Rivera v. EAST OTERO SCHOOL DIST. R-1

• Decision Date: 14 September 1989
• Docket Number: Civ. A. No. 87-M-699.
• Citation: 721 F. Supp. 1189
• Parties: Alicia RIVERA, parent and representative of Ricardo Chavira; Doug Taylor, parent and representative of Jeffrey Taylor; and Virginia Lagergren, parent and representative of Dawn Lagergren, Plaintiffs, v. EAST OTERO SCHOOL DISTRICT R-1, Defendant.
• Court: U.S. District Court — District of Colorado

721 F. Supp. 1189

Alicia RIVERA, parent and representative of Ricardo Chavira; Doug Taylor, parent and representative of Jeffrey Taylor; and Virginia Lagergren, parent and representative of Dawn Lagergren, Plaintiffs, v. EAST OTERO SCHOOL DISTRICT R-1, Defendant.

Civ. A. No. 87-M-699.

United States District Court, D. Colorado.

September 14, 1989.

Larry Crain and Lynn M. Watwood, Jr., The Rutherford Institute, Brentwood, Tenn., and Robert A. Lees, Lees & Bath, Denver, Colo., for plaintiffs.

Ralph N. Wadleigh, LaJunta, Colo., and Thomas N. Alfrey and B. Epstein, Hall & Evans, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

MATSCH, District Judge.

This is an action by parents and students at La Junta High School (LJHS), operated by East Otero School District R-1 (the "District"), seeking relief from past and prospective application of an official policy concerning the distribution of literature in the District. The controversy arises from the efforts of the high school students to distribute to other students a free non-student newspaper called Issues and Answers published by Student Action for Christ, Inc., also known as The Caleb Campaign. Ricardo Chavira and Jeffrey Taylor were suspended for distributing that paper in violation of the subject policy. The complaint alleges that they and Dawn Lagergren desire to distribute the paper but are in apprehension of sanctions for violation of the policy.

The plaintiffs' claims include the contention that they are entitled to relief under 42 U.S.C. § 1983 because the defendant's policy violates the students' freedom of speech contrary to the constitutional limitations in the First Amendment made applicable to the defendant by the Fourteenth Amendment to the United States Constitution. The plaintiffs filed a motion for partial summary judgment declaring that the subject policy is unconstitutional on its face and as applied to the newspaper. The defendant has moved for summary judgment of dismissal of all of the plaintiffs' claims. It is clear from the briefs and extensive supporting materials that there are genuine issues of material fact prohibiting summary determination of the claims other than those asserted in the plaintiffs' motion for partial summary judgment. Accordingly, the questions now to be decided are whether the distribution of Issues and Answers by students to students in a non-disruptive manner comes within the protection of the First Amendment and whether the defendant's policy restricting distribution is in contravention of that constitutional limitation on governmental authority. At oral argument it was agreed that the copies of Issues and Answers submitted with the papers filed in support of the respective motions for summary judgment are representative of the newspaper. While the articles involve an array of subjects of interest to adolescents, it is fair to characterize their content as promoting non-denominational Christian principles. Plaintiffs are not, however, claiming any infringement of rights protected by the Free Exercise Clause of the First Amendment. Issues and Answers also has some political content.

The District adopted POLICY KJA on January 12, 1987. It reads as follows:

DISTRIBUTION/POSTING OF PROMOTIONAL LITERATURE

Distribution of printed noncurricula materials in the East Otero School District shall be allowed subject to the procedures and regulations as herein stated unless the material is "unacceptable" as hereinafter described.

The following shall be considered "unacceptable" material:

1. So-called "hate" literature that scurriously sic attacks ethnic, religious or any racial group.

2. Material that promotes hostility, disorder or violence.

3. Material that proselytizes a particular religious or political belief.

4. Materials designed for commercial purposes — advertising a product or service for sale or rent.

5. Material that is libelous, invades the rights of others or inhibits the functioning of the school, or advocates inference sic with the rights of any individual or with the normal operation of the school.

6. Material which in any way promotes, favors or opposes the candidacy of any candidate for election, or the adoption of any bond issue proposal, or any public question submitted at any general, municipal or school election. The prohibition will not apply on any election day or special election when the school is being used as a polling place.

7. Material that is obscene or pornographic as defined by pervading community standards throughout the district.

This policy governs noncurricula material and is not intended and shall not be interpreted to interfere with the prerogative of teachers to supplement and enrich text and reference book materials used in their courses with materials which are timely and up to date. However, no teacher shall distribute noncurricula materials in his class which are not intended to supplement the course work of his class without complying with the procedures which follow.

The superintendent shall present to any person or persons wishing to distribute printed noncurricula materials a copy of this policy and the accompanying procedures.

In the case of any student or students, a violation of the terms and conditions hereof shall result in disciplinary proceedings in accordance with Board policy.

In the event of any other person or persons, it shall be the policy of the Board of Education to proceed through the courts of law to obtain injunctive relief and damages, where applicable, for any unauthorized distributions of printed noncurricula materials.

Defendant's Exhibit B.

The implementation of that policy is governed by a regulation, KJA-R, which, in pertinent part, reads as follows:

Approval

Any group, organization, corporation, individual, club, society or association (hereinafter referred to as "person" or "persons") that wishes to distribute any printed noncurricula material in any public school in the East Otero School District shall submit the material to the superintendent of schools for approval a minimum of 48 hours prior to the proposed distribution. The superintendent shall approve distribution subject to the regulations which follow unless the superintendent determines that the material is "unacceptable" as defined in policy KJA*.

Defendant's Exhibit C.

That regulation provides for an appeal from denial of approval by the superintendent to the Board of Education and it includes time, place and manner restrictions which are not now challenged as unreasonable.

The defendant contends that the plaintiffs' First Amendment claim must be dismissed because LJHS is not a public forum. Accordingly, the restrictions of the policy do not involve any fundamental right and the court's inquiry is limited to whether the restrictions are reasonable. That analysis is fundamentally flawed because it ignores the holding in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) and it misreads Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988) and Bethel School Dist. v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986).

In the clearest possible language, the Supreme Court in Tinker recognized that students are protected by the Constitution in the school environment and that prohibitions of pure speech can be supported only when they are necessary to protect the work of the schools or the rights of other students. The most apt language in the Court's opinion is the following:

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit, said, school officials cannot suppress "expressions of feelings with which they do not wish to contend."

Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.1966).

393 U.S. at 511, 89 S.Ct. at 739.

The holding in Tinker did not depend upon a finding that the school was a public forum. The Court did say that "when a student is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions...." 393 U.S. at 512-13, 89 S.Ct. at 740. Thus, whether or not a school campus is available as a public forum to others, it is clear that the students, who of course are required to be in school, have the protection of the First Amendment while they are lawfully in attendance.

This case is different from Tinker in that it involves distribution of printed matter rather than oral communication, but writing is pure speech. See Texas v. Johnson, ___ U.S. ___, 109 S.Ct. 2533, 2540, 105 L.Ed.2d 342 (1989) ("The Government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word") (citations omitted). Peaceful distribution of literature is protected speech. See United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983) (leafletting is protected speech); Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943) (free speech includes right to distribute literature) (citing Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938)).

In Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), the Court approved the...