Slotterback v. Interboro School Dist., 90-2559.

• Decision Date: 13 May 1991
• Docket Number: No. 90-2559.,90-2559.
• Citation: 766 F. Supp. 280
• Parties: Scott SLOTTERBACK, a Minor, by and through his Parents and Legal Guardians Charles SLOTTERBACK and Theresa Slotterback v. INTERBORO SCHOOL DISTRICT.
• Court: U.S. District Court — Eastern District of Pennsylvania

766 F. Supp. 280

Scott SLOTTERBACK, a Minor, by and through his Parents and Legal Guardians Charles SLOTTERBACK and Theresa Slotterback v. INTERBORO SCHOOL DISTRICT.

No. 90-2559.

United States District Court, E.D. Pennsylvania.

May 13, 1991.

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J. Michael Considine, Jr., James P. O'Brien, West Chester, Pa., for plaintiff.

Michael I. Levin, Cleckner and Fearen, Abington, Pa., Thomas L. Kelly, Gibbons, Buckley, Smith, Palmer & Proud, P.C., Media, Pa., for defendant.

MEMORANDUM OF DECISION

McGLYNN, District Judge.

Adjustment of the inevitable conflict between free speech and other interests is a problem as persistent as it is perplexing. This case involves the tension between the first amendment free speech claim of a high school student distributing literature and a school district's claim that the establishment clause of the first amendment overrides free speech guarantees in the high school context. The student seeks declaratory and injunctive relief grounded on the first and fourteenth amendments, as well as on 42 U.S.C. § 1983. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1343. The court resolves the conflict between the two constitutional guarantees in favor of the student.

Plaintiff Scott Slotterback is a sixteen-year-old eleventh grade student at Interboro Senior High School (ISHS) in Prospect Park, Pennsylvania. Plaintiff's Deposition at 6; Defendant's Brief at 1. Defendant Interboro School District is a public school district with administrative offices in Prospect Park. Second Amended Complaint ¶ 4.

Encouraged by his church to bear witness to his Christian faith, plaintiff began to distribute religious tracts at ISHS during the autumn of his sophomore year, 1989-90. Plaintiff's Deposition at 17, 27-32; Defendant's Brief at 1. He was joined by a friend, Keith Ferry, who is a grade below plaintiff at ISHS. Ferry Deposition at 6, 9, 10; Defendant's Brief at 2. Designed like comic strips, the tracts depicted a twentieth-century man's death and resurrection. Under each frame was a quotation from the Bible. Defendant's Brief, Exhibit 1.

According to plaintiff, he distributed tracts to students in the hallways and cafeteria area of ISHS approximately forty-four times between November 1989 and May 1990. Plaintiff's Deposition at 23, 26-27, 32. Only once did he distribute in a classroom. Id. at 31. Ferry, on the other hand, testified at his deposition that he began distributing in the hallways and cafeteria area of the school in September and October 1989, and that he distributed in a classroom twice during that period. Ferry Deposition at 20-24. Between October 1989 and May 1990, Ferry distributed tracts over a dozen times in the hallways and cafeteria area, in addition to leaving tracts on the school's bathroom sink, on the bathroom toilets, and at a bus stop. Id. at 32-33.

Several teachers testified that the distributions affected activities at ISHS.

Resource room instructor Nancy Miller stated that in October 1989 she saw a student holding a tract in class and chiding plaintiff about its contents. Miller Affidavit at 1. When instructed to put the tract away, the student did so, and classroom instruction began. Id. Throughout the 1989-90 school year, Miller found tracts at plaintiff's station in her classroom and on radiator covers in the hallways. In addition, Miller observed plaintiff place tracts on a school staircase. Id. at 2-3. According to Miller, "The littering of these booklets exceeded that of any other articles left by students in the hallways." Id. at 3.

English teacher Anne Marie Orloff stated that she found students reading tracts in her class twice in October 1989. The students put the tracts away when asked to do so. Orloff Affidavit at 1-2. Ferry was in the classroom on both occasions.

A third teacher, Denise Englander-Kraut, testified that she witnessed several incidents related to distributions, although the exact chronology of the incidents is unclear.

On one occasion, she confiscated a tract that a student was reading during classroom instruction. Kraut Deposition at 3-9. On another occasion, she observed plaintiff and between four and nineteen other students gathered in a hallway and blocking student traffic between class periods. Id. at 11-28. The students dispersed when asked to do so. Kraut did not remember seeing tracts in the students' possession. Id. at 17.

