Williams v. Spencer

• Decision Date: 12 June 1980
• Docket Number: No. 78-1590,78-1590
• Parties: Gregory J. WILLIAMS, Individually and by his mother, Andrea M. Williams, and in his capacity as co-editor of the "Joint Effort"; and Mark I. Gutstein, Individually and by his father, Martin Gutstein, and in his capacity as co-editor of the "Joint Effort", Appellants, v. Elizabeth SPENCER; Herbert Benington; Blair Hewing; Verna Fletcher; Marian Greenblatt; Roscoe Nix; Dr. Daryl Shaw, Individually and in their official capacity as Members constituting the Montgomery County Board of Education; and Dr. Charles M. Bernardo, Individually and in his capacity as Superintendent of Montgomery County Public Schools; and Dr. George B. Thomas, Individually and in his capacity as Area II Assistant Superintendent of Montgomery County Public Schools; and Dr. Thomas P. Marshall, Individually and in his capacity as Principal of Springbrook High School; and Austin Patterson, Individually and in his capacity as Administrative Assistant and/or Building Monitor, Springbrook High School, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1200

622 F.2d 1200

Gregory J. WILLIAMS, Individually and by his mother, Andrea M. Williams, and in his capacity as co-editor of the "Joint Effort"; and Mark I. Gutstein, Individually and by his father, Martin Gutstein, and in his capacity as co-editor of the "Joint Effort", Appellants, v. Elizabeth SPENCER; Herbert Benington; Blair Hewing; Verna Fletcher; Marian Greenblatt; Roscoe Nix; Dr. Daryl Shaw Individually and in their official capacity as Members constituting the Montgomery County Board of Education; and Dr. Charles M. Bernardo, Individually and in his capacity as Superintendent of Montgomery County Public Schools; and Dr George B. Thomas, Individually and in his capacity as Area II Assistant Superintendent of Montgomery County Public Schools; and Dr. Thomas P. Marshall, Individually and in his capacity as Principal of Springbrook High School; and Austin Patterson, Individually and in his capacity as Administrative Assistant and/or Building Monitor Springbrook High School, Appellees.

No. 78-1590.

United States Court of Appeals Fourth Circuit.

Argued May 9, 1979.

Decided June 12, 1980.

Michael D. Simpson, Student Press Law Center, Washington, D. C. (Michael S. Shelton, Cohen, Abeloff & Staples, Richmond, Va., on brief), for appellants.

Paul V. McCormick, Rockville, Md., for appellees.

Before FIELD, Senior Circuit Judge, and WIDENER and HALL, Circuit Judges.

WIDENER, Circuit Judge:

Gregory J. Williams and Mark I. Gutstein, students at the time of filing this action at Springbrook High School within the Montgomery County, Maryland school district, brought suit seeking declaratory and injunctive relief, damages, and attorneys' fees against the Montgomery County Board of Education, the superintendent of schools, an area assistant superintendent, a school principal, and a building monitor. They claimed an alleged interference with their First Amendment rights, and sought an order enjoining the school authorities from restraining on school property the distribution of their non-school sponsored publication, the Joint Effort, Issue 2, and from enforcing the Publication Guidelines of Montgomery County. From a judgment in favor of the defendants, plaintiffs appeal. We affirm.

During the 1976-77 school term, the plaintiffs published and distributed the first issue of the Joint Effort, a self-styled underground newspaper designed as an alternative for student expression. This issue was distributed on school grounds with the express permission of the principal.

Following the success of that first issue, the plaintiffs published a second issue of the paper the following school year. The second issue contained various literary contributions, cartoons, and advertisements.

The plaintiffs printed approximately 350 copies of the Joint Effort, and acquired advance approval of the school officials for the distribution of the paper on February 17, 1978. The plaintiffs were not, however, required to seek prepublication or predistribution approval of the contents of the publication. In fact, the school officials were not even aware of the contents of the publication prior to the commencement of distribution.

Ten to twenty minutes after the sale of the paper began, the building monitor, Mr. Austin Patterson, halted the sale of the paper, confiscated the remaining copies, and took them to the school principal, Dr. Thomas P. Marshall. Patterson was the subject of a cartoon on the back cover of the paper that depicted him in cowboy clothing and speaking in dialect. ¹ The students had distributed approximately eighty copies of the paper before the distribution was halted.

Marshall upheld Patterson's seizure of the paper and banned any further distribution of Issue 2 on school property. The principal did, however, return the confiscated papers to the plaintiffs at the conclusion of the same day on which the papers were confiscated. The ban on distribution applied only to distribution on school property.

