Bystrom ex rel. Bystrom v. Fridley High School

822 F.2d 747, 40 Educ. L. Rep. 641
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 25, 1987
DocketNo. 86-5140
StatusPublished
Cited by1 cases

This text of 822 F.2d 747 (Bystrom ex rel. Bystrom v. Fridley High School) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bystrom ex rel. Bystrom v. Fridley High School, 822 F.2d 747, 40 Educ. L. Rep. 641 (8th Cir. 1987).

Opinions

ARNOLD, Circuit Judge.

This case raises questions of the right of public high school authorities to regulate or prohibit the distribution on school property of written material prepared by students or others. We are required to answer two questions: First, does the First Amendment, as applied to the States by the Due Process Clause of the Fourteenth Amendment, absolutely prohibit any form of prior restraint on such distribution? Second, if the answer to the first question is no, is the policy of Independent School District No. 14 of Fridley, Minnesota, on distribution of unofficial written material on school premises consistent with the First Amendment? We hold that prior restraint is not unconstitutional per se in this limited area, and that the school policy before us in this case is, with one important exception, constitutional.

I.

The plaintiffs, students at Fridley High School, brought this suit under 42 U.S.C. § 1983 for declaratory and injunctive relief. The defendants are the school district, its superintendent, and the principal of Fridley High School. The students wished to distribute, and in fact did distribute on school premises, an “underground newspaper” known as Tour de Farce.1 Defendants claimed the right to review in advance any such publication and to prevent its distribution on school property unless it complied with school-district rules entitled “Distribution of unofficial written material on school premises.”2 Both sides moved for summary judgment, and the case was submitted on stipulated facts. J.A. 38-42. After hearing argument, the District Court held the school policy unconstitutional “particularly as it refers to prior restraint — ” [750]*750Transcript of Summary Judgment Ruling (Tr.) 30, J.A. 45. It also specifically held invalid Guidelines C (referring to writings that are “pervasively indecent or vulgar”) and E (referring to writings that “invade [ ] the privacy of another person or endanger[ ] the health or safety of another person.”) The Court said: “Guideline C, the pervasively indecent or vulgar language is clearly unconstitutional as vague and overbroad.” Tr. 29, J.A. 44.

II.

We begin with a word about the legal context in which this case arises. Only distribution “on school property,” J.A. 3, is at issue here. The school district asserts no authority to govern or punish what students say, write, or publish to each other or to the public at any location outside the school buildings and grounds. If school authorities were to claim such a power, quite different issues would be raised, and the burden of the authorities to justify their policy under the First Amendment would be much greater, perhaps even insurmountable. See, e.g., Thomas v. Board of Educ., Granville Cent. School Dist., 607 F.2d 1043 (2d Cir.1979), cert. denied, 444 U.S. 1081, 100 S.Ct. 1034, 62 L.Ed.2d 765 (1980). Moreover, we deal here only with secondary schools.3 Specifically, what we say in this opinion does not apply to college or other post-secondary campuses and students. New college students are minors, and colleges are traditionally places of virtually unlimited free expression. See, e.g., Stanley v. Magrath, 719 F.2d 279 (8th Cir.1983).

We can understand the District Court's apparent feeling that the policy involved here is invalid simply because it involves a prior restraint on the freedom of the press. Prior restraints are traditionally the form of regulation most difficult to sustain under the First Amendment, see, e.g., Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-20, 51 S.Ct. 625, 630-32, 75 L.Ed. 1357 (1931), though “the protection even as to previous restraint is not absolutely unlimited,” id. at 716, 51 S.Ct. at 631. At the time of the District Court's ruling, the validity of prior restraints applied to high-school students was an open question in this Circuit. But since that time, we have clearly rejected the view that prior restraints are per se unconstitutional in the high-school context. Kuhlmeier v. Hazelwood School Dist., 795 F.2d 1368, 1374 n. 5 (8th Cir. 1986), cert. granted, — U.S. -, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987). This panel is bound by Kuhlmeier, and we therefore now hold that defendants’ policy is not unconstitutional merely because it asserts a right of prior review and restraint on the part of school authorities.

III.

We therefore turn to the particulars of defendants’ policy. Plaintiffs attack it in several respects, each of which we shall discuss. Before doing so, we venture a few general observations. First, many of the terms and phrases contained in the policy are not specific. They are attacked as vague, general, and overbroad, and concededly some of the wording is much more general than what we are accustomed to in many areas of the law. Yet, we must remember 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. But violation of these guidelines does not subject anyone to criminal sanctions, nor do they apply to the public at large or to territory outside school property. The addressees of this policy are not fully sui juris; they are minors, or at least most of them are. The guidelines are designed to assure that school hours and school property are devoted primarily to education as embodied in the district’s prescribed curriculum. Their purpose is to preserve some trace of calm on school property. They are one expression of the “legitimate and substantial com[751]*751munity interest in promoting respect for authority and traditional values be they social, moral, or political.” Board of Educ., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853, 864, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 435 (1982) (opinion of Brennan, J., joined by Marshall and Stevens, JJ., announcing the judgment of the Court) (internal quotation omitted).

1. Guideline A prohibits material that is “obscene to minors.” This phrase is defined as follows:

“Obscene to minors” is defined as:
(a) The average person, applying contemporary community standards, would find that the written material, taken as a whole appeals to the prurient interest of minors of the age to whom distribution is requested;
(b) The material depicts or describes, in a manner that is patently offensive to prevailing standards in the adult community concerning how such conduct should be presented to minors of the age to whom distribution is requested, sexual conduct such as intimate sexual acts (normal or perverted), masturbation, excretory functions, and lewd exhibition of the genitals; and
(c) The material, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

This definition is consistent with Supreme Court authority on the power of government to regulate distribution of written material to minors. See Ginsberg v. New York, 390 U.S. 629, 88 S.Ct.

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