Legal Clips, [February 2007]A Virginia federal district court has issued a preliminary injunction preventing a school district from enforcing a rule that any distribution of non-school materials must take place before or after the school day. The court found that the school district failed to demonstrate that distribution of materials during non-instructional times of the school day would pose a risk of disrupting school operations. As a result, the court concluded that the rule was unreasonable and overbroad, in violation of the First Amendment’s Free Speech Clause. Andrew Raker, a senior at Millbrook High School (MHS), requested permission to distribute anti-abortion literature to fellow students during non-instructional times of the school day, including in the hallways and the cafeteria. On Oct. 24, 2006, the Third Annual Pro-Life Day of Silent Solidarity, he did so. His claim that he had participated in similar activities at MHS in 2004 and 2005 without any disruption occurring was undisputed by Frederick County Public Schools (FCPS) officials.
Shortly after the 2006 distribution, MHS Principal Joseph Swack informed Andrew that he could not distribute materials during school hours, but could distribute them before and after school. Andrew retained legal counsel, who sent a letter to Mr. Swack noting that MHS had no written policy governing Andrew’s activity and requesting that the school reconsider. FCPS Director of Student Support Services J. Richard Plaugher responded in writing that Andrew was limited to distributing flyers before or after school, without citing any written policy. MHS subsequently formulated a written regulation giving students who, like Andrew, are not associated with an approved student organization or curricular program no option for distributing "non-school materials" during the school day. After the student has obtained the superintendent’s approval of the proposed material, he or she may distribute the material "before and after the instructional day." In omitting any other options, the regulation virtually banned the circulation of all written communication during lunchtime and between classes. Andrew sued, alleging infringement of his free speech rights and seeking a preliminary injunction permitting him to distribute his literature during non-instructional times of the school day.
To determine whether the injunction should be issued, the court stated it must balance four factors: (1) the likelihood of irreparable harm to the plaintiff if the injunction were denied; (2) the likelihood of harm to the defendant if it were granted; (3) the likelihood that the plaintiff would succeed on the merits of his claim; and (4) the public interest at stake. However, because the irreparable harm alleged by Andrew was "inseparably linked to his claim of a violation of his First Amendment rights," the court determined it must first analyze the likelihood of success on merits. The court defined the issue as whether the regulation is unconstitutional on its face because it suppresses expression protected by the First Amendment. The court found that FCPS failed to justify its time, place, and manner restrictions under the standard enunciated in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), because it adopted the policy without any history or reasonable fear that literature distribution would "materially disrupt class work or involve substantial disorder or invasion of the rights of others." The court rejected the district’s concerns about congestion and littering, finding school officials had failed to cite any "past incidents of these problems, [or] explain why they anticipate these problems might suddenly materialize." The court also noted that "[t]hese fears seem especially unsubstantiated in light of the undisputed fact that [Andrew] peacefully distributed abortion literature without incident during 2004 and 2005."
The court rejected FCPS’s argument that the content-neutral time, place, and manner restrictions need not satisfy Tinker’s disruption standard and instead should be judged using traditional forum analysis. It found unpersuasive FCPS’s assertion that, regardless of whether the MHS’s hallways and cafeteria are classified as a closed forum or a limited public forum, mere content-neutral time, place, and manner restrictions are valid as long as the "regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view." Regardless of the type of forum, the court concluded, the regulation must satisfy the Tinker disruption standard. While conceding that school officials have "latitude to ensure the ‘orderly and effective conduct of educational activities,’" the court found the policy attempted to achieve this goal in an unreasonable and overbroad manner. FCPS’s interest in eliminating hallway congestion and preventing littering might justify a more narrowly tailored prohibition, but the court concluded the regulation was not narrowly tailored, as it swept broadly over all forms of non-curricular literature, irrespective of size, quantity, and manner of distribution. The remaining factors also weighed in Andrew’s favor, the court found, noting that the U.S. Supreme Court has explained that the "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."
Raker v. Frederick County Public Schools, No. 06-00122 (W.D. Va. Jan. 19, 2007)
[Full opinion]