On a separate occasion, one of Kraut's classes was delayed five minutes when a student arrived late. Id. at 29-37. The student was carrying one of plaintiff's tracts and blamed the tardy arrival on a blockage in the hallways. Id.

Two further incidents involved Ferry. The first occurred while Ferry was attending one of Kraut's classes. Between ten and fifteen minutes before class ended, Kraut completed her instruction and gave the class free time. Ferry then distributed tracts to students. Kraut confiscated the tracts and sent Ferry to meet with the assistant principal at ISHS, Albert Chelius. Ferry Deposition at 25-27. A week later, at the end of one of Kraut's classes, approximately twenty tracts fell out of Ferry's pocket while he was preparing to leave class. Kraut confiscated the tracts and took them to the school's principal. Id. at 28; Kraut Deposition at 55-56.

Finally, Kraut testified that on another occasion plaintiff and between four and nineteen other students caused a blockage in the school's hallways when they distributed tracts between class periods to passing students.¹ Kraut stated that, when she told the students to go to their classes, plaintiff became belligerent and used obscenities. Kraut Deposition at 38-40. Kraut then took plaintiff to Principal Nicholas Cianci's office.²

When plaintiff arrived at Cianci's office, Cianci ordered him to cease his hallway distributions or risk suspension. Subsequently, Cianci consulted the school district's solicitor about plaintiff's conduct. Meanwhile, plaintiff continued his distributions. Cianci Deposition at 17, 25; Plaintiff's Motion ¶¶ 2-3; Defendant's Brief at 3.

Cianci then met again with plaintiff and handed him a handwritten note setting forth the permissible time, place, and manner of future distributions. Such distributions would be permitted only twice during the remainder of the school year; would be restricted to the area around the exit doors of ISHS; and would have to occur after school hours, without "arguments, fights, or litter." Cianci was to be notified in advance of the distribution dates chosen. Defendant's Brief at 3, Exhibit 4; Plaintiff's Motion ¶ 3; Cianci Deposition at 25-26.

Plaintiff filed this action on April 13, 1990.

Between April and July 1990, Interboro School District developed an official "Procedure for Distribution of Non-School Written Materials" (the new policy) (see Appendix). See Cianci Deposition at 32-36. Designed to regulate the distribution of written material that is not "part of the curricular or extracurricular programs of the Interboro School District," the new policy sets forth the following procedure for the distribution of such nonschool material within the district's schools: (1) Parties desiring to distribute such material must present a sample to the building principal three days prior to the day proposed for distribution; (2) The building principal or his nominee is then to review the material and approve its distribution in writing, unless the material falls within one of seven prohibited categories listed in a "Schedule A"; (3) Once distribution is approved, the party must advise the principal of the days of distribution; (4) Such distribution is to be made "at the time of normal dismissal of the students from the building(s) where the distribution is to occur, ... inside or outside the exit doors of the building(s)," on as many days as requested, but in a "peaceful ... non-argumentative manner," without littering; and (5) If the principal "determines that such distribution materially and substantially interferes with the safe and orderly passage of students ... and/or materially and substantially interferes with the requirements for appropriate discipline in the operation of such building(s)," then the principal must terminate the distribution by giving written notice to the distributing party. The new policy provides various sanctions for violations of the procedure, which range from a simple written notice to prosecution for criminal trespass.

Among the seven categories of "unacceptable non-school written material(s)" listed in Schedule A are:

. . . . .

2. Material(s) that promotes hostility, disorder, violence or the commission of a crime.

3. Material(s) that proselytizes a particular religious or political belief.

. . . . .

5. Material(s) that ... invades the rights of others or inhibits the functioning of the school, or advocates interference with the rights of any individual or with the normal operation of the school.

Although ISHS students were not informed of the new policy until late November 1990, and although the policy has yet to appear in the school district's handbooks, the policy is "the current accepted procedure for distribution of nonschool written materials at ISHS...." Cianci Deposition at 38; see also Defendant's Brief at 3; Staub Deposition at 16.

In recent years, students belonging to extracurricular groups at ISHS — most of which have faculty advisors — have been permitted to distribute literature at the school. For example, Students Against Drunk Driving (SADD), which has a faculty advisor, has been allowed to distribute group literature at least two times each school year, during lunchtime, at tables outside the school cafeteria. Defendant's Supplemental Answers to Plaintiff's Interrogatories, No. 6; Defendant's Brief at 4.³ Assistant Principal Chelius testified that SADD materials have, on occasion, been found littered. Chelius Deposition at 27.

In addition, several community groups — the Boy Scouts of...