Douglass v. Londonderry School CV-04-424-SM 03/17/05 P UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Blake S. Douglass, a minor. By and through his next friend and father, J. Sherwood Douglass, Plaintiff
v. Civil No. 04-424-SM Opinion No. 2005 DNH 044 Londonderry School Board, et al.. Defendants
_________________________________ O R D E R
On February 14, 2005, the court denied plaintiff's motion
for preliminary injunctive relief. In that motion, the
plaintiff, Blake Douglass, sought an order compelling defendants
to publish a photograph of him posing in trap shooting attire and
holding a shotgun in the senior portrait section of the
Londonderry High School Yearbook. Douglass v. Londonderry Sch.
Bd., 2 0 05 DNH 19 (D.N.H. Feb. 14, 2005) ("Douglass I" ) .
Plaintiff did not move the court to reconsider the order denying
injunctive relief, nor did he appeal that order.
Subseguently, plaintiff, through counsel, waived his right
to a jury trial on all issues so triable, electing instead to proceed with a bench trial on all claims in his amended
complaint, including his request for permanent injunctive relief.
Given plaintiff's jury trial waiver, the court determined that it
could proceed to trial. See Perez-Serrano v. DeLeon-Velez, 868
F.2d 30 (1st Cir. 1989)(where both damages and injunctive relief
are sought under § 1983, it is error for the court, rather than
the jury, to determine facts common to both the equitable and
legal claims). On March 8 and 9, 2005, the parties tried the
case to the court.
Background
The factual background is set forth in detail in Douglas I .
Accordingly, only brief reiteration of the pertinent facts, in
the context of the evidence presented at trial and a discussion
of the pending legal issues, is necessary here.
As explained in the court's previous order, to prevail on
his federal claims Blake Douglass must prove that one or more of
the named defendants deprived him of a constitutional right while
acting under color of state law. 42 U.S.C. § 1983; See Polk
County v. Dodson, 454 U.S. 312, 315 (1981). The defendants, all
2 public school officials, do act under color of state law when
exercising their official functions. So, the state action
element of Blake's § 1983 claim is easily satisfied if any one of
the defendants made the decision to exclude his photograph from
the yearbook. They deny making the decision, however, and,
instead, say that the core leadership group of the yearbook club
- the student editors - made the decision. If the students,
normally private citizens, actually made the decision, but did
not "act under color of state law," then, of course, the § 1983
claim necessarily fails. If they did act under color of state
law, a guestion arises with respect to the application of a new
publication policy imposed by the school board (plainly state
actors) that, independently, would preclude publication of
Douglass' photograph as it currently stands.
State Action
The Londonderry High School yearbook is a club project.
That is to say, it is the product of volunteer efforts by
students, who solicit advertisements, develop content, write
text, create graphics, take and gather photographs, edit
submissions, work on lay out, proofread, and perform the host of
3 miscellaneous tasks essential to any successful publication. The
club is assisted by two faculty advisors, one of whom (Mr.
Graichen) focuses on computer-related lay-out and production
tasks, and the other (Mr. Juster) on general matters. Both
receive a stipend for their extracurricular work, and each no
doubt contributes substantially to the success of the project.
At the beginning of each school year Mr. Graichen, the
senior faculty advisor, reviews student applications to serve on
the yearbook staff, and identifies students he will appoint as
"editors." Those students are invited, or are expected to attend
a yearbook conference sponsored by a national yearbook publisher.
That conference is held very early in the school year. It is
generally understood that the conference attendees will form the
core or leadership group of the yearbook staff, and will be
assigned specific editorial roles (e.g.. Photo Editor, Sports
Editor, Seniors Editor, Editor-In-Chief, etc.).
At the beginning of the 2004-05 school year, as usual, the
leadership group assembled in the school lobby to board
transportation to the yearbook conference. Before leaving.
