Poling v. Murphy

• Decision Date: 28 June 1989
• Docket Number: No. 88-5538,88-5538
• Citation: 872 F.2d 757
• Parties: , 53 Ed. Law Rep. 37 Dean POLING, Plaintiff-Appellant, v. Ellis MURPHY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 757

872 F.2d 757

57 USLW 2621, 53 Ed. Law Rep. 37

Dean POLING, Plaintiff-Appellant, v. Ellis MURPHY, et al., Defendants-Appellees.

No. 88-5538.

United States Court of Appeals Sixth Circuit.

Argued Feb. 7, 1989.

Decided April 18, 1989.

Rehearing and Rehearing En Banc Denied June 28, 1989.

Penny J. White (argued), Johnson City, Tenn., for plaintiff-appellant.

David R. Shults, Erwin, Tenn., William C. Bovender, Kingsport, Tenn., Nathaniel R. Coleman, Jr., Thomas J. Garland (argued), Milligan, Coleman, Fletcher, Gaber & Kilday, Greenville, Tenn., for defendants-appellees.

Before ENGEL, Chief Judge, and MERRITT and NELSON, Circuit Judges.

DAVID A. NELSON, Circuit Judge.

The main question presented in this appeal is whether the Federal Constitution gives a high school student license to make admittedly "discourteous" and "rude" remarks about his schoolmasters in the course of a speech delivered at a school-sponsored assembly. Until recent years, lawyers and educators alike might have found it puzzling that such a question should even be asked. Not today; the question is a serious one, under contemporary constitutional concepts, but on the factual record before us in this case, we think the answer is fairly obvious.

As the Supreme Court held last year in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, ----, 108 S.Ct. 562, 571, 98 L.Ed.2d 592, 606 (1988), "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." (Footnote omitted.) Civility is a legitimate pedagogical concern, in our view, and we shall affirm the summary judgment that the district court entered in favor of the defendants in this case.

I

Unicoi County High School, in Erwin, Tennessee, is a public high school with a total enrollment of about 875 students. Each spring the school conducts an election at which officers are chosen for the school's student council. Candidates for president of the council come from the school's junior class, and candidates for vice-president from the sophomore class.

In May of 1987 plaintiff Dean Poling, an honor student who was subsequently to become president of his senior class, was one of about a dozen juniors who had qualified as candidates for the Unicoi High student council presidency. It was customary for such candidates to give campaign speeches at a school assembly held shortly before the election. Except for pupils with excused absences, attendance at the assembly was mandatory for all members of the student body.

According to Mrs. Barbara Ollis, a guidance counselor who served as one of two faculty sponsors of the student council, it had long been the practice for faculty sponsors to review candidates' speeches in advance of delivery. About a week before the 1987 election campaign assembly, therefore, Mrs. Ollis met with the student candidates, including Dean Poling, and told them to submit drafts of their speeches to her for review. The deadline she set was Thursday, May 7, the day before the assembly. Mrs. Ollis emphasized to the candidates, according to her affidavit, "how important it was, especially for the President of the Student Council, to work in a cooperative way with the Administration in order that the Student Council could be effective in carrying out its function in bringing about changes which it thought would be appropriate."

As instructed, Dean Poling brought his proposed speech to Mrs. Ollis for review on Thursday afternoon, May 7. Mrs. Ollis read the speech "very carefully," as she later attested, because it contained a "sick-baby joke" that initially struck her as being in dubious taste. The proposed speech read as follows:

"Hi, I'm Dean Poling and I'm running for president of the Student Council.

It's a common practice of politicians to cut down each other. Instead of doing this, I'm going to cut down you, the audience. Why am I going to do this? Because you idiots are too darn gullible. For example, what is black and blue and wrapped in plastic? A baby in a trash bag, of course.

I just made you laugh at something incredibly sick. If I can do this to you, then the administration could probably take advantage of you also. For example, have you noticed that each year there are less and less assemblies? How many of you would like at least a chance at open campus? Would you like a better chance of having the prom in Johnson City? Is there something in this school you would like changed? The administration plays tricks with your mind and they hope you won't notice. Because of the administration's iron grip, our school has been kept behind other schools like Science Hill. If you want to break this grip, vote for me for president. I can try to bring back student rights that you have missed and maybe get things that you always wanted. All you have to do is vote for me, Dean Poling!

