Fifth Circuit holds district’s current materials distribution policy constitutional while allowing students speech claim under previous policy
The U.S. Court of Appeals for the Fifth Circuit (LA, TX, MS) has ruled that a Texas school district’s current policy imposing time, place and manner restrictions on the distribution of materials in school is constitutional. However, it found adoption of the current policy did not moot the student’s free speech claims under the prior policy, which prohibited the distribution of religious materials. The parents of several students attending Plano Independent School District (PISD) schools filed suit in federal district court in 2004, alleging that PISD’s materials distribution policy violated the students’ free speech rights because the students were prevented from distributing various materials of a religious nature. Those materials included: pencils inscribed with “Jesus is the reason for the season,” candy canes with cards describing their Christian origin, tickets to a church’s religious musical programs, and tickets to a dramatic Christian play. While the suit was pending in district court, PISD adopted a new materials distribution policy, known as 2005 Policy. That policy allows the distribution of materials during: (1) 30 minutes before and after school; (2) three annual parties; (3) recess; and (4) school hours, but only passively at designated tables. In addition, middle and secondary school students are permitted to distribute materials in hallways and cafeterias during non-instructional time. The policy also contained narrow limitations on the content of materials distributed, i.e. no blanket ban on materials containing religious messages.
Based on the 2005 Policy, PISD sought summary judgment on the parents’ facial challenge of the district’s materials distribution policy. The district court concluded that the parents’ facial challenge to the prior policy was moot because of the adoption of 2005 Policy. Relying on Fifth Circuit’s decision in Canady v. Bossier Parish School Board, the district court concluded that 2005 Policy was facially valid, except as to that portion prohibiting distribution of materials during elementary school lunch periods. It concluded that “this provision reaches more broadly than is reasonably necessary to protect [the District’s] legitimate interests.” The parents appealed the district court’s ruling that their claim was moot as to the prior policy and that the 2005 Policy was facially valid. PISD appealed the district court’s ruling regarding the elementary schools cafeteria restrictions.
The Fifth Circuit affirmed the lower court’s ruling that the 2005 Policy is constitutional, but reversed the finding that facial challenge of the prior policy was moot and remanded the case to the district court. It also reversed the lower court’s ruling on the elementary schools cafeteria restrictions. The appeals court also noted that the argument of two of the individual defendants in case, the principals of two PISD elementary schools, that the First Amendment does apply to elementary school students was not before the appeals court, as that suit was current on appeal after the district court denied the principals’ motion to dismiss based on qualified immunity. It found that the 2005 Policy was subject to scrutiny under the time, place and manner test applicable to content and viewpoint neutral regulations of student speech. It stressed that under that standard “[t]he regulation need not be the least restrictive alternative, but it must avoid burdening substantially more speech than is necessary to achieve the government’s interest.” The appeals court rejected the parents’ argument that the time, place and manner standard was not applicable to the present case because that standard applies only to expressive conduct and distributing written materials is “pure speech” requiring the application of the “substantial disruption” standard established in Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969). Instead, it concluded that “Tinker is triggered by content or viewpoint regulation” and the fact that pure speech “is being regulated is here of no moment.” The appeals court also concluded that the U.S. Supreme Court’s decision in Morse v. Frederick, 551 U.S. 393 (2007), was not contrary to Tinker because Justice Alito’s concurring opinion in Morse, which the Fifth Circuit previously held to be controlling, “did not address, content or viewpoint neutral restrictions.”
Applying the time, place and manner test to the 2005 Policy, the Fifth Circuit concluded it was “reasonable and facially constitutional. It found the restrictions content neutral and that PISD had provided a significant legitimate interest that was furthered by the regulations. Specifically, the restrictions are “aimed at providing a focused learning environment for its students.” It also noted: “The regulation of speech during and immediately before the classroom instructional period is intended to facilitate the beginning of class without a wait for the distribution of materials.” In addition, the appeals court found “restrictions on distribution of materials by elementary students in hallways and the cafeteria are intended to facilitate the movements of students between classes and at lunch and to reduce littering.” While acknowledging that it was less clear that PISD’s policy is narrowly tailored to meet the school district’s interest and whether there are ample alternative channels of communication, the court concluded “that the policies as written are sufficiently narrowly tailored and are constitutional, at least on our invocation of ‘avoidance.’”
The appeals court then addressed PISD’s argument that the district court erred in finding that elementary schools cafeteria restrictions were unconstitutional. It agreed that PISD had a legitimate interest in maintaining greater control during elementary school lunch periods given that “elementary school students are not as mature and require more guidance than older students in order to ensure that they are able to move through the cafeteria quickly and efficiently.” It disposed of the contention that the restriction impermissibly reduces alternative channels of communication, stating that “just like middle and secondary school students, elementary school students may still distribute written material before and after school as well as at recess. As a result, it concluded elementary school students had ample alternative means of communication. Lastly, it agreed that the remedies of declaratory or injunctive relief were moot as to the prior policy, but the parents still had a remedy for nominal damages based on the a claim that the policy was unconstitutional as applied to PISD’s ban on the distribution of materials that contained religious messages.
Morgan v. Plano Indep. Sch. Dist., No. 08-40707 (5th Cir. Dec. 1, 2009)
[Editor’s Note: In 2008, The U.S. Court of Appeals for Sixth Circuit (KY, MI, OH, TN) ruled that a Michigan school district’s time, place, and manner restrictions on distribution of student materials in school did not violate a student’s free speech rights because those restriction were reasonable. A summary of the opinion and NSBA’s amicus brief in support of the school district are available at the links below.]
NSBA School Law pages on M.A.L. v. Kinsland
NSBA Amicus Brief on M.A.L. v. Kinsland