JAMES D. WHITTEMORE, District Judge.
Before the Court is the Magistrate Judge's Report and Recommendation (Dkt. 41), which recommends that Plaintiff's motion for preliminary injunction (Dkt. 9) be granted in part and denied in part. Neither party has objected to the Report and Recommendation.
After careful consideration of the Report and Recommendation in conjunction with an independent examination of the file, I agree with the Magistrate Judge that Plaintiff has demonstrated a substantial likelihood of success on her claim that the challenged School Board policies were unconstitutionally applied to J.G.'s speech under Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).
As the Supreme Court reasoned in Tinker, "[i]t can hardly be argued that ...
Accordingly, the Report and Recommendation (Dkt. 41) is adopted, confirmed, and approved in all respects and is made a part of this order for all purposes, including appellate review. Plaintiff's motion for preliminary injunction (Dkt. 9) is GRANTED in part, as follows:
(1) The Hillsborough County School Board is ENJOINED from applying Board Policy 9700's prohibition on proselytizing speech and the incorporated provision of Board Policy 5722 that bans materials seeking to establish the supremacy of a particular religious denomination, sect, or point of view to J.G.'s distribution of invitations to religious-themed events unless such restriction is necessary to prevent a material and substantial interference with schoolwork or discipline.
(2) Plaintiffs request that the Court waive Fed.R.Civ.P. 65(c)'s bond requirement is GRANTED.
(3) Plaintiffs request for an immediate order permitting J.G. to distribute religious invitations and materials during non-instructional time to his friends and classmates at Lewis Elementary and any other relief sought in the preliminary injunction motion is DENIED.
ELIZABETH A. JENKINS, United States Magistrate Judge.
Before the Court are Plaintiff Kimberly Gilio's ("Plaintiff's")
On May 1, 2012, Plaintiff filed this lawsuit against the School Board alleging violations
This case calls upon the Court to reconcile an elementary student's First Amendment rights with the School Board's interest in maintaining the educational environment for the benefit of all students. Because Plaintiff has established a substantial likelihood of prevailing on the merits of at least some of her claims and has met the other requirements for preliminary injunctive relief, it is recommended that the motion for preliminary injunction be granted in part.
1. At the time of the incident leading to this lawsuit, J.G. was a fourth-grade student at Roland H. Lewis Elementary School ("Lewis Elementary"), a public school in Temple Terrace, Florida.
2. Temple Terrace is located in Hillsborough County, and the School Board oversees all public schools in Hillsborough County.
3. The School Board has enacted two Board Policies, among others, governing the distribution of literature from outside organizations (Board Policy 9700)
4. Students at Lewis Elementary are permitted to distribute birthday party invitations in the classroom provided that the invitations are appropriate for school and each student in the class receives an invitation.
6. Plaintiff made invitations to the event that read:
(Dkt. 9 Ex. 2)
7. The invitation also included Plaintiff's telephone number and email address.
8. On March 26, 2012, J.G. took twenty (20) of the invitations to school with him to distribute to classmates during non-instructional time.
9. Before class started, J.G. gave one invitation to a friend. The distribution of this invitation did not cause any disturbance at Lewis Elementary. The friend's parent later called to RSVP for the Easter egg hunt.
10. J.G. then asked the substitute teacher who was in charge of his class that day for permission to distribute the remaining nineteen (19) invitations to his classmates.
11. The substitute teacher told J.G. that she would have to ask the Principal for permission. The substitute teacher submitted the invitations to the Principal for review.
12. Later that day, the substitute teacher returned the invitations to J.G. with a note from the Principal indicating that the invitations could not be distributed.
13. The Principal's note stated: "We are not allowed to pass out fliers related to religious events or activities. Thank you for your understanding."
14. The Principal concluded, as stated in her affidavit filed in this case, that the invitations did not comply with Board Policy 9700 because they "were not age appropriate and contained a proselytizing message."
15. J.G. was not disciplined for handing out one invitation before seeking permission to distribute the remainder.
16. J.G. did not attempt to distribute the invitations outside the classroom after receiving them back from the Principal.
17. J.G. is now in the fifth grade at Lewis Elementary, and as his church continues to hold events and activities for children, J.G. desires to share this information with his classmates through invitations and other literature distribution.
