Yeo v. Town of Lexington

• Decision Date: 07 November 1997
• Docket Number: No. 96-1623,96-1623
• Citation: 131 F.3d 241
• Parties: 122 Ed. Law Rep. 924, 26 Media L. Rep. 1193 Douglas E. YEO, Individually and on Behalf of His Children and as Chairman of the Lexington Parents Information Network, Plaintiff, Appellant, v. TOWN OF LEXINGTON, Jeffrey Young, Superintendent, David Wilson, Principal, Samuel Kafrissen, Karen Mechem and Joseph Dini, Chairman, John Oberteuffer, Lois Coit, Susan Elberger and Barrie Peltz, Individually and as They Are Members of the Lexington School Committee, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 241

131 F.3d 241

122 Ed. Law Rep. 924, 26 Media L. Rep. 1193

Douglas E. YEO, Individually and on Behalf of His Children and as Chairman of the Lexington Parents Information Network, Plaintiff, Appellant, v. TOWN OF LEXINGTON, Jeffrey Young, Superintendent, David Wilson, Principal, Samuel Kafrissen, Karen Mechem and Joseph Dini, Chairman, John Oberteuffer, Lois Coit, Susan Elberger and Barrie Peltz, Individually and as They Are Members of the Lexington School Committee, Defendants, Appellees.

No. 96-1623.

United States Court of Appeals First Circuit.

Heard Nov. 7, 1997.

Decided Dec. 9, 1997.

John W. Spillane, with whom John J. Spillane, Worcester, MA, and Gregory D. Smith, Clarksville, TN, were on brief for appellant.

Adam P. Forman, with whom Lois Brommer Duquette, Sarah A. Olivier, and Testa, Hurwitz & Thibeault, LLP, Boston, MA, were on brief for appellees.

S. Mark Goodman, Michael C. Hiestand, Arlington, VA, Robert A. Bertsche, and Hill & Barlow, Boston, MA, for the Student Press Law Center, National Scholastic Press Association, Journalism Education Association, Scholastic Journalism Division of the Association for Education in Journalism and Mass Communication, Columbia Scholastic Press Advisers Association, New England Scholastic Press Association, and Yankee Press Education Network; Dwight G. Duncan, North Dartmouth, MA, for the Massachusetts Family Institute; James C. Heigham, and Choate, Hall & Stewart, Boston, MA, for Massachusetts Newspaper Publishers Association; Gwendolyn H. Gregory, Alexandria, VA, Melinda L. Selbee, Lombard, IL, Timothy B. Dyk, Washington, DC, John Bukey, Corona, CA, Jones, Day, Reavis & Pogue for the National School Boards Association, Illinois Association of School Boards, and California School Boards Association's Educational Legal Alliance; Michael J. Long, Rosann DiPietro, and Long & Long for the Massachusetts Association of School Superintendents, on briefs amici curiae.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, SELYA, BOUDIN, STAHL, and LYNCH, Circuit Judges.

OPINION EN BANC

LYNCH, Circuit Judge.

This case, involving speech interests on both sides, arises from the decision of two public high school student publications--the newspaper and yearbook--not to publish an advertisement. The advertisement promoted sexual abstinence and was proffered by a parent, Douglas Yeo, in the aftermath of a decision by the Lexington, Massachusetts School Committee to make condoms available to students as a public health matter. Yeo had campaigned against the condom distribution policy and lost. The two high school student publications declined to publish the advertisement on the grounds that each had a policy, albeit unwritten, of not running political or advocacy advertisements.

The civil rights action brought by Yeo against the Town, the School Committee, Superintendent and school officials was terminated on defendants' motion for summary judgment. The district court judge concluded that no state action had been shown. A panel of this court, this judge dissenting, reversed, holding that summary judgment should be entered for Yeo on his claims that there was state action, that each student publication was a public forum, and that the decisions not to publish were impermissible view point discrimination. 1997 WL 292173 (1st Cir. June 6, 1997). This court granted en banc review ¹ and withdrew the panel opinion. The en banc court now affirms the decision of the district court entering summary judgment for defendants on the ground that state action has not been shown.

I. The Facts

We review the facts in the light most favorable to Yeo, the party opposing summary judgment, drawing all reasonable inferences from the record in his favor. Swain v. Spinney, 117 F.3d 1, 2 (1st Cir.1997).