4 however, Mr. Juster, one of the yearbook faculty advisors,
approached the group and showed them the photograph Blake
Douglass proposed to have published as his senior portrait. He
asked them to discuss and consider the matter, stressing that
their decision regarding whether to include that photograph was
an important one. After brief discussion among the students, Mr.
Juster brought them to Principal Elefante's office, introducing
them to the principal (who was new to the school) as the
"editors" of the yearbook.
The principal told the group that he was interested in their
opinion as to whether the photograph should be included in the
yearbook, and he stressed that he would support their decision,
whatever it might be. After about twenty minutes of discussion
among the group (neither the principal nor the faculty advisor
shared his view during the discussion), Mr. Elefante asked that a
vote be taken, assuring the students that however they decided
the issue, he would support their decision. Eight students voted
not to publish the photograph, while two supported publishing it.
Sometime later, at least one (and possibly both) of the
dissenters changed her position slightly - she still thought the
5 photograph should be published, but acquiesced in the majority
view for collegial reasons.
Blake, and his parents, assumed the decision not to publish
the photograph had been made by Mr. Juster. They sought review
by Mr. Elefante and the School District Superintendent, Mr.
Greenberg. A meeting was scheduled with Mr. Elefante shortly
after the decision had been made. Mr. and Mrs. Douglass expected
Mr. Greenberg to attend as well, but only the principal was
present. During that meeting, Blake's parents were told that the
student editors decided against publishing the photograph. They
asked for the names of the decision-makers, but Elefante declined
to identify the students until parental permission could be
obtained. Elefante, however, did tell Mr. and Mrs. Douglass that
he supported the students' decision. Accordingly, Mr. and Mrs.
Douglass took the matter to the school board. The board also
supported the decision not to publish the photograph in the
seniors section of the yearbook.
At some point following the yearbook conference, the student
editors, at the suggestion of Erica Andrade (who had been named
6 Co-Editor-in-Chief), offered to publish Blake's photograph, as
submitted, in a community sports section of the yearbook. But,
that offer was rejected. This suit followed.
While it is clear from the testimony at trial that the
student editors had differing levels of awareness of their
official status at the time the vote was taken in Mr. Elefante's
office - some knew they were "editors," some anticipated becoming
editors, some thought they would be named editors, etc. - that
ambivalence is understandable given both the informality that
attends the yearbook club's activities, and the students' seeming
association of the term "editor" with a specific job assignment
(e.g.. Photo Editor), rather than with a general policy-making
role. The specific editorial jobs had not yet been assigned that
early in the school year.
What is clear, though, is that the ten students who were
asked to consider the matter on the morning of the yearbook
conference, and who decided the issue in Principal Elefante's
office, were in fact the student editors of the yearbook (two
additional student editors were absent due to scheduling
7 conflicts). They were not, as plaintiff's counsel asserts,
randomly selected students who happened to agree with the
administration's opposition to publication of Blake's photograph.
Nor were they merely a serendipitous group of students who
happened to sign up for a field trip to the yearbook conference.
They were, de facto if not at that point de jure, editors of the
yearbook.
It is also plain that the students were not coerced, unduly
influenced, pressured, or even lobbied by the school
administration to decide the matter as the administration might
have liked. The editors testified credibly that they were told
that the decision was theirs, that they understood that their
decision would be respected and supported, and that they were not
pressured in any way. And, they articulated rational reasons for
the position they took.
While reasonable people might well disagree on the point,
the students opposing publication generally thought it
inappropriate to include a photograph in the seniors section that
prominently displayed a firearm, given that firearms are absolutely banned from school property. One editor also
expressed both an awareness of, and sensitivity to, the emotions
and anxieties experienced by many following the Columbine High
School tragedy, and similar incidents involving school shootings.
Of course, others might reasonably disagree - concluding
that the photograph is entirely benign, even depicting the best
of American youth - a clean-cut, smiling, healthy young man,
exhibiting enthusiasm for the perfectly legitimate and well-
recognized sport of skeet-shooting, as well as an obvious respect
for the rules of safe-handling of perfectly legal firearms.
