Pyle v. South Hadley School

• Court: Court of Appeals for the First Circuit
• Decided: May 26, 1995
• Docket: 94-2050
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 94-2050



                               JEFFREY J. PYLE, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                      THE SOUTH HADLEY SCHOOL COMMITTEE, ET AL.,



                                Defendants, Appellees.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Michael A. Ponsor, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                                  Cyr, Circuit Judge,
                                       _____________



                            Aldrich, Senior Circuit Judge,
                                     ____________________



                              and Boudin, Circuit Judge.
                                          _____________



                                 ____________________


William C.  Newman with whom  John Reinstein, Massachusetts  Civil
            __________________            ______________  ____________________

        Liberties  Union Foundation, and Christopher H. Pyle were on brief for
        ___________________________      ___________________

        appellants.

            Raymond  R.   Randall  with   whom  Ryan,   Boudreau,  Randall   &
            _____________________               ______________________________

        Kirkpatrick was on brief for appellees.
        ___________



                                 ____________________



                                     May 26, 1995

                                 ____________________



ALDRICH, Senior Circuit  Judge.   Two South  Hadley
                               _____________________



            High  School students,  Jonathan and  Jeffrey Pyle,  sued the



            principal, the superintendent and the School Committee of the



            South  Hadley School  (the "School")  for violation  of their



            First Amendment and  state statutory rights.   The Pyles were



            each  excluded from  the School  at one  time or  another for



            wearing  tee-shirts  emblazoned with  messages  its officials



            deemed  in violation of its  dress code.   The district court



            granted the Pyles' request  for injunction against the code's



            harassment  provision, but  upheld the  provision prohibiting



            message clothing considered obscene,  lewd, or vulgar.1  Only



            the  Pyles appeal, and the sole  issue is the validity of the



            court's ruling with respect to the anti-vulgarity provision.



                      The  court  held  that  neither  the  Massachusetts



            statute, post,  nor the First Amendment,  prevents the School
                     ____



            from   prohibiting   clothing   exhibiting  messages   school



            officials reasonably  consider obscene, lewd  or vulgar, even



            if sporting  such clothing causes no  disruption or disorder.



            Pyle v. South Hadley  School Committee, 861 F. Supp.  157 (D.
            ____    ______________________________



            Mass. 1994).  We vacate the court's ruling  on the state law,



            and  on  our own  motion  certify  a question  regarding  its



            interpretation   to   the    Supreme   Judicial   Court    of



                                
            ____________________



            1.  This provision of the dress code reads:



                      Students .  . . are not  to wear clothing

                      that . . . [h]as comments or designs that

                      are obscene, lewd or vulgar.  



                                         -2-



Massachusetts.  We defer  ruling with respect to  the federal



            constitutional  question  pending  resolution  of  the Pyles'



            rights under state law, and retain jurisdiction.2



                                    I.  Background
                                    I.  Background
                                    ______________



                      The court's findings of  fact amply illustrate  the



            trajectory of the tee-shirt turmoil; we simply summarize.



                      All began  on March  24, 1993,  when a gym  teacher



            objected  to a shirt  Jeffrey wore  to her  class trumpeting,



            "Coed Naked Band:  Do It To The Rhythm."  This set  in motion



            a series of face-offs between Jeffrey,  backed by his father,



            Christopher  Pyle, a  college teacher of  constitutional law,



            later  joined by  his younger  brother Jonathan,  and various



            school officials over the  exercise and permissible extent of



            the School's authority to  regulate student attire in school.



            Twice  Jeffrey requested  that  the School  formally draft  a



            dress  code because  the  informal system  that had  operated



            until then was, in  his opinion, too vague.  When  it finally



            relented and  issued a code containing the provision at issue



            here,  the Pyles  signalled  their opposition  by sporting  a



            series  of  shirts  emblazoned  with   messages  deliberately



            calibrated  to test  the  mettle and  sweep  of the  School's



            enforcement authority.  Shirts were banned, then unbanned, as



            the School  struggled to implement  its new dress  code under


____________________



            2.  Manifestly if the statute  does not disempower the School

            we shall have to consider the First Amendment.



                                         -3-



the Pyles' assault.   Ultimately, only  the Coed Naked  shirt



            that  originally sparked the conflict, and one other, worn by



            Jonathan  ("See Dick  Drink. See  Dick Drive.  See Dick  Die.



            Don't Be A Dick."), were banned under the new policy.



                 II.  Public School Students' Freedom of Expression 
                 II.  Public School Students' Freedom of Expression 
                 ___________________________________________________



                               Under Massachusetts Law
                               Under Massachusetts Law
                               _______________________



                      In 1974 Massachusetts enacted a statute that reads,



            in pertinent part:



                           The right of  students to freedom of

                      expression  in the public  schools of the

                      commonwealth   shall  not   be  abridged,

                      provided that such  right shall not cause

                      any  disruption  or  disorder within  the

                      school.    Freedom  of  expression  shall

                      include  without  limitation, the  rights

                      and    responsibilities   of    students,

                      collectively  and  individually,  (a)  to

                      express  their  views through  speech and

                      symbols,  (b)  to   write,  publish   and

                      disseminate their views, (c)  to assemble

                      peaceably  on  school  property  for  the

                      purpose      of     expressing      their

                      opinions. . . .



