GERALD E. ROSEN, Chief Judge.
Plaintiff Katharine Smith, individually and as next friend and mother of Plaintiff J.S., a grade school student, commenced this action in this Court on October 28, 2009, challenging the constitutionality of Defendant Holly Area Schools' policies regarding the distribution of religious materials by students and parents. The president of the Holly School Board, Tony Mayhew, and the superintendent of the Holly Area Schools, Kent Barnes, also have been named as Defendants. Plaintiffs' claims rest principally upon allegations that Defendants engaged in impermissible viewpoint discrimination by preventing Plaintiff J.S. and his mother from distributing invitations or flyers promoting religious activities at any time or in any place or manner during the school day.
Through the present motion, filed on March 22, 2010, Plaintiffs seek preliminary injunctive relief as to three aspects of the Defendant school district's policies regarding the distribution of materials. First, Plaintiffs request that Defendants be preliminarily enjoined from preventing J.S. from distributing religious flyers to fellow students during non-instructional time. Next, Plaintiffs seek an order granting Mrs. Smith access to a so-called "flyer forum," through which outside organizations submit flyers to the school for distribution to students. Finally, Plaintiffs request that the Court declare a Holly Area Schools policy, Policy 9370, unconstitutional on its face.
On July 30, 2010, the Court held a hearing on Plaintiffs' motion. As discussed below, it became evident from the parties' briefing on this motion, as well as through the statements of counsel at the July 30 hearing, that certain aspects of Plaintiffs' request for preliminary injunctive relief may have been mooted or otherwise affected by subsequent developments—including, most prominently, the Defendant school district's purported decision to close its "flyer forum." Accordingly, the Court held Plaintiffs' motion in abeyance, and invited the parties to negotiate an amicable resolution to their remaining disputes. The parties have since reported, however, that they were unable to resolve their differences, and they have submitted proposed findings of facts and conclusions of law as to the matters that remain for the Court's determination.
Having reviewed the parties' briefs in support of and opposition to Plaintiffs' motion, as well as the parties' post-hearing submissions, the Court is now prepared to decide the aspects of Plaintiffs' motion that remain in dispute. This opinion sets forth the Court's rulings on these matters.
At the time of the initial incidents giving rise to this suit, Plaintiff J.S. was a second grade student at Patterson Elementary School, a public school operated by the Defendant Holly Area Schools. Plaintiff
Apart from the Defendant school district, Plaintiffs have named two district officials as Defendants. First, Defendant Tony Mayhew is the president of the Defendant district's school board, and he has been named in his official capacity only. Next, Defendant Kent Barnes is the superintendent of the Defendant Holly Area Schools, and he has been named in both his official and individual capacities.
The first incident giving rise to this suit occurred in June 2009, when Plaintiff J.S. brought 25 sealed envelopes to school and attempted to distribute them to his classmates. These sealed envelopes contained invitations to a youth summer camp held at Cornerstone Church, a church attended by Plaintiffs and located in Highland, Michigan. (See Plaintiffs' Motion, Ex. 3.) Along with flyers that briefly summarized this summer camp, Mrs. Smith enclosed a letter to parents in each envelope in which she described the camp in greater detail, recounted how much her children had enjoyed the camp in the past, and invited parents to contact her for further information. (See id.)
J.S. gave one of these envelopes to a classmate in the school hallway before class began. He then brought the remaining envelopes into his second grade classroom, and began placing them in "cubbyholes" that served as receptacles for distributing class and other materials to each student. Upon learning of this and being advised by J.S. that the envelopes contained invitations to a church function, J.S.'s teacher, Ms. King, ordered the child to stop distributing the flyers, removed the envelopes J.S. had already placed into the student cubbyholes, and told J.S. to return these envelopes to his backpack. According to the complaint, Ms. King advised J.S. that "anything that comes from a church cannot be distributed at all at school." (Complaint at ¶ 65.)
