Nitzberg v. Parks

• Decision Date: 14 April 1975
• Docket Number: No. 74--1839,74--1839
• Citation: 525 F.2d 378
• Parties: Arline NITZBERG, as parent and on behalf of Sam Nitzberg, a minor, et al., Appellants, v. H. Emslie PARKS, President, Board of Education of Baltimore County, et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 378

525 F.2d 378

Arline NITZBERG, as parent and on behalf of Sam Nitzberg, a minor, et al., Appellants, v. H. Emslie PARKS, President, Board of Education of Baltimore County, et al., Appellees.

No. 74--1839.

United States Court of Appeals Fourth Circuit.

Argued Jan. 9, 1975.

Decided April 14, 1975.

Barbara Gold, American Civ. Liberties Union, Maryland Affiliate, Baltimore, Md., for appellants.

R. Bruce Alderman, County Sol., Eugene G. Ricks, Asst. County Sol. for the Bd. of Ed. of Baltimore County, Maryland, G. Warren Mix, Asst. County Sol., for appellees.

Before CLARK, Supreme Court Justice, ^* HAYNSWORTH, Chief Judge, and BRYAN, Senior Circuit Judge.

Mr. Justice CLARK:

This civil rights action under 42 U.S.C. § 1983 was brought in United States District Court after school officials of the Woodlawn Senior High School in Baltimore Co., Maryland, ordered two private student newspapers to cease publication in November of 1973. Appellants, the student publishers of the newspapers and their parents, alleged that Rule No. 5130--1--the Baltimore County Board of Education's statement of 'Students' Rights and Responsibilities'--violated the First and Fourteenth Amendments insofar as it authorized prior restraint of 'non-school literature.'

The case proceeded on stipulated facts, none of which are relevant to our resolution of this matter. ¹ The sole question is whether on its face Rule 5130--1 as presently stated meets the constitutional standards set forth in this Circuit's precedents, Quarterman v. Byrd, 453 F.2d 54 (1971), and Baughman v. Freienmuth, 478 F.2d 1345 (1973). We hold that it does not. ²

After the filing of this suit in December of 1973, the Baltimore County school board reexamined its original regulations governing on-campus distribution of non-school sponsored literature and produced a second version on January 24, 1974. The district court, however, found the new rules vague and overbroad and, in an opinion filed February 25, 1974, gave the Board two weeks to meet constitutional standards. On March 26, 1974, the district court reviewed the Board's third version, again found them wanting, and enjoined the Board from enforcing the rules. On May 17, 1974, the court continued the injunction and ordered revision of the fourth version. The Board again redrafted its rules, and on May 30, 1974, the district court approved the regulations and dissolved the injunction. This appeal followed.

Rule 5130.1(b) contains the Board's present policies regarding student publications and states in relevant part:

Literature may be distributed and posted by the student of the subject school in designated areas on school property as long as it is not obscene or libelous (as defined below) and as long as the distribution of said literature does not reasonably lead the principal to forecast substantial disruption of or material interference with school activities.

If a student desires to post or make a distribution of free literature which is not officially recognized as a school publication, the student shall submit such non-school material to the principal for review and prior approval. In exercising this right of prior restraint, principals shall follow the procedures specified in this policy. The principal shall render a decision and notify the student within two (2) pupil days of such submission. If the decision is in the negative, the principal shall state his reasons to the student in writing. During this period of review, any supply of the material may be retained by the student or may be left with the principal for safekeeping. Distribution of such material during the review and appeal period, or following a negative decision, shall be sufficient grounds for confiscation of such material and suspension of the student by the principal. If the student is dissatisfied with the decision of the principal with respect to the distribution of a non-school publication, the student may appeal this decision to the appropriate area assistant superintendent who shall render a decision, stating his reasons in writing, within three (3) pupil days of such appeal. If an administrator fails to act within the time periods specified in this paragraph, the student(s) who submitted the literature for review may distribute same. (Appeal from a decision of an assistant superintendent is to the superintendent of schools and thence to the Board of Education at the time of its next regularly scheduled meeting.)

The accompanying definitions of 'libel or libelous material', 'obscene or obscenity', and 'distribution' are set forth in the margin. ³ Appellants contend that these regulations, detailed though they may seem, remain unconstitutionally vague and overboard. We begin by restating the law of this Circuit in regard to such claims.