Thanks."

Mrs. Ollis, a former teacher of English, made a grammatical correction in the text of the speech, changing "less and less assemblies" to "fewer and fewer assemblies." She also placed a mark beside the sentence that referred to "the administration's iron grip" and told Dean, as he later attested, "change this and your speech will be okay."

Change it he did. As delivered at the assembly on Friday, May 8, the speech had this peroration:

"The administration plays tricks with your mind and they hope you won't notice. For example, why does Mr. Davidson stutter while he is on the intercom? He doesn't have a speech impediment. If you want to break the iron grip of this school, vote for me for president. I can try to bring back student rights that you have missed and maybe get things that you have always wanted. All you have to do is vote for me, Dean Poling."

When Dean gave his revised speech, according to Mrs. Ollis, many of the students jumped up at the reference to Mr. Davidson (the assistant principal in charge of discipline at the school), clapped their hands, and yelled things like "way to go, Dean," and "we don't like him either." ¹ The clapping, yelling, and so forth did not go "above or beyond that present for any of the candidates," according to several other affiants, and Mrs. Ollis may or may not have been guilty of exaggeration when she swore, as she did in her affidavit, that the Davidson remark "brought the house down." Be that as it may, the remark unquestionably brought down the ire of the school's principal, defendant Ellis Murphy. "I was quite upset," Mr. Murphy stated, adding that "I thought that the content of this speech was inappropriate, disruptive of school discipline, and in bad taste."

At the conclusion of the assembly, according to Dean Poling's affidavit,

"Mr. Murphy told me that he did not like my speech and that it was in bad taste. I responded, 'I am sorry [you didn't like it] but it got me votes.' Mr. Murphy said it did not matter that it got me votes because it was in bad taste."

Mr. Murphy's affidavit says that Dean volunteered to apologize to Mr. Davidson. This proposal met with Murphy's enthusiastic approval, and the record contains no indication that Dean failed to make the promised apology to Mr. Davidson.

Later in the morning of the assembly, Mrs. Ollis tells us in her affidavit, two of the other student candidates came to her office at different times and complained that Dean Poling had gained an unfair advantage in the election by saying what he had said about Mr. Davidson. This opinion was also expressed by the incumbent student council president, a member of the senior class. Principal Murphy, the incumbent president, and both of the faculty sponsors participated in a mid-morning conference at which "[i]t was the consensus that Dean Poling should be declared ineligible to run...." Superintendent of Schools Ron Wilcox subsequently concurred in the decision to declare Dean ineligible.

Dean and his father, Mr. Roy Poling, a minister and substitute teacher, met with Mrs. Ollis and Principal Murphy in the latter's office that Friday afternoon. The Polings were informed that Dean had been disqualified, and a lengthy discussion ensued. Principal Murphy, according to his affidavit, commented on Dean's alleged "disobedience of instructions, the disruptive effect he had had on the authority of the Administration, the insensitivity that he had shown by the derogatory remarks that he had made in public about Assistant Principal Davidson and the bad taste he had shown generally." Mr. Murphy also alluded to a vice-presidential campaign speech that Dean had made the year before, for which Dean was said to have been reprimanded because "it was given in black language (the type used by stand-up comics) ... that offended many people." (There were no black students at Unicoi, and it does not appear that Dean had consciously intended to offend anyone in the earlier speech.)

With respect to the comment on Mr. Davidson and his "stutter," Dean's father himself expressed the view that "it was very discourteous." Mr. Poling explained, however, that Dean "was not attacking Mr. Davidson, but the administration." The administration, in the person of Principal Murphy, remained unmoved; the disqualification was not revoked, and the election went forward on Monday, May 11, with a reduced field of candidates.

To make the election more realistic, Mrs. Ollis had arranged to rent two voting machines from the Unicoi County Election Commission. Mrs. Ollis planned, at one point, to prepare new ballots omitting the names of Dean Poling and a student named Beth Edens, who had withdrawn as a candidate at the instance of her mother. Mrs. Ollis was told, however, that the use of new ballots would result in a doubling of the election commission's charges, so on the morning of the election she had the following announcement read over the school's public address system during the regular daily...