To obtain a preliminary injunction, a plaintiff must establish (1) likelihood of success on the merits; (2) irreparable harm; (3) that the balance of equities tip in his favor; and (4) that an injunction is in the public interest. Complete Angler, LLC v. Clearwater, 607 F.Supp.2d 1326, 1330 (M.D.Fla.2009) (citing Winter v. NRDC, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). Given their "extraordinary and drastic" nature, preliminary injunctions may be granted only where the plaintiff clearly satisfies the burden of persuasion
In seeking a preliminary injunction, Plaintiff contends that Board Policies 9700 and 5722 are unconstitutional, among other reasons, for: (1) restricting student speech in violation of Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); and (2) impermissibly discriminating on the basis of content and viewpoint.
As a starting point, the parties fundamentally disagree on the nature of the speech at issue. Plaintiff contends that J.G.'s invitations constitute purely personal speech that is subject to regulation under the restrictive standard created in Tinker. In contrast, the School Board asserts that J.G.'s invitations are subject to regulation under the more lenient standard for school-sponsored speech set forth in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), or alternatively, under a nonpublic forum analysis.
In Tinker, a junior high school student and two high school students sued under the First Amendment after they were suspended from school for wearing black armbands in protest of the Vietnam War. Tinker, 393 U.S. at 504, 89 S.Ct. 733. School principals had learned about the planned protest — which involved the community at large — and implemented a policy prohibiting the wearing of black armbands as a result. Id. The students were suspended in mid-December until they came back without the armbands. Id. They did not return until after New Year's Day, when the planned period for the protest ended. Id.
In finding the school policy unconstitutional, the Supreme Court declared that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Id. at 506, 89 S.Ct. 733. Yet the Court recognized that school officials need to "prescribe and control conduct in the schools." Id. at 507, 89 S.Ct. 733. In balancing these interests, the Court created a rigorous standard that allows a public school to prohibit personal student speech
In Hazelwood, high school students claimed their First Amendment rights were violated when their principal prohibited them from publishing articles in the school newspaper about teenage pregnancy and the impact of divorce on families. Hazelwood, 484 U.S. at 262-63, 108 S.Ct. 562. In particular, the principal vetoed the pregnancy article because he was concerned that the topic was inappropriate and that the pregnant students, while given false names, would still be identifiable. Id. at 263, 108 S.Ct. 562. In upholding the principal's conduct as constitutional, the Court held that "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored"
In arguing for the Tinker standard, Plaintiff asserts J.G.'s invitations are personal religious speech that, "far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression." Capital Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (citations omitted). Plaintiff points to four district court opinions that applied the Tinker standard under similar circumstances in the school setting. In Johnston-Loehner v. O'Brien, an elementary school prohibited a student from distributing invitations to a church party billed as an alternative to Halloween trick-or-treating. Johnston-Loehner, 859 F.Supp. 575, 577 (M.D.Fla.1994). Finding that the invitations would not have caused a material and substantial interference, the court concluded that the principal's refusal to allow the child to invite her classmates to the party violated the student's First Amendment rights under Tinker.
In advocating for the Hazelwood standard, the School Board asserts that J.G.'s invitations are literature from his church, an outside organization, and thus, Board Policy 9700 governs their distribution. The materials acquire the imprimatur of the school and become a curricular activity when they are submitted for review, approved, and then distributed in the classroom. Once the invitations become school-sponsored speech, the School Board contends that its regulation of J.G.'s speech is reasonably related to the pedagogical purposes
On this threshold issue, Plaintiff's arguments should prevail based on the present landscape of First Amendment jurisprudence in the school setting. Simply put, J.G.'s invitations cannot be categorized as school-sponsored speech because they are not connected to any curricular activity. In Hazelwood, the Supreme Court described school-sponsored speech as both bearing the imprimatur of the school and arising in the context of a curricular activity. Hazelwood, 484 U.S. at 271, 108 S.Ct. 562. A curricular activity is one that is supervised by faculty and designed to impart particular knowledge or skills. Id.
The Eleventh Circuit addressed one example of school-sponsored speech in determining that a high school did not violate the First Amendment by prohibiting religious messages in student-painted murals on school grounds. Bannon, 387 F.3d at 1217. The court explained that the prominent locations of the murals, including near the school's main office, suggested that they had the imprimatur of the school. Id. at 1214. Additionally, the student expression was a curricular activity because the murals were part of a "beautification project" designed to develop artistic skills and promote school spirit. Id. at 1215.