As required by the Student Rights and Responsibilities Policy (S.R.R.P.) § IVC-2(d); ² the school principal, within two school days of halting distribution, stated in writing his reasons for the action. ³ In his letter, Marshall stated:

1. A copy of the "Joint Effort" was reviewed and the publication was found to be in violation of Section 4C, titled "Publications." The specific violation is under C-2(c)(2). A member of the staff was depicted in derogatory terms with clear indications of racial overtones.

2. A second violation occurs in the promotion of drug paraphernalia. This is a violation of Section 2-C(c)(5), which prohibits the distribution of material which encourages actions which endanger the health and safety of students.

The first reason referred to the cartoon depicting the building monitor in western clothing. The second reason for halting the distribution of the Joint Effort referred to an advertisement for the Earthworks Headshop, a store that specializes in the sale of drug paraphernalia. The advertisement primarily promoted the sale of a waterpipe used to smoke marijuana and hashish. ⁴ The ad also advertised paraphernalia used in connection with cocaine.

Following the principal's decision to ban any further distribution of that issue of the Joint Effort, the students followed the appeals procedure provided for in S.R.R.P. § XIII Due Process Appeal of the Decision of the Principal. The students first appealed to the area assistant superintendent, Dr. George B. Thomas, and obtained an informal hearing on March 15, 1978. In an undated memorandum, but issued apparently within the five school days called for in S.R.R.P. § XIIIC-3(c), Thomas upheld the decision of the principal.

The students then appealed to the superintendent of schools, Dr. Charles M. Bernardo, who rendered his decision in writing on April 14, 1978, also within the time limit provided for in S.R.R.P. § XIII. Bernardo supported the decision of the principal and upheld the ban on further distribution on school property of that issue of the Joint Effort. The superintendent expressly noted that the ban did not apply to any future issue of the publication that did not violate the guidelines. ⁵

Following their unsuccessful administrative appeals, the students filed this suit against members of the school board, the superintendent, the area assistant superintendent, the principal, and the building monitor. The plaintiffs claimed that the seizure and continued restraint against distribution of the Joint Effort violated their First Amendment rights, and that the school system's regulatory scheme was facially invalid. The students sought damages for the restraint on distribution of the Joint Effort, and declaratory relief and an injunction to prohibit the school officials from further preventing its distribution. Additionally, the plaintiffs sought to enjoin the enforcement of the publication guidelines of Montgomery County.

Regarding the alleged First Amendment violation from the prohibition against distribution, the district court considered only whether the presence of the advertisement for the head shop provided the school with the right to halt the distribution of the Joint Effort, and held that the school was justified in halting and prohibiting further distribution of the paper. ⁶ As to the alleged facial invalidity of the guidelines, the court held that the health and safety regulation was not so vague as to violate First Amendment standards, and that the time involved in the school administrative appeal procedure was not unconstitutional.

As to the plaintiffs' charges of facial invalidity regarding certain other regulations, ⁷ the district court held that the plaintiffs lacked standing to challenge them because the regulations were not directly involved in halting the distribution of the Joint Effort, and thus the plaintiffs suffered no personal injury because of them. We affirm because the plaintiffs have failed to show that they were injured by the operation of the regulation. Ashwander v. T. V. A., 297 U.S. 288, 341, 347, 56 S.Ct. 466, 480, 483, 80 L.Ed. 688 (Mr. Justice Brandeis concurring).

The record indicates that the plaintiffs will have now graduated from Springbrook High School. Thus, we treat as moot the claims for injunctive relief for the case presents no question that is capable of repetition, yet evades review. Indianapolis School Commissioners v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975); DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). We do not decide the claims for declaratory relief because the merits of the health and safety regulation are decided in connection with the claim for damages. This is not a case, for example, in which declaratory relief may be proper, but equitable relief withheld for equitable reasons.

Because the plaintiffs sought compensatory damages for the cost of promoting the publication, and also exemplary damages, we must determine whether the school officials violated the plaintiffs' First Amendment rights when the copies of the Joint Effort were seized and distribution on school property prohibited. The question is whether the publication guidelines involved in the stoppage of distribution and subsequent administrative appeal violate the First Amendment.

While secondary school students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969), neither are their First Amendment rights necessarily "co-extensive with those of adults." Id. at 515, 89 S.Ct. at 741. (Justice Stewart concurring). "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 these rights to the needs of the school environment.' " Quarterman v. Byrd, 453 F.2d 54, 58 (4th...