After this incident in June of 2009, Mrs. Smith called the school principal, Dennis Inhulsen, and provided him with a copy of the materials that her son had sought to distribute to his classmates.
During this discussion, Mr. Inhulsen described to Mrs. Smith the school's usual procedure for allowing outside individuals or groups to distribute materials to schoolchildren.
Mrs. Smith continued to follow up on this matter in August of 2009, sending Mr. Inhulsen an e-mail in which she inquired whether either she or J.S. could distribute invitations at school during non-instructional time, or whether these invitations could somehow be distributed through the flyer forum. On August 25, 2009, the principal responded by e-mail, explaining that no such option was available:
(Plaintiffs' Motion, Ex. 4, Inhulsen 8/24/2009 E-mail.)
In his e-mail to Mrs. Smith, Mr. Inhulsen stated that any further concerns should be addressed to the school superintendent, Defendant Kent Barnes, and the school board. In accordance with this direction, Mrs. Smith sent an e-mail to Mr. Barnes on August 25, 2009, suggesting various non-disruptive means through which her son could distribute invitations or religious flyers to his classmates either in or outside the classroom, and explaining that she was "in no way trying to interfere with the education of the students or trying to disrupt any instructional time." (Plaintiffs' Motion, Ex. 5, Katharine Smith 8/25/2009 E-mail.) The superintendent responded to Mrs. Smith in an e-mail sent the next day:
(Plaintiffs' Motion, Ex. 6, Barnes 8/26/2009 E-mail.)
In February of 2010—after this suit was filed—the Patterson principal, Mr. Inhulsen, sent a letter home with each student advising parents that outside groups and individuals were no longer permitted to submit materials to the school for distribution to students. This letter stated:
(Plaintiffs' Motion, Ex. 7, Inhulsen 2/11/2010 Letter.)
During the 2009-2010 school year, J.S. and his mother have wished to distribute materials to J.S.'s classmates concerning three events held at or sponsored by Cornerstone Church: (i) an October 2009 "Harvest Party," an alternative to trick-or-treating; (ii) a "Power of One" Sunday event in April of 2010, with special services, music, and refreshments; and (iii) a youth summer camp held in June of 2010.
Apart from the above-cited statements of school policy by Patterson Elementary principal Inhulsen and superintendent Barnes, the Defendant school district has adopted written policies that arguably bear upon the incidents at issue here. First, the district has a written policy regarding the distribution of student publications:
(Plaintiffs' Motion, Ex. 8, Holly Area Schools Policy 8730.)
A related policy, Policy 8730-R, establishes procedures by which a student may seek the requisite approval of the school principal for distribution of a student publication and, if necessary, may appeal a principal's decision to the superintendent and the school board. (See Plaintiffs' Motion, Ex. 8, Holly Area Schools Policy 8730-R.) This policy affirms that "[s]tudents are protected in their exercise of freedom of expression by the First Amendment." (Id. at 2.) It further provides that "[d]istribution of student publications shall not be prohibited because they contain the expression of unpopular, critical, controversial, tasteless or offensive ideas." (Id.) This policy also defines various terms used in Policy 8730. As pertinent here, it defines a "[s]tudent publication" as "any publication as defined herein which is composed, compiled, published or distributed by students without school sponsorship." (Id. at 3.)
Finally, the Defendant school district has adopted a written policy governing the distribution of materials to students by outside groups or individuals:
(Plaintiffs' Motion, Ex. 9, Holly Area Schools Policy 9370.)