Needless to say, target shooting, in various forms, is considered
legitimate sport in our society. The United States Olympic
Committee recognizes the sport, it is sanctioned not only in high
schools across this country, but in our best colleges and
universities as well, and that activity certainly falls well
within the ambit of respectable and socially-acceptable conduct.
The point here is not that the students' reasoning or their
exercise of editorial judgment was necessarily correct or
incorrect, on the merits. As even the most cursory review of just about any newspaper will disclose, reasonable people
regularly disagree about the exercise of editorial reasoning and
judgment. Rather, the point is that the editorial judgment in
this case was exercised by the students, not the school
administration, and their judgment was sufficiently independent
to avoid attribution to the school administration.
I credit the testimony of Mr. Elefante, the school
principal, and Mr. Juster, a faculty advisor, as well as the
students who appeared. Mr. Elefante and Mr. Juster were
uneguivocal in asserting that the publication decision was
committed to the students, and the students were assured that the
school administration would support whatever decision they made.
I do not mean to suggest that either Blake or his parents were
not credible; their perceptions that the school administration
controlled the decision were not unreasonable, given the contacts
they had with Mr. Juster and Mr. Elefante, and given the nature
of the appeals process, as well as the fact that school
authorities of course retain a large measure of discretion to
override such student decisions.
10 It is apparent, as well, given the record, that "state
action" was not a concept on the minds of any of the parties
before this litigation began. It is doubtful that either Blake
or his parents, or school officials, focused very much on just
who was deciding to exclude the photograph before suit was filed.
Neither counsel briefed or even alluded to the issue on motion
for preliminary relief, suggesting that they also had paid little
attention to that critical detail. Indeed, the parties did not
address the state action issue until the court brought it up at
the hearing on preliminary injunctive relief. Therefore, I find
it unlikely that either Mr. Elefante or the the Douglass family
paid particular attention, pre-litigation, to the fact that the
students actually made the controlling decision. So, although I
find that Mr. Elefante did tell the Douglass family that it was a
student decision, they can be excused for assuming it was,
nevertheless, the faculty advisor's or principal's ultimate
decision, because school authorities firmly stood by it, and, at
the time, neither the principal nor the parents likely
appreciated the significance of the point.
11 In any event, having carefully considered all of the
evidence presented, I find that the student editors made the
decision not to publish Blake's chosen photograph; the school
administration did not. I find, as well, that the decision not
to publish was one properly falling within the editorial function
and discretion committed to the students by the administration.
I also find that the students exercised independent judgment and
discretion, that they were not coerced or unduly influenced by
anyone acting under color of state law, and that their editorial
decision is not attributable to the school administration.
Finally, I conclude that the students were acting as private
citizens, and did not make the decision to reject Blake's
proposed photograph while "acting under color of state law."
As discussed in the earlier order on preliminary relief, the
Court of Appeals for the First Circuit considered substantively
identical issues in Yeo v. Town of Lexington, 131 F.3d 241, 248-
49 (1st Cir. 1997). The Court of Appeals recognized that, in
circumstances such as these, competing First Amendment rights are
often at stake - in this case, for example, both Blake's right to
expression and the First Amendment rights of student editors to
12 exercise editorial judgment, are at stake. Striking a balance
between identical interests in Y eo, the court concluded that
student editors of a public high school yearbook or newspaper are
not "state actors" for First Amendment purposes, at least not
when they exercise independent editorial discretion.
Where, as here, there are First Amendment interests on both sides of the case, the analysis of whether there is state action must proceed with care and caution. Because the record establishes that the editorial judgment exercised was the independent judgment of the student editors of both [the school newspaper and the school yearbook], we resolve the guestion of state action against [finding that the students were state actors].
