Student Freedom of Speech (Petitions)
School Is Not An Open Forum
Embry v. Lewis, 215 F.3d 884 (8th Cir. 2000)
The Eighth Circuit Court of Appeals held that public school officials could reasonably restrict petition signature collectors from using school property during an election when part of a school building served as a designated polling place. On election days, a middle school building served as a designated polling place. During the course of an election day, two petition signature collectors positioned themselves on school property to collect signatures from voters as they entered and exited the school building. The school district had a visitors policy requiring visitors to receive permission from school officials before using school property. The middle school principal asked the collector assigned to the morning shift if he had permission to use the school’s property for the purpose of gathering petitions. The principal asked him to leave when it was determined that permission had not been granted. The signature collector cooperated and left. In the afternoon a second signature collector entered school property to collect signatures without permission from school officials. When she was asked to leave, she refused arguing that she had a right under federal and state law to collect signatures at a designated polling place. School officials called the police who removed her.
Signature collectors filed a 42 U.S.C. § 1983 complaint against school and law enforcement officials alleging a violation of the First Amendment. They argued that circulating a petition is core political speech protected under the First Amendment. They also argued that school property, during an election, becomes a public forum. The court agreed with signature collectors’ argument that petition gathering is protected under the First Amendment, but did not agree that their removal from school property was related to the content of their petition. The court also disagreed with collectors’ contention that school property, pursuant to state law, automatically becomes a public forum merely because a limited area serves as a designated polling place. In this case, the middle school had a policy “requiring visitors to receive permission from the school before using school property” which neither signature collector sought. Echoing previous decisions, the court determined that school officials “have broad discretion in restricting visitors to school property.” The court also reiterated that public schools only become public forums by policy or practice, and that school officials may reasonably restrict visitors on school property “to protect the safety and welfare of schoolchildren.” For these reasons, the court determined that the removal of the signature collectors from school property was reasonable under the circumstances.
Prior Restraint of Student-Distributed Materials:
An Old Issue Resurfaces
Bystrom v. Fridley High School, Independent School District No. 14, 822 F.2d 747 (8th Cir. 1987)
ISSUE: May school districts establish policies that require prior review and approval of materials distributed by students on school property? Yes, according to several court decisions.
High school students in Minnesota filed suit against the school district based upon its policies that require review and approval of a student newspaper prior to its distribution on school premises. The 8th Circuit Court of Appeals refused to find the school district policy unconstitutional merely because the policy asserted a right of prior review and restraint on the part of school authorities. The 8th Circuit rejected the view that prior restraints are per se unconstitutional in the high school setting, citing Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). Also rejected was the argument that the policy was vague, general, and overbroad. The 8th Circuit found that a high degree of generality is made necessary by the subject matter: "The concepts involved (indecency, vulgarity, likelihood of material disruption) are general by their very nature." The Court stated that the guidelines were designed to assure that school hours and school property are devoted primarily to education as embodied in the district’s prescribed curriculum and that "their purpose is to preserve some trace of calm on school property" citing Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982).
In reviewing the school’s policies, the 8th Circuit reviewed each of the prohibitions to determine whether they represented an unconstitutional restraint of freedom of speech.
- Prohibition of materials "obscene to minors". The Court sustained the policy restricting materials "obscene to minors," applying contemporary community standards. Citing Ginsberg v. New York, 390 U.S. 629 (1968), the opinion finds that minors are accorded a more restricted right than that assured to adults to judge and determine for themselves what sexual materials they may read or see. This material could be restricted without the school district obtaining an injunction from the courts. Citing Eisner v. Stamford Board of Education, 440 F.2d 803 (2d Cir. 1971), the 8th Circuit found that it would be highly disruptive to the educational process if school officials were required to take a school newspaper editor to court every time the principal reasonably anticipated a violation of school board policies.
- Prohibition on expressions that are libelous. Restrictions intended to prevent speech which could result in tort liability on the part of the district were sustained. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), it was found that a student’s First Amendment rights do not extend to an expression that involves the invasion of rights of others.
- Prohibition on materials that are pervasively indecent or vulgar. Citing the Supreme Court’s ruling in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), the 8th Circuit sustained the district’s policy. In Bethel, the Supreme Court defines at what point student speech can be curtailed:
- Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures.
- Prohibition of written material which advertises any product or service not permitted to minors by law. The opinion acknowledges that even commercial speech enjoys First Amendment protection, but finds this protection does not extend to products which are themselves illegal. Here the policy restricts advertisements for tobacco, liquor, and material that is obscene to minors. The 8th Circuit refused to invalidate the guideline.
- Materials that invades the privacy of another person or endangers the health or safety of another person. Citing Kuhlmeier, the 8th Circuit said that material could be restricted only when publication could result in tort liability for the school. The 8th Circuit found that the tort of invasion of privacy was not recognized under Minnesota state law and thus invalidated this portion of the school district’s policy.
- Material that would cause a material and substantial disruption of the proper and orderly operation and discipline of the school. It was found that the school district’s policies complied with the restrictions in Tinker. The policy applies where there exist "specific facts upon which the likelihood of disruption can be forecasted including past experience in the school, current events influencing student activities and behavior, and instances of actual or threatened disruption relating to the written material in question."
In sustaining the school district’s policy, with the exception of the portion referring to the invasion of privacy, the 8th Circuit reversed an earlier ruling of the district court in favor of the students. The Court cautions that this ruling addresses whether or not the policy was unconstitutional on its face. It should not be interpreted to mean that every application of the policy will be valid. Student complaints over a policy wrongly applied to speech that is constitutionally protected will be heard by the courts and a school administration must be able to justify its actions.