Hernandez v. Hanson

• Citation: 430 F. Supp. 1154
• Decision Date: 25 April 1977
• Docket Number: Civ. No. 75-0-174.
• Parties: Miguel HERNANDEZ et al., Plaintiffs, v. Leonard HANSON, as Principal of South High School, and on behalf of all other principals similarly situated, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

430 F. Supp. 1154

Miguel HERNANDEZ et al., Plaintiffs, v. Leonard HANSON, as Principal of South High School, and on behalf of all other principals similarly situated, et al., Defendants.

Civ. No. 75-0-174.

United States District Court, D. Nebraska.

April 25, 1977.

COPYRIGHT MATERIAL OMITTED

Robert V. Broom and Gregory V. Johnson, Omaha, Neb., for plaintiffs.

David M. Pedersen, Omaha, Neb., for defendants.

DENNEY, District Judge.

This matter comes before the Court upon the cross-motions of the parties for summary judgment, declaring unconstitutional and in violation of the First and Fourteenth Amendments to the United States Constitution and enjoining the enforcement of policies and regulations of the School District of Omaha, Nebraska, which require students to obtain prior approval before distributing literature on behalf of non-school sponsored organizations within the Omaha public schools. The case was brought pursuant to 42 U.S.C. § 1983. Jurisdiction is based upon 28 U.S.C. §§ 1343(3) and (4) and the power to grant declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2202.

Plaintiffs instituted this action on May 12, 1975, on their own behalf and as representatives of all students who are now or will be enrolled in the Omaha Public Schools and subject to the policies and regulations of the School District of Omaha and to the rules and regulations promulgated by individual school principals. The Court has previously certified the case as a class action pursuant to Fed.R.Civ.P. 23(a) and (b)(2) and has entered appropriate interlocutory relief.

Although affidavits have been submitted, the facts giving rise to the lawsuit are not relevant. Notwithstanding plaintiffs' challenge to the policies and regulations on their face and as applied, the Court is only concerned with the constitutional validity of the prior restraint regulations since plaintiffs are no longer students.¹

I.

Since the filing of this lawsuit, the School Board has, in good faith, promulgated new policies and regulations which are presently under challenge. This Court abhors the task of intervening in the conduct of matters within the province of local school authorities and will not interfere with the day to day operations of schools. However, when fundamental constitutional rights come into play, all creatures of the State, including the Boards of Education, must be subject to judicial scrutiny. See West Virginia State Board of Education v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).

Revised Policy 6.15, approved by the Board of Education on March 21, 1977, provides in relevant part as follows:

Students, staff members, or the facilities of the schools may not be used in any manner for advertising or promoting the interests of any community or non-school agency or organization without the approval of the Board of Education. Exceptions to the above rule are:

. . . . .

2. Any student seeking to distribute literature, fliers or announcements concerning non-school events or organizations to several other students must abide by the general guidelines established for this purpose contained in the Practices and Procedures of the Omaha Public Schools, copies of which are available from the building principal and/or the Office of the Superintendent of Schools.

. . . . .

Any appeal by a student from a determination of the Superintendent that the material the student submitted may not be distributed shall be heard and decided by the Board of Education within 5 school days of receipt by the Secretary of the Board of a written request for a hearing before the Board.

The Revised Practices and Procedures Concerning Flier Distribution in the Schools provide in relevant part as follows:

Requests for Distributing Fliers on Behalf of Non-school Sponsored Organizations — Requests received by the School District or by an individual building, from any student, agency or organization seeking permission to put up posters or distribute to several students literature, fliers or announcements to students concerning events, meetings or programs of non-school sponsored organizations, must follow the general guidelines listed below. Hopefully, the procedures outlined will assist in eliminating confusion, providing the activity greater opportunity for success. The school may cooperate in offering as many worthwhile opportunities to the students as are practical and consistent with the Policies and Regulations of the School District of Omaha.