Through the present motion, Plaintiffs seek a preliminary injunction that would (i) allow J.S. to distribute invitations to religious activities and religious flyers to his classmates at Patterson Elementary School during non-instructional time, (ii) enjoin the Defendant school district from denying Mrs. Smith access to the so-called "flyer forum," through which materials from outside groups or individuals are distributed to students, and (iii) declare Holly Area Schools Policy 9370 unconstitutional on its face. Although Plaintiffs have advanced a number of distinct constitutional theories in their complaint—including claims under the Free Exercise and Establishment Clauses of the First Amendment and the Equal Protection and Due Process Clauses of the Fourteenth Amendment—their
The decision whether to award preliminary injunctive relief is governed by a familiar four-part standard, under which the Court must consider (i) whether Plaintiffs, as the moving parties, have a strong likelihood of success on the merits, (ii) whether they would suffer irreparable injury in the absence of injunctive relief, (iii) whether an award of preliminary injunctive relief would cause substantial harm to others, and (iv) whether the public interest would be served by the requested award. Sandison v. Michigan High School Athletic Association, Inc., 64 F.3d 1026, 1030 (6th Cir.1995). These four considerations "are factors to be balanced and not prerequisites that must be satisfied," and "are not meant to be rigid and unbending requirements." American Imaging Services, Inc. v. Eagle-Picher Industries, Inc. (In re Eagle-Picher Industries, Inc.), 963 F.2d 855, 859 (6th Cir.1992). "Moreover, a district court is not required to make specific findings concerning each of the four factors ... if fewer factors are dispositive of the issue." Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir.2003).
As disclosed in the above recitation of facts, this case involves two different sorts of efforts by Plaintiffs to inform Patterson Elementary School students and their parents about activities at Plaintiffs' church. First, Plaintiff J.S. sought to distribute to his classmates—either directly or through the use of cubbyholes in the classroom— sealed envelopes in which he and his mother had placed flyers about upcoming events at Plaintiffs' church and a letter from J.S.'s mother recommending these events. Next, upon learning about the socalled "flyer forum" in a discussion with the Patterson principal, Plaintiff Katharine Smith sought to use this mechanism to distribute flyers to students and their parents advising them of upcoming activities at Plaintiffs' church. These two efforts stand on somewhat different factual and legal footings, and will be addressed separately below.
The Supreme Court long ago affirmed that students have First Amendment rights, and that they do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). Yet, "[i]t is also common ground... that the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981). "The extent to which the government may regulate speech in a particular forum depends upon the nature of the forum." M.A.L. v. Kinsland, 543 F.3d 841, 846 (6th Cir.2008).
As the Sixth Circuit has observed, "[r]epeated statements by the Supreme Court and multiple circuits, including this one, make it clear that school areas such
In M.A.L., 543 F.3d at 843, the plaintiff was a 14-year-old eighth-grade student who sought to distribute literature to his classmates "detailing various facts about abortion." The defendant school district insisted that the plaintiff's leaflets had to be preapproved before he could distribute them, and it further determined that the student should be limited to "post[ing] his leaflets on bulletin boards in the hallways and ... distribut[ing] them in the cafeteria during lunch." 543 F.3d at 844-45. The student challenged these restrictions, citing Tinker for the proposition "that the school may only regulate the time, place, and manner of his speech if his leaflet distribution [was] likely to cause a material and substantial disruption." 543 F.3d at 845-46. The Sixth Circuit disagreed, finding that the school district's "minor regulation" of the plaintiff's speech was "eminently reasonable" because it restricted only the "time, place, and manner" of this speech without regard for the student's "anti-abortion viewpoint." 543 F.3d at 847. The court further held that it was reasonable for the defendant school district to require pre-approval of the leaflets, so long as the district's guidelines for approval were "viewpoint and content neutral" and "provide[d] clear standards against which the principal must exercise his discretion to approve or disapprove of a proposed distribution." 543 F.3d at 847-48.
In Morgan v. Swanson, 610 F.3d 877, 878-80, 889 (5th Cir.2010), in contrast, the Fifth Circuit held that the defendant school officials were not entitled to qualified immunity in a case in which elementary school students allegedly were prevented from distributing holiday "goodie bags" that contained pencils and other items with religious messages. In so ruling, the court rejected the defendants' contention that the First Amendment right of free speech did not extend to the "distribution of non-curricular materials in public elementary schools." Morgan, 610 F.3d at 884-89.