In this case, distributing invitations to one's classmates, even during non-instructional time, arguably could be viewed by students' parents and others as bearing the "imprimatur" of the school. But even a generous interpretation of "curricular activity"
Alternatively, the School Board argues that a forum analysis is appropriate because J.G.'s elementary school is a nonpublic forum.
However, the School Board's argument for a forum analysis is not persuasive because that approach typically is employed when an outside group claims it is being treated differently by school officials in gaining access to student events or school facilities that are open to other organizations. See Pocono Mountain Sch. Dist., 2011 WL 5008358, at *3.
Two additional School Board arguments deserve mention, namely that: (1) regulation of J.G.'s speech is acceptable because officials have greater leeway in limiting student expression in elementary schools; and (2) allowing J.G. to distribute his invitations would interfere with the rights of other students to avoid proselytizing messages at school. Neither of these arguments is persuasive based on the present record, however.
The first issue concerns an unsettled area of law.
Although the Supreme Court has not squarely defined the First Amendment rights of elementary school students, and student age is an appropriate consideration, the weight of authority in the federal courts of appeal and the district courts supports the position taken by Plaintiff that the Tinker standard applies to J.G.'s Easter egg hunt invitations to his fourth-grade classmates to learn the "true meaning of Easter."
The School Board's concern that permitting J.G. to distribute his invitations would violate other students' rights to be free from religious messages in school
Applying the Tinker standard to J.G.'s expression of personal speech, Plaintiff has shown that the School Board's conduct likely violated J.G.'s First Amendment rights because the record is devoid of any evidence that permitting J.G. to distribute his invitations would have caused a "material and substantial interference with schoolwork or discipline."
Accordingly, Plaintiff has shown a substantial likelihood of success on her claim that the School Board's policies were unconstitutionally applied to J.G.'s speech under Tinker. However, nothing in this opinion should be taken as suggesting that the Principal acted with ill will or bad motive toward J.G. Motive is irrelevant to the analysis here. Nor does it appear that the Principal was doing anything other than following what she perceived to be School Board policy. But because J.G.'s speech could be prohibited only if it had a material and substantial adverse effect on schoolwork or discipline, and the record contains no such evidence, Plaintiff has shown that the School Board's action violated J.G.'s First Amendment rights.
Plaintiff's as-applied challenge to Board Policies 9700 and 5722 will also be addressed
Plaintiff claims that the challenged provisions in Board Policies 9700 and 5722 were unconstitutionally applied to J.G.'s speech as content-based and viewpoint-based discrimination. The School Board responds that the policies are viewpoint neutral, and even if they permit content-based discrimination, the policies are reasonable restrictions in the school setting.
Board Policy 9700 bans the distribution of materials from religious institutions or organizations that "contain a proselytizing message (i.e., promote the benefits of the specific religion)." The policy also states that school officials shall use the criteria in Board Policy 5722 to determine whether materials are suitable for distribution at school. In turn, one provision in Board Policy 5722 explains that materials are not appropriate if they "[s]eek to establish the supremacy of a particular religious denomination, sect, or point of view over any other religious denomination, sect, or point of view[.]"
The government engages in content-based discrimination when it limits speech on a general topic. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828-29, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). Viewpoint discrimination is a type of content-based regulation that targets a particular stance taken by speakers on a general topic. Id. at 829, 115 S.Ct. 2510. Viewpoint discrimination is presumptively unconstitutional.
Plaintiff argues that the Board Policies constitute viewpoint discrimination because secular groups are free to promote their benefits or to proclaim superiority, while religious organizations cannot do so. While this may be true in theory, there is no evidence in the present record that non-religious groups proselytize or promote the superiority of their views at J.G.'s school. However, by banning certain religious messages, it does appear that the Board Policies impermissibly target speech from a religious viewpoint. See generally Rosenberger, 515 U.S. at 831, 115 S.Ct. 2510 (concluding that a university policy permitted viewpoint discrimination for denying funding to a publication solely because it discussed subjects from a religious perspective).