            M.G.L. c. 71,   82.3   The statute was originally  applicable



            only to those cities and towns which chose to accept it,  but



            became mandatory throughout the  State in 1988.   St.1988, c.



            137, M.G.L. c. 71,   86, as amended.



                      There   is   no   Massachusetts    decisional   law



            interpreting  section 82.    If,  as  the Pyles  contend,  it



            creates a broad student right  to exhibit messages subject to


____________________



            3.  The statute also exempts  the school and school officials

            from criminal and civil liability for student expression.



                                         -4-



restriction only for  obscenity, defamation, fighting  words,



            incitement  and disruption,  we need  not reach  the question



            whether  the First Amendment does so.  There is no contention



            that  the  tee-shirts  fell  into  any  of  these  concededly



            prohibitable categories, so we  start with a routine question



            of  statutory interpretation.    We do  not  find the  answer



            altogether clear.



                      On  the sole basis of a press release issued by the



            legislator who  sponsored  the 1988  amendment, the  district



            court read the statute to "require[] that  'school-sponsored'



            speech,  such as articles in student-run newspapers, . . . be



            judged by  the same  standard as 'school-tolerated'  speech,"



            but to have "no relevance  . . . to the analysis of  a school



            administrator's   efforts  to   curb  vulgarity   and  sexual



            innuendo." 861 F. Supp. at 168.  Its conclusion, 861 F. Supp.



            at 167, that the  statute was "aimed at" the  Supreme Court's



            decision in Hazelwood School  District v. Kuhlmeier, 484 U.S.
                        __________________________    _________



            260 (1988) (holding public  school officials may regulate the



            content  of   school  newspapers,  plays  and  other  "school



            sponsored expressive activities"), presumably meant  aimed at



            the Hazelwood  principle, as the statute  preceded the actual
                _________



            decision by fourteen years.  However, neither the statute nor



            the amendment rendering it mandatory mentions  anything about



            "school-sponsored" or  "school-tolerated" speech.   We do not



            consider the press  sheet of a former high school journalist,


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issued fourteen years after the original statute was written,



            to  offer  adequate  interpretive  guidance.   Nor  does  any



            legislative history  provide a basis  for the court  to build



            clauses  into  the  statute.    On  its  face,  the   statute



            guarantees  students'  freedom  of expression  "shall  not be



            abridged" except  insofar as  it "cause[s] any  disruption or



            disorder within the school."   M.G.L. c. 71,   82.   Students



            may  "express  their  views  through   speech  and  symbols,"



            presumably  including a stance  against drinking and driving,



            "without limitation."  Id.
                                   ___



                      It is difficult to think of at least the "See Dick"



            shirt, though reasonably thought  vulgar, as not expressing a



            "view."   At  the same time,  our difficulty  with proceeding



            along this  straightforward route is  that it puts  a federal



            court  in  the  awkward  position  of  issuing  this  binding



            interpretation ahead of any state tribunal where, despite the



            apparent   language,   it   is   quite   possible   that  the



            Massachusetts legislature never considered licensing students



            to use vulgarity at will in the public schools, and depriving



            school  officials of  all authority  to  regulate it  if non-



            disruptive.   Nor  is  it easy  to  read into  the  statute a



            blanket prohibition against a school's suppressing vulgarity.



            In the absence of any state court interpretation, we would be



            in  the  position of  dictating  state-wide  policy to  local



            school officials at the behest of two students.


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III.  Certification
                                 III.  Certification
                                 ___________________



                      While uncertainty or difficulty regarding state law



            is   generally   not   sufficient  to   justify   traditional



            abstention, Meredith  v. City of Winter Haven,  320 U.S. 228,
                        ________     ____________________



            64 S.Ct.  7, 88 L.Ed. 9  (1943), it may be  enough to counsel



            certification  where that  procedure  is  available.   Lehman
                                                                   ______



            Bros. v. Schein, 416  U.S. 386, 390-91, 94 S.Ct.  1741, 1744,
            _____    ______



            40  L.Ed.2d  215   (1974)  (certification   "helps  build   a



            cooperative judicial federalism").   We would be reluctant to



            burden the  Court with certification, and  the litigants with



            the attendant delay, were we not convinced that the statutory



            question is of sufficient and prospective importance to state



            policy  in  the  administration  of its  school  system,  and



            affects students  and school administrators statewide  for us



            to  make  a  far-reaching   decision  without  advice.    We,



            accordingly,  certify on our own motion an issue of state law



            to give the Supreme Judicial Court the opportunity to clarify



            the extent  of state-created rights.  See Globe Newspaper Co.
                                                  ___ ___________________



            v. Beacon Hill Architectural Comm'n, 40 F.3d 18, 22 (1st Cir.
               ________________________________



            1994).



                      We certify  the following  question to  the Supreme



            Judicial Court  of Massachusetts  pursuant to its  Rule 1:03,



            382 Mass.  698, 700  (1981), and retain  jurisdiction pending



            its determination:



                      Do high school students in public schools

                      have the freedom under M.G.L. c. 71,   82


-7-



to    engage    in   non-school-sponsored

                      expression   that   may   reasonably   be

                      considered   vulgar,    but   causes   no

                      disruption or disorder?


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