Applying this case law here, Plaintiffs have established a likelihood of success on their First Amendment challenge to the Defendant school district's outright prohibition upon J.S.'s distribution of religious flyers to his classmates. The school district cannot reasonably be viewed as having imposed time, place, or manner restrictions upon J.S.'s distribution of these materials; instead, it has flatly forbidden him from giving such materials to his classmates anywhere on school grounds at any time during the school day. As explicitly stated by superintendent Kent Barnes in response to Mrs. Smith's inquiry, "[d]istributing religious invitations/materials/explanations within the elementary school day is not appropriate." (Plaintiffs' Motion, Ex. 6, Barnes 8/26/2009 E-mail.) Yet, as the above-cited decisions make clear, such a blanket prohibition upon a student's distribution of materials on the basis of religious viewpoint is not constitutionally permissible. See M.A.L., 543 F.3d at 850 (emphasizing that "schools must meet a higher constitutional standard"—namely, the Tinker standard that requires a showing of a "`material and substantial interference' with the educational process"— "when they seek to foreclose particular viewpoints than when they seek merely to impose content-neutral and viewpoint-neutral regulations o[n] the time, place, and manner of student speech"); Morgan, 610 F.3d at 889 (noting that the defendant public school officials in that case could "point to no case stating that elementary school students are without protection under the First Amendment from religious-viewpoint discrimination, absent evidence of disruption to the classroom or subversion of educational mission").
Defendants' efforts to avoid this result are unavailing. First, they contend that the district's policies governing the distribution of materials are being applied—at present, at least, if not in the past—in a viewpoint-neutral fashion to prohibit
At the July 30, 2010 hearing, however, defense counsel asserted that the Defendant school district has, in fact, imposed an across-the-board, viewpoint-neutral ban upon all student-to-student distribution of materials on school grounds during school hours. (See 7/30/2010 Hearing Tr. at 14-17.) Yet, this solution to the viewpoint-discrimination problem triggers other First Amendment concerns. As Plaintiffs aptly observe, "[i]t is axiomatic that a complete ban on student speech is not a permissible `time, place, and manner restriction.'" (Plaintiffs' Reply Br. at 9.) Likewise, the Supreme Court has emphasized that "we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom." Tinker, 393 U.S. at 513, 89 S.Ct. at 740. Indeed, under the Defendant school district's own policy, "[s]tudent publications which are not libelous, disruptive or obscene ... may be distributed on school property during school hours in areas designated by the building principal." (Plaintiffs' Motion, Ex. 8, Holly Area Schools Policy 8730.)
Defendants next insist that student-to-student distribution of materials is not altogether prohibited, but is still achievable through the flyer rack located in the school lobby. Under the present record, however, the Court agrees with Plaintiffs that this sharply circumscribed limit upon student-to-student speech is not "reasonable in light of the school's interest in the effectiveness of the forum's intended purpose," because it fails to provide students with a reasonable "opportunity to express [their] viewpoint to [their] fellow schoolmates." M.A.L., 543 F.3d at 847; see also Phelps-Roper v. Strickland, 539 F.3d 356, 373 (6th Cir.2008) ("An alternative is not ample if the speaker is not permitted to reach the intended audience." (internal quotation marks and citation omitted)). This flyer rack evidently is intended for adult and
Finally, Defendants' efforts to identify case law that supports their viewpoint-based ban upon J.S.'s distribution of religious flyers are unavailing. First, to the extent that Defendants suggest that Tinker's recognition of the free speech rights of students may not extend to grade school children, the Fifth Circuit thoroughly addressed and rejected this proposition in its recent decision in Morgan, 610 F.3d at 886-89, and the Court finds this analysis persuasive. Certainly, Defendants have not identified any case law support for this principle, apart from a misleading citation to the view of a single judge in Muller v. Jefferson Lighthouse School, 98 F.3d 1530, 1538-39 (7th Cir.1996) (Manion, J.).
