogan. He had given the administration no prior indication that he planned to distribute condoms or that his campaign would in any way involve sex-related topics.

As Ms. Stodden was counting the ballots, a student complained to her about Henerey's distribution of condoms. Ms. Stodden in turn relayed the complaint to Dr. Jerry Cook, the school principal, who determined that Henerey should be disqualified from the student election for his failure to comply with School Board Rule KJ-R, which required students to get prior approval from the school principal or assistant principal before distributing any materials. A subsequent count of the votes revealed that Henerey had received a majority of the votes for junior class president.

Henerey then filed this action, alleging that the District violated 42 U.S.C. § 1983 by suppressing his First Amendment right to free speech. The district court found that although a material dispute existed whether Henerey's conduct constituted constitutionally protected speech, the rule restricting the types of electioneering materials that could be distributed was constitutional. The court concluded that the student election was a school-sponsored activity that took place in a nonpublic forum and that Dr. Cook's decision to disqualify Henerey for his failure to comply with Rule KJ-R was reasonably related to the school's legitimate pedagogical goals. Accordingly, it granted the District's motion for summary judgment.

II.

We review a grant of summary judgment de novo. See Hossaini v. Western Missouri Med. Ctr., 140 F.3d 1140, 1142 (8th Cir. 1998). Summary judgment should be granted if the evidence, viewed in the light most favorable to the nonmoving party, indicates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. See id.; Fed. R. Civ. P. 56(c).

Although students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969), the Constitution does not compel "teachers, parents, and elected school officials to surrender control of the American public school system to public school students." Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986) (quoting Tinker, 393 U.S. at 526 (Black, J., dissenting)). The constitutional rights of public school students "are not automatically coextensive with the rights of adults in other settings," Fraser, 478 U.S. at 682, and a school need not tolerate speech that is inconsistent with its pedagogical mission, even though the government could not suppress that speech outside of the schoolhouse. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (citing Fraser, 478 U.S. at 685); Poling v. Murphy, 872 F.2d 757, 762 (6th Cir. 1989) ("Limitations on speech that would be unconstitutional outside the schoolhouse are not necessarily unconstitutional within it."). Therefore, courts must analyze First Amendment violations alleged by students "in light of the special characteristics of the school environment." Hazelwood, 484 U.S. at 266 (quoting Tinker, 393 U.S. at 506).

Purely individual speech by students constituting "personal expression that happens to occur on the school premises" is subject to a high degree of First Amendment protection. Hazelwood, 484 U.S. at 271. However, school officials may restrict even individual student expression that "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school," or that "would substantially interfere with the work of the school or impinge upon the rights of other students." Tinker, 393 U.S. at 509 (citations and internal quotation marks omitted).

When the expressive conduct at issue occurs in the context of a school-sponsored activity that is not also a public forum, the authority of schools to exercise control over the content of speech is at its greatest. See, e.g., Hazelwood, 484 U.S. at 276 (school may censor official student newspaper); Fraser, 478 U.S. at 678 (school may ban sexually suggestive language in speech before high school assembly); Lacks v. Ferguson Reorg. Sch. Dist. R-2, 147 F.3d 718, 724 (8th Cir. 1998) (school may ban profanity in creative writing class), cert. denied, 119 S.Ct. 1158 (Mar. 8, 1999); Poling, 872 F.2d at 764 (school may ban insulting references in student council election speech). In the absence of a public forum, school officials may limit a student's speech in a school-sponsored activity if the limitation is "reasonably related to legitimate pedagogical concerns." Hazelwood, 484 U.S. at 273.

A.

1.

Henerey argues that the campaign for class president must be considered a forum for public expression. The nature of the forum affects the degree of protection the First Amendment affords to expressive activity, even within the public school setting. See, e.g., Hazelwood, 484 U.S. at 267 (conducting forum analysis as first step in addressing student speech claim); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 44 (1983) ("The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue."); Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1540 (7th Cir. 1996) (prior restraint of student speech not unconstitutional in nonpublic forum).

Although school facilities are traditionally deemed nonpublic fora, they may be designated public when school authorities have a policy or practice of opening them for indiscriminate use by the general public, or by some segment of the public such as student organizations. See Good News/Good Sports Club v. School Dist. of the City of Ladue, 28 F.3d 1501, 1513 (8th Cir. 1994) (citing Hazelwood, 484 U.S. at 267). "The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse." Hazelwood, 484 U.S. at 267 (quoting Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 802 (1985)).

Here, the District did not open the campaign to the public, and it obviously intended to control the speech associated with the student election. Only enrolled students were eligible for candidacy in the election, and those who sought an elected position were required to sign an agreement stating that they would obey school rules. In addition, all campaign materials had to be approved prior to their distribution or use. Thus, because there is no evidence that the school intended by "policy or practice" to relinquish its control over the election and designate it a forum for public expression, see Good News, 28 F.3d at 1513, we conclude that the election was conducted within the context of a nonpublic forum.

2.

The next question is whether Henerey's expression was school-sponsored speech or independent student speech. See Hazelwood, 484 U.S. at 270-71. A school may exercise greater control over student speech uttered during participation in a school-sponsored activity than that expressed during an independent activity because "students, parents, and members of the public might reasonably perceive [the school-sponsored speech] to bear the imprimatur of the school." Id. at 271. Such control also "assure[s] that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school." Id. Although to be considered "school-sponsored," expressive activities must be "curricular" in a broad sense, they need not "occur in a traditional classroom setting, so long as they are supervised...