Leal v. Everett Pub. Sch.
| Decision Date | 19 February 2015 |
| Docket Number | Case No. 2:14–cv–01762 TSZ. |
| Citation | 88 F.Supp.3d 1220 |
| Parties | Michael LEAL, Plaintiff, v. EVERETT PUBLIC SCHOOLS, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
Conrad Reynoldson, Seattle, WA, Kevin T. Snider, Matthew B. McReynolds, Sacramento, CA, for Plaintiff.
Michael Alexander Patterson, Sarah E. Heineman, Patterson, Buchanan, Fobes & Leitch PS, Seattle, WA, for Defendants.
THIS MATTER comes before the Court on plaintiff's motion for a preliminary injunction, docket no. 8. This case presents a conflict between the First Amendment's promise of free speech and a school district's interest in adopting policies aimed at maintaining orderly schools and educating our students. Plaintiff is a student who wishes to pass out religious literature to his classmates during the school day. Defendants are the school district and its administrators that have adopted a policy that restricts when and where students may distribute written materials and requires that these materials have been written or produced by a student. Plaintiff disagrees with this policy and has sought a ruling prohibiting defendants from enforcing it. On December 2, 2014, the Court denied plaintiff's motion for a temporary restraining order and deferred ruling on plaintiff's motion for the preliminary injunction pending additional briefing. Min. Ord. (docket no. 15). Having considered all the briefs filed in this matter and the argument of counsel at the hearing on January 21, 2015, the Court concludes that plaintiff has not made the requisite showing for a preliminary injunction. Accordingly, plaintiff's motion is denied.
Plaintiff Michael Leal is a senior at Cascade High School in Everett, Washington, which is part of the Everett Public Schools system (the “School District”). Compl. (docket no. 1) ¶ 1. Plaintiff, who identifies as a member of the Christian faith, wishes to communicate the claims of his faith with his peers on school property during the school day by passing out religious materials.Id. ¶¶ 14–15. Doing so, however, violates a School District policy. This policy provides in relevant part, as follows:
The following guidelines are in effect in each school building:
Heineman Decl. (docket no. 13) Ex. 5.
To date, plaintiff has been disciplined several times for violating this and other school policies. Compl. (docket no. 1) ¶¶ 25–28, 33–36. Plaintiff also alleges that he has been threatened with expulsion. Id. ¶ 37. In response, plaintiff filed suit against the School District and several school administrators under 42 U.S.C. § 1983 on the basis that defendants have violated his rights to free speech and expression under the First Amendment. Id. ¶¶ 61–65.
Plaintiff claims that two aspects of the School District's policy are facially unconstitutional. In this motion, plaintiff seeks a preliminary injunction enjoining the School District from (1) restricting the distribution of literature to the school's entrances and exits before and after school, and (2) requiring that this literature be written or produced by a student.
To obtain a preliminary injunction, plaintiff must “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Under the Ninth Circuit's sliding scale approach, however, a plaintiff's failure to establish a likelihood of success on the merits is not fatal to its motion. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011). Rather, these factors are balanced such that a preliminary injunction could be issued where the plaintiff has raised “serious questions going to the merits,” the “balance of hardships that tips sharply towards the plaintiff,” “there is a likelihood of irreparable injury[,] and [ ] the injunction is in the public interest.” Id. at 1135.
Generally, to succeed on a facial challenge, the challenger must establish that “ ‘no set of circumstances exists under which the Act would be valid.’ ” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ). In the context of the First Amendment, however, facial challenges fall within what is known as the overbreadth doctrine. See Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The overbreadth doctrine “is an exception to [the] normal rule regarding facial challenges.” Virginia v. Hicks, 539 U.S. 113, 118, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). Under this exception, rather than having to establish that a challenged policy has no possible constitutional application, the plaintiff bears the lower burden of showing that “a ‘substantial number’ of its applications are unconstitutional, ‘judged in relation to the [its] plainly legitimate sweep.’ ” Washington State Grange, 552 U.S. at 450 n. 6, 128 S.Ct. 1184 (quoting New York v. Ferber, 458 U.S. 747, 769–72, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) ).
The School District's policy imposes restrictions on the permissible time, place, and manner of a student's distribution of written materials on school property. The parties disagree as to what standard should be applied to determine whether these restrictions are constitutional. Plaintiff contends that the “substantial disruption” test from Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), should apply. Defendants argue that Tinker is inapplicable to plaintiff's facial challenge of the policy because unlike the present case, Tinker addressed a viewpoint-discriminatory policy.
In Tinker, a group of students in Des Moines, Iowa, decided to protest America's involvement in the escalating conflict in Vietnam by, among other things, wearing black armbands. Id. at 504, 89 S.Ct. 733. When officials at their school learned of the planned demonstration, they enacted a policy prohibiting the display of black armbands at the school. Id. The plaintiffs in Tinker challenged the school's policy as unconstitutional. See id. at 504–05, 89 S.Ct. 733. The Supreme Court struck down the policy, holding that a restriction of this type could not be upheld absent “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” Id. at 514, 89 S.Ct. 733. In reaching this conclusion, the Court recognized that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id. at 506, 89 S.Ct. 733.
Since Tinker, the Supreme Court has declined to apply the “substantial disruption” test in a number of cases. In Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), the Supreme Court did not apply Tinker in upholding the suspension of a student who made “lewd and indecent” comments during a school assembly. Id. at 685, 106 S.Ct. 3159. Two years after Fraser, the Supreme Court carved out another exception from Tinker, Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), that school administrators enjoy greater discretion in restricting student speech where the speech is “school-sponsored.” Id. at 272, 108 S.Ct. 562. In doing so, the Supreme Court applied the forum-based analysis described in Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 47, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). More recently, in Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007), the Supreme Court held that a school administrator had not violated the free speech rights of a student who was disciplined for displaying a banner that read “BONG HiTS 4 JESUS” at a school event, id. at 409–10, 127 S.Ct. 2618, because schools may prohibit “speech that can reasonably be regarded as encouraging illegal drug use,” id. at 397, 127 S.Ct. 2618.
Plaintiff argues that these cases make clear that if speech does not fall within one of the exceptions recognized by Fraser, Kuhlmeier, or Morse, any restriction must be struck down unless the school satisfies Tinker' s “substantial disruption” standard. The Supreme Court's post-Tinker jurisprudence fails to support plaintiff's position. The Supreme Court has never held that Tinker is the appropriate analytical framework for the consideration of viewpoint-neutral regulations. Rather, a close reading of these cases suggests just the opposite. For instance, in Fraser, the Supreme Court explicitly distinguished Tinker, noting that “[u]nlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint.” Fraser, 478 U.S. at 685, 106 S.Ct. 3159. Rather, the Supreme Court held in Fraser that school...
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