I d . at 255. In this case, too, the record evidence establishes
that the editorial judgment exercised with respect to publishing
Blake's photograph was indeed the independent judgment of the
student editors. Accordingly, defendants are entitled to
judgment on plaintiff's § 1983 claims given his failure to
establish state action, an essential element, by a preponderance
of the evidence.
13 The Policy
It might be argued that, notwithstanding the earlier
decision by the students, the subseguent and intervening
enactment of a new school publications policy that effectively
precluded publishing Blake's photograph in the yearbook, served
to establish state action as the actual cause of Blake's alleged
injury. The current publications policy was indeed adopted by
the school board after the decision to exclude Blake's photograph
had been made, and that policy was, by its terms, applicable to
the current school year. The policy, as discussed in the earlier
order, effectively precludes publication of Blake's photograph in
the seniors section because it bans "props" (here, the shotgun,
and perhaps Blake's attire) from any senior portrait. If it is
the new policy, rather than the student editors' decision, that
is keeping Blake's photograph out of the seniors section, then
the state action element of his § 1983 claim is easily met,
because the policy was developed and imposed by the School Board,
plainly state actors.
But, as also explained in the earlier order, while the new
policy does constitute state action, and would serve to preclude
14 publication of Blake's photograph, it is not subject to
successful constitutional challenge. The new policy is broad and
inflexible, but it is content and viewpoint neutral in both
application and effect1. All students are affected egually; no
senior may have a portrait published in the seniors section if it
includes any prop, without regard to the content of any message
the prop may convey.
Plaintiff also implies, but has not demonstrated, that the
new yearbook policy is being enforced selectively, in an effort
to single out his speech - the message conveyed by the content of
his photograph - for special treatment. Mr. Elefante testified
1 Although the distinction between content-based restrictions and those which are viewpoint-based is somewhat imprecise, see, e.g., Rosenberger v. Rector & Visitors of the Un i v . of V a ., 515 U.S. 819, 831 (1995), this much can be said with relative confidence: content-based restrictions tend to focus on the subject matter of speech, whereas viewpoint-based restrictions tend to focus on the speaker's perspective or opinion on a particular subject. Viewpoint-based restrictions on speech are, then, a subset of content-based restrictions. See I d . at 82 9 ("When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.") (citation omitted).
15 previously that the new policy was applied even-handedly, and
that two other seniors who, like Blake, submitted photographs of
themselves posing with props, were notified that they would have
to submit different portraits. Both complied.
Plaintiff also suggests (but still has not presented
supporting evidence or developed any legal argument) that because
the policy was adopted shortly after he filed this suit, it
necessarily (albeit only inferentially) constitutes an
impermissible effort to stifle his constitutionally protected
speech. His argument seems to be that an otherwise viewpoint and
content-neutral policy may, nevertheless, be unconstitutional, if
its enactment was motivated by an intent to suppress his speech.
If the court has accurately construed his claim, the evidence
presented does not support it, and the applicable law appears to
be otherwise.
As noted earlier, the general rule, as expressed by the
Supreme Court, is that an illicit motive underlying the enactment
of an otherwise valid and content-neutral regulation will not
invalidate that regulation.
16 It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. As the Court long ago stated: "The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted."
United States v. O'Brien, 391 U.S. 367, 383 (1968) (guoting
McCray v. United States, 195 U.S. 27, 56 (1904)). The Court of
Appeals for the Seventh Circuit explained the principle's
application when it noted that, "Just as we would never uphold a
law with unconstitutional effect because its enactors were
benignly motivated, an illicit intent behind an otherwise valid
government action indicates nothing more than a failed attempt to
violate the Constitution." Grossbaum v. Indianapolis-Marion
County Bldg. Auth., 100 F.3d 1287, 1293 (7th Cir. 1996).
The court is aware of the Supreme Court's decision in
Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788
(1985), which might seem to be at odds with (or, perhaps,
describe an exception to) the general principle. There, the
Court held that, "[t]he existence of reasonable grounds for
17 limiting access to a nonpublic forum, however, will not save a
regulation that is in reality a facade for viewpoint-based
discrimination." I d . 811. See also Ridley v. Mass. Bay Tansp.