The controlling constitutional principles in student publication cases for this Circuit have been set forth by Judge Russell in Quarterman v. Byrd, 453 F.2d 54 (4th Cir. 1971), as follows:

Free speech under the First Amendment, though available to juveniles and high school students, as well as to adults, is not absolute * * *. (A)s Justice Stewart emphasized it in his concurring opinion in Tinker (v. Des Moines School Dist., 393 U.S. 503, 515, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)), First Amendment rights of children are not 'co-extensive with those of adults'. Similarly, a difference may exist between the rights of free speech attaching to publications distributed in a secondary school and those in a college or university. It is generally held that the constitutional right to free speech of public secondary school students may be modified or curtailed by school regulations 'reasonably designed to adjust those rights to the needs of the school environment.' * * * Specifically, school authorities may be appropriate regulation, exercise prior restraint upon publications distributed on school premises during school hours in those special circumstances where they can 'reasonably 'forecast substantial disruption of or material interference with school activities" on account of the distribution of such printed material. (453 F.2d at 57--58 (footnotes omitted)).

Subsequently, in Baughman v. Freienmuth, 478 F.2d 1345 (4th Cir. 1973), Judge Craven re-emphasized the necessity of 'narrow, objective, and reasonable standards' as the essential element in any scheme which required prior submission of material for approval before distribution and summarized the constitutional requirements as follows:

(a) Secondary school children are within the protection of the First amendment, although their rights are not coextensive with those of adults.

(b) Secondary school authorities may exercise reasonable prior restraint upon the exercise of students' first amendment rights.

(c) Such prior restraints must contain precise criteria sufficiently spelling out what is forbidden so that a reasonably intelligent student will know what he may write and what he may not write.

(d) A prior restraint system, even though precisely defining what may not be written, is nevertheless invalid unless it provides for:

(1) A definition of 'Distribution' and its application to different kinds of material;

(2) Prompt approval or disapproval of what is submitted;

(3) Specification of the effect of failure to act promptly; and,

(4) An adequate and prompt appeals procedure.

(478 F.2d at 1351.)

Accord Eisner v. Stamford Board of Education, 440 F.2d 803 (2d Cir. 1971) (Kaufman, J.).

It is clear that Rule 5130.1(b) was intended to come within the exception to the ban on prior restraints suggested in Tinker v. Des Moines School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). There the Court appeared to recognize the right of school administrators to block the distribution of literature which would substantially disrupt school work and discipline. Despite the protest of commentators, see Note, 'Prior Restraints in Public High Schools,' 82 Yale L.J. 1325 (1973), the Circuits which have dealt with the issue--with the exception of the Seventh--have accepted this interpretation of Tinker. See Riseman v. School Committee of Quincy, 439 F.2d 148 (1st Cir. 1971); Eisner v. Stamford Board of Education, 440 F.2d 803 (2d Cir. 1971); Quarterman v. Byrd, 453 F.2d 54 (4th Cir. 1971); Shanley v. Northeast Ind. Sch. Dist., Bexar County, Tx., 462 F.2d 960 (5th Cir. 1972); contra Fujishima v. Board of Education, 460 F.2d 1355 (7th Cir. 1972). Applying this test, we find the challenged regulation to be improperly drawn in several respects.

The central paragraph in Rule 5130.1(b) states that:

Literature may be distributed and posted by the student of the subject school in designated areas on school property as long as it is not obscene or libelous (as defined below) and as long as the distribution of said literature does not reasonably lead the principal to forecast substantial disruption of or material interference with school activities.

A crucial flaw exists in this directive since it gives no guidance whatsoever as to what amounts to a 'substantial disruption of or material interference with' school activities; and, equally fatal, it fails to detail the criteria by which an administrator might reasonably predict the occurrence of such a disruption. Though the language comes directly from the opinion in Tinker, we agree with Judge Fairchild's remark in Jacobs v. Board of School Commissioners, 490 F.2d 601 (7th Cir. 1973), vacated as moot, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975), that:

It does not at all all follow that the phrasing of a constitutional standard by which to decide whether a regulation infringes upon rights protected by the first amendment is sufficiently specific in a regulation to convey notice to students or people in general of what is prohibited. (490 F.2d at 605 (footnote omitted).)

In addition, we note that the definition of 'libelous' material contained in Rule 5130.1(c) fails to apply the standard of New York...