In short, the decisions cited by Defendants do not support a public school's outright prohibition of student-to-student distribution of materials, even if this ban is viewpoint-neutral, and even if the ban is limited to elementary school students. Rather, any such viewpoint-neutral restriction upon student-to-student speech may regulate only the time, place, and manner of distribution. The policy put into place by the Defendant school district, which forbids student-to-student distribution of materials anywhere on school grounds at any point in the school day, does not qualify as such a reasonable and permissible time, place, and manner restriction. Accordingly, Plaintiffs have demonstrated a likelihood of success as to their claim of an abridgment of J.S.'s First Amendment right to free speech.
Apart from the Defendant school district's ban upon Plaintiff J.S.'s distribution of religious materials to his classmates, the present motion also implicates Plaintiff Katharine Smith's claim that the district has engaged in impermissible viewpoint discrimination by preventing her from communicating with other parents of Patterson Elementary School students about activities at her church. As discussed earlier, at times in the past, the school operated a so-called "flyer forum,"
Rather than defending this past practice, Defendants contend that they are permitted to close the flyer forum to
DiLoreto, like this case, concerned a school district's decision to deny access to a limited public forum by an individual who wished to communicate a religious message. In that case, the defendant school district permitted advertisements for local businesses to be posted on the fence of a high school baseball field. The plaintiff sought to post an advertisement containing the text of the Ten Commandments, but the school district refused to permit the advertisement to be displayed.
Likewise, in this case, Defendants could permissibly have avoided any further viewpoint-discrimination concerns by discontinuing the school district's program of allowing outside individuals and groups to distribute pre-approved materials to students, and Plaintiffs do not contend otherwise. It further appears undisputed that, as of the July 30, 2010 hearing on Plaintiffs' motion, the Defendant school district had, in fact, closed its flyer forum. In his February 11, 2010 letter to parents, for example, principal Inhulsen stated that "our school district policy only allows school-related material to be sent home with students." (Plaintiffs' Motion, Ex. 7, Inhulsen 2/11/2010 Letter.)
In light of more recent developments, however, it can no longer be said that Plaintiffs' request for preliminary injunctive relief is moot. Specifically, in a supplemental declaration filed on October 18, 2010, Mrs. Smith states that since the beginning of the 2010-11 school year, flyers from outside groups—including advertisements for a volleyball clinic, a basketball league, Lego classes, the Davisburg Heritage Festival, and community-wide Halloween-related activities—have been sent home with Patterson Elementary students, including her kindergartner. (See Smith 10/18/2010 Decl. at ¶¶ 7-9.) Consequently, the Defendant school district's principal defense to this claim for injunctive relief—namely, that there is no longer a "flyer forum" in existence for the distribution of non-school-related materials from outside groups or individuals to Patterson students and their parents—is no longer viable. Moreover, if the flyer forum has been reopened—as appears to be the case from Mrs. Smith's recent submission—the Defendant district cannot permissibly deny Mrs. Smith access to this forum on the sole ground that she seeks to distribute materials promoting religious activities. See, e.g., Hills, 329 F.3d at 1050-53 (finding that the defendant school district in that case had engaged in impermissible viewpoint discrimination by refusing to permit the distribution of brochures for a religious youth summer camp through the district's flyer forum). In light of the reopening of this forum, then, Plaintiffs have demonstrated a likelihood of success on their claim that Mrs. Smith is being denied access to this forum on impermissible, viewpoint-based grounds.
The remaining three prongs of the standard for determining whether to award preliminary injunctive relief require little further discussion. First, the Supreme Court has recognized that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976); see also Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville & Davidson County, 274 F.3d 377, 400 (6th Cir.2001). In this case, Plaintiff J.S. has been denied the opportunity to distribute invitations to his classmates for various events at his church, including the 2009 and 2010 youth summer camps, the harvest party in October of 2009, and the "Power of One" event in April of 2010. For her part, Mrs. Smith has been denied access to the Defendant school district's flyer forum, through which she could have informed Patterson students and their parents about upcoming activities at her church. As explained above, the present record indicates that each of these denials resulted in an abridgment of Plaintiffs' First Amendment right to free speech. This suffices to show irreparable injury in the absence of an award of preliminary injunctive relief.