A u t h ., 390 F.3d 65, 77 (1st Cir. 2004) ("If [defendant] revised
[its guidelines on the types of advertising it accepts] merely as
a ruse for impermissible viewpoint discrimination, that would be
found unconstitutional regardless of the type of forum
created.").
Importantly, however, the Cornelius Court was concerned
about the government's subjective motivations because that case
involved a restriction on speech which was not content neutral.
Under the policy challenged there, some entities wishing to raise
funds for particular causes were permitted to participate in the
government's charity drive, known as the Combined Federal
Campaign, while others were not. That fact distinguishes
Cornelius (and Ridley) from this case. The current Londonderry
School District Yearbook Policy is both content and viewpoint
neutral. The Court of Appeals for the Seventh Circuit explained
the significance of the distinction in clear and succinct
language:
18 Because the government was distinguishing among groups based on the content of their messages (either advocacy or nonadvocacy ) , the [Cornelius 1 Court remanded the case to see whether the government was really targeting certain viewpoints.
Where, however, the government enacts a content-neutral speech regulation for a nonpublic forum, there is no concern that the regulation is "in reality a facade for viewpoint-based discrimination." Whatever the intent of the government actors, all viewpoints will be treated egually because the regulation makes no distinctions based on the communicative nature or impact of the speech. A facade for viewpoint discrimination, in short, reguires discrimination behind the facade (i.e., some viewpoints must be disadvantaged relative to other viewpoints). . . . When the government restricts speech in a content- neutral fashion, however, all viewpoints - from the Boy Scouts to the Hare Krishnas - receive the exact same treatment.
Grossbaum, 100 F.3d at 1298 (guoting Cornelius, 473 U.S. at 811)
(emphasis supplied). So it is in this case. The new yearbook
policy banning seniors from posing with any sort of props is
blunt and far-reaching, but it is definitely content neutral.
Accordingly, the school board members' subjective motivations in
enacting that policy are not relevant, and cannot serve to
undermine the policy even if their intent was as Blake presumes.
19 Finally, it probably bears noting that even if Blake could
point to some authority supporting the view that a discriminatory
motive underlying the school board's adoption of a content-
neutral policy might still invalidate that policy, he has still
failed to introduce any evidence, other than an inference arising
from the timing of the board's decision to adopt the new policy,
to support his claim that the board was specifically motivated by
an intent to suppress his constitutional rights. The direct
evidence on that point particularly the testimony of Mr.
Elefante, is that the board adopted the new policy so school
administrators and faculty would not have to be involved in an
annual task of weighing the relative appropriateness or
inappropriateness of various props, costumes, or slogans that
students attempted to include in their senior portraits.2
2 The United States Supreme Court has made clear that, with regard to student publications, schools "retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with the shared values of a civilized social order, or to associate the school with any position other than neutrality on matters of political controversy." Hazelwood Sch. Dist. v. Kuhlmeir, 484 U.S. 260, 272 (1988) (citation and internal punctuation omitted) (emphasis supplied).
20 While the controversy surrounding the publication of Blake's
photograph undoubtedly prompted the school board to adopt the new
policy, plaintiff has failed, on the merits, to prove by a
preponderance of the evidence that the new policy is either a
ruse or facade, actually designed to suppress his particular
message.
Conclusion
For the foregoing reasons, the court holds that defendants
are entitled to judgment on plaintiff's First Amendment claim.
Plaintiff's other federal and state claims (due process, equal
protection, right to bear arms, free speech, etc.) were not
pressed at trial, but, in any event, are either without legal
merit or were not proven. The Clerk of Court shall enter
judgment in favor of defendants in accordance with this order and
close the case.
SO ORDERED.
Steven j / McAuliffe Chief Judge March 17, 2005
cc: Penny S. Dean, Esq. Russell F. Hilliard, Esq.