Appeal from orders entered in the United States District Court for the Northern District of New York, James T. Foley, Chief Judge, denying preliminary and permanent injunctive relief under 42 U.S.C. § 1983 for alleged First Amendment violations. Reversed and Remanded.
Before Kaufman, Chief Judge, and Newman and Kearse, Circuit Judges.
Public education in America enables our nation's youth to become responsible participants in a self-governing society. To perform this critical function effectively, professional educators must be accorded substantial discretion to oversee properly their myriad responsibilities. But our willingness to defer to the schoolmaster's expertise in administering school discipline rests, in large measure, upon the supposition that the arm of authority does not reach beyond the schoolhouse gate. When an educator seeks to extend his dominion beyond these bounds, therefore, he must answer to the same constitutional commands that bind all other institutions of government. Where, as in the instant case, school officials bring their punitive power to bear on the publication and distribution of a newspaper off the school grounds, that power