As Plaintiffs observe, given that they have established a strong likelihood of success on their claims of abridgements of their right to free speech, there can be no serious claim that Defendants or others will suffer substantial harm from a preliminary injunction protecting against further infringements of this First Amendment right. See Deja Vu, 274 F.3d at 400 ("[I]f the plaintiff shows a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to inhere in its enjoinment."). Defendants' only response on this point is that discord might result if Plaintiffs are permitted to distribute religious flyers to students, where parents evidently have "approached the District and threatened to sue the District if religious materials are passed out to their grade-school children." (Defendants' Response Br. at 21.) Yet, as Plaintiffs point out, if Defendants are preliminarily enjoined from infringing their First Amendment right to distribute religious materials to Patterson students and their parents, whether through non-disruptive student-to-student delivery or through submission to the flyer forum, "following the law brings no legal harm to Defendants," (Plaintiffs' Reply Br. at 14), and nothing in this injunctive relief would threaten to transgress the First Amendment rights of others. This is particularly so where the Defendant district retains the right to grant prior approval before any materials submitted by Plaintiffs may be distributed to Patterson students and their parents. See M.A.L., 543 F.3d at 847-48.
The Sixth Circuit has recognized that "it is always in the public interest to prevent violation of a party's constitutional rights." Deja Vu, 274 F.3d at 400 (internal quotation marks and citation omitted). Again, because Plaintiffs have established a strong likelihood of success on their claims (i) that the Defendant district's ban on student-to-student distribution of materials violates J.S.'s First Amendment right
For the reasons set forth above,
NOW, THEREFORE, IT IS HEREBY ORDERED that Plaintiffs' March 22, 2010 motion for preliminary injunction (docket # 11) is GRANTED IN PART, in accordance with the rulings in this opinion and order. IT IS FURTHER ORDERED that counsel for the parties shall promptly meet and confer in an effort to agree upon the language and terms of an appropriate order awarding the preliminary injunctive relief granted in the present ruling. IT IS FURTHER ORDERED that, within
In the event that the parties are unable to agree upon the language of a proposed order, IT IS ORDERED that, within
It certainly is open to question whether the distribution of this pamphlet to students comports with the school district's claim that, under current policy, only school-related materials will be sent home with students. Yet, whether or not J.S.'s teacher exercised sound judgment or acted in accordance with district policy in sending this pamphlet home with the students, it nonetheless appears to be the case that a school employee, and not an outside group or individual, initiated the distribution of this pamphlet to students. It seems doubtful that this isolated action taken by a school employee could be construed as a school district decision to reopen the flyer forum for distribution of non-school-related materials to students.
Under these circumstances, the Court declines to address the constitutionality of Policy 9370 (whether facially or as applied) at the present juncture. As the result of the Court's rulings on Plaintiffs' motion, J.S. will be permitted to distribute invitations to church events to his classmates, subject to reasonable time, place, and manner restrictions, and Mrs. Smith likewise will be permitted to submit materials for distribution through the school district's flyer forum. If district officials proceed to invoke Policy 9370 as a basis for denying Mrs. Smith's request that particular materials be distributed through the flyer forum, Plaintiffs may then return to the Court and challenge this application of the policy. In the meantime, however, the Court sees no immediate need to consider the constitutionality of this policy, where it arguably has not yet been applied in a manner that has caused Plaintiffs any injury, and where Plaintiffs' facial challenge to this policy is better resolved under a complete evidentiary record as part of the overall consideration and disposition of Plaintiffs' claims on the merits, rather than under the limited record that exists at this preliminary stage of the proceedings.