1. The request, in writing should be submitted to the Office of the Superintendent of Schools, 3902 Davenport Street, Omaha, Nebraska 68131. Students may submit their written requests to the principal of their school who will forward those requests immediately to the Superintendent.

. . . . .

4. The person seeking permission to distribute fliers should provide as much advance notice as possible. The Office of the Superintendent will approve or reject the request within two school days of receipt of the request by the Superintendent, or, in the case of requests from students, within two school days of receipt by the building principal. Any request not acted upon within the time specified will be considered approved.

. . . . .

10. Only in the following circumstances will the distribution of fliers be prohibited:

a) When such distribution, whether because of the content of the flier or the manner of distribution, would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.

b) When the content of the flier is:

1) commercial in nature

2) sectarian

3) obscene; a flier is obscene for purposes of this prohibition if (i) the average person applying contemporary community standards would find that the flier, taken as a whole, appeals to the prurient interest of minors of the age to whom distribution is requested; (ii) the flier depicts or describes hard core sexual conduct 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; and (iii) the flier, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors of the age to whom distribution is requested.

4) libelous; a flier is libelous for purposes of this prohibition if it contains a false statement concerning another person which brings hatred, disgrace, ridicule or contempt on that person.

5) advocacy directed to inciting or producing imminent lawless action which advocacy is likely to incite or produce such action.

6) insulting or fighting words, the very utterance of which inflicts injury or tends to incite an immediate breach of the peace.

At the outset, it is important to note what this litigation does not involve. The plaintiffs do not challenge the constitutionality of the School Board's power to reasonably regulate the time, place and manner of distribution. "Just as in the community at large, reasonable regulations with respect to the time, the place, and the manner in which student groups conduct their speech-related activities must be respected." Healy v. James, 408 U.S. 169, 192-193, 92 S.Ct. 2338, 2352, 33 L.Ed.2d 266 (1972); See, also Jones v. Board of Regents, 436 F.2d 618, 620 (9th Cir. 1970). Nor do the regulations require prior approval of all written distributions by students. At issue is the constitutionality of regulations requiring prior approval of literature on behalf of nonschool sponsored organizations intended to be distributed by students and a prohibition on commercial and secular literature. Plaintiffs vigorously contend that prior approval is unconstitutional per se as a prior restraint in violation of the First Amendment.

II.

The importance of the issues presented in this sensitive area of the First Amendment cannot be denigrated. A public school is a market place of ideas and early involvement in debate and comment and free exchange is essential to the development of the democratic spirit necessary to the proper functioning of our government. Policy 6.22 of the School District itself recognizes this philosophy:

a. Controversial issues arise from conflicts within the cherished interests, beliefs, or affiliations of large groups of our citizens. Such issues involve important proposals or policies upon which our citizens hold different points of view. The American heritage and our established traditions are not controversial. Most of the school curriculum is composed of established truths and accepted values. Free discussion of controversial issues is the heart of the democratic process. Freedom of speech and free access to information are among our most cherished traditions. Only through the study of such issues — political, economic, or social — does youth develop abilities needed for citizenship in our democracy.

Nevertheless, free speech is not absolute and "the extent of its application may properly take into consideration the age or maturity of those to whom it is addressed." Quarterman v. Byrd, 453 F.2d 54, 57 (4th Cir. 1971). As Justice Stewart emphasized in his concurring opinion in Tinker v. Des Moines School District, 393 U.S. 503, 515, 89 S.Ct. 733, 741, 21 L.Ed.2d 731 (1969), First Amendment rights of children are not "coextensive with those of adults."

The Court's analysis must begin with the historic Tinker case. The Tinker Court apparently recognized the right of school administrators to block the distribution of literature if they reasonably "forecast substantial disruption of or material interference with school activities." 393 U.S. at 514, 89 S.Ct. at 740. The majority of Courts which have followed in the aftermath of Tinker and considered the validity of regulations regarding prior approval of student literature have held that such prior restraints are not unreasonable so long as procedural safeguards are present. Nitzberg v. Parks, 525 F.2d 378 (4th...