A. The Publications

This case involves two distinct Lexington High School (LHS) student publications, the LHS Yearbook and the LHS Musket. The Yearbook was operated entirely by a staff of about sixty students; all editorial, business, and staffing decisions were made by students. During the 1993-94 academic year, this staff was headed by two co-editors-in-chief, Dow-Chung Chi and Natalie Berger. Karen Mechem, a LHS teacher, was the Yearbook faculty advisor. Mechem was paid a stipend of less than $2,000 for that activity. Apart from Mechem's stipend and the use of LHS buildings and facilities, the Yearbook is financially independent from the school and is funded entirely through the sale of the books to students and advertising.

Like most yearbooks, the LHS Yearbook included pictures of seniors and other students, sections on sports, academics, and activities, and an advertisement section. This advertisement section was largely comprised of congratulatory or commemorative ads purchased by students and their families. As the Yearbook advertising order form suggested, student ads might include "[b]aby pictures, group photos taken in the setting of your choice, [or] pictures of meaningful people and/or places." A few advertisements were also sold to local businesses; most of these included congratulatory messages to the graduating class.

During the 1993-94 academic year, the Yearbook's unwritten policy was to publish advertisements from those local businesses which the students frequented or had some relationship with during their high school years. In keeping with this policy, students selling ads targeted those businesses that fit the Yearbook theme of fond memories. The Yearbook's policy was not to publish any political or advocacy advertising, including ads from candidates for student government. ² The purposes of this policy were to ensure that the advertising section of the Yearbook was congruent with the rest of the publication and to prevent the Yearbook from becoming a bulletin board for competing issue groups or candidates in a way that would interfere with the commemorative purpose of the Yearbook.

The LHS Musket is a student-written and edited newspaper that is published four or five times a year. All editorial, operational, and staffing decisions are made by the student editors. During the 1993-94 academic year, Ivan Chan served as the Musket 's editor-in-chief, Dong Shen was the business manager, and Samuel Kafrissen was the faculty advisor. Students do not seek or obtain the approval of the faculty advisor for any editorial or operational decisions. Kafrissen is paid a stipend of $1,373 by LHS, and the Musket receives about $4,500 a year from the School Committee. The Musket has no physical facilities at LHS, other than a mail box; all the layout is done at editors' homes. The Musket typically includes news articles about the high school, features, editorials, letters to the editor, sports coverage, and humor columns, all written, edited, and produced by students. The Musket is described in literature distributed to the student body as being a "student run newspaper" which is "written, edited and distributed by students." The editorial page bears a legend stating expressly that the opinions stated there are those of the student editors or newspaper staff and not of school policy.

Not every issue of the Musket contains advertising. Those that do contain two or three small ads from businesses that cater to student tastes. During the 1990s, those advertisers have included a bookstore, a video store, a music store, a driving school, a deli, a hair salon, SAT prep courses, and, around prom time, a tuxedo rental store and a dress shop. For the 1993-94 school year, the Musket created an "Advertisement Form" for potential advertisers. The form stated that: "The award winning Lexington High School student newspaper provides area businesses and non-profit organizations the opportunity to place advertisements in the Musket." The form did not state that ads were subject to editorial approval, although it did note that, depending on the issue, ad size might have to be adjusted and ads might have to be edited, by the paper's staff, for length. The form also stated that "[p]ayment ... for an ad will occur only if and after we publish an ad." (emphasis added).

Pursuant to an unwritten policy, the Musket has never accepted advocacy or political advertising, including that from candidates for student government. The purpose of this policy was to prevent the Musket from becoming a "bulletin board" for warring political ideas. The students also rejected the idea of allowing cigarette ads in the paper for fear that such advertising would be read as an endorsement of smoking.

B. Yeo's Submission of Advertisements

In 1992, the Lexington School Committee adopted a policy making condoms available to students at LHS without parental permission. This measure was the subject of political controversy in Lexington, and Douglas Yeo, a town resident and parent, emerged as a leading opponent of condom distribution and other "safe sex" policies. Yeo headed a group called "Lexington Citizens for Responsible School Policy," which sponsored a non-binding town-wide referendum on the School Committee's condom policy.

The Musket ran both news articles and editorials on the policy and the referendum. Yeo thought these articles misrepresented his group's position. In January 1993, Yeo requested a meeting with LHS Principal David Wilson concerning his grievance. Wilson suggested that Yeo submit a letter to the editor correcting the alleged inaccuracies, but advised Yeo that any decisions regarding corrections would have to be made by the student editors. Yeo did not contact the student editors. In March 1993, the voters of Lexington approved the condom distribution policy.

Subsequently, in May 1993, Yeo founded the Lexington Parents Information Network ("LEXNET"). LEXNET's stated goal was to distribute information about public education to parents via newsletters and meetings.

1. The Yearbook Ad

On November 1, 1993, Yeo, as Chairman of LEXNET, submitted a full page ad to the 1994 LHS Yearbook...