As applied to J.G.'s invitations, the contested provisions in Board Policies 9700 and 5722 permit viewpoint discrimination because they target proselytizing messages solely from a religious perspective. By its own terms, Board Policy 9700 applies only to religious institutions and organizations — not secular groups. The policy also defines "proselytizing messages" exclusively in relation to religious speech, or messages that "promote the benefits of the specific religion." But proselytizing also has a broader meaning, such as "recruit[ing] members for an institution, team, or group." C.E.F. of N.J., 386 F.3d at 528 (citation omitted).
Although the School Board asserts that the policies are viewpoint neutral because they apply equally to all religions, regardless of the underlying theology, this argument is not persuasive.
Therefore, Plaintiff also has shown a likelihood of success on the merits of her claim that the contested provisions of Board Policies 9700 and 5722, as applied to J.G., are unconstitutional viewpoint-based discrimination.
Accordingly, there is no need to reach the facial challenges to Board Policies 9700 and 5722 at this phase of the litigation. See Complete Angler, 607 F.Supp.2d at 1335 n. 13 (citing Renne v. Geary, 501 U.S. 312, 324, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991) (explaining that it is better to resolve an as-applied challenge to a speech regulation before considering a facial challenge to the regulation)).
Turning to the remaining elements of the preliminary injunction test, Plaintiff contends that the loss of First Amendment freedom "for even minimal periods of time constitutes irreparable injury." Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir.1983) (citation omitted). In response, the School Board argues that J.G. has not suffered irreparable harm because he was not prohibited from handing out the invitations "outside of class on his own." (Dkt. 19 at 5) At oral argument, the School Board stated that J.G. could have stood outside his classroom door and handed out the invitations to each student as he or she entered the room.
However, the Principal's note to J.G. did not suggest that he could hand out the invitations on his own. And Board Policy 9700 expressly applies to the distribution of literature from outside groups anywhere "on District property either during or after school hours." The School Board cannot logically argue that J.G.'s invitations fall under Board Policy 9700 and then
In addressing balancing of the equities, Plaintiff submits that the harm suffered by J.G. outweighs any harm to Defendant because a government entity "has no legitimate interest in enforcing an unconstitutional" regulation. KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272 (11th Cir.2006). Furthermore, Plaintiff contends that an injunction would serve the public interest by enforcing J.G.'s constitutional rights.
The School Board counters that lifting Board Policy 9700's restriction on proselytizing literature will lead to a tremendous influx of materials from outside groups. The Court finds this concern speculative as applied to J.G. In any event, if the School Board's prediction proves accurate, nothing precludes it from moving to modify or amend a preliminary injunction.
Plaintiff has met the third and fourth elements of the preliminary injunction test and injunctive relief is warranted in this case. The remaining issue is the scope of that relief.
The School Board should be enjoined from enforcing the provision of Board Policy 9700 that prohibits materials containing a "proselytizing message (i.e., promote the benefits of the specific religion)," as applied to J.G.'s religious-themed invitations, unless permitting that expression would cause a material and substantial interference with schoolwork or discipline.
Additionally, Board Policy 9700 states that criteria in Board Policy 5722 will be used to evaluate materials. This includes a provision in Board Policy 5722 that directs the School Board to prohibit materials that "[s]eek to establish the supremacy of a particular religious denomination, sect, or point of view over any other religious denomination, sect, or point of view[.]" This provision of Board Policy 5722 also should be enjoined as applied to J.G.'s invitations to religious-themed events, absent a finding that they would cause a material and substantial interference with schoolwork or discipline.
The preliminary injunctive relief recommended is narrow in scope: prohibiting the School Board from enforcing, as to J.G.'s religious-themed invitations, Board Policy 9700's ban on proselytizing messages and Board Policy 5722's incorporated restriction on materials that seek to establish the supremacy of a particular religious denomination, unless the Tinker standard is met.
While it sets a high bar, the Tinker standard for regulating student expression does not require a school to prove actual disruption or interference in school activities. "Although an `undifferentiated fear or apprehension of disturbance' is not sufficient to meet [the Tinker] test, schools need not wait until disruption actually occurs in order to prohibit student expression if they reasonably forecast that the
Moreover, an immediate order requiring Lewis Elementary to allow J.G.'s distribution of religious-themed invitations is unnecessary. J.G.'s invitations are not entitled to special treatment. The School Board must be able to perform its responsibility of educating students, as long as it does so consistent with the Constitution.
Accordingly, and upon consideration, it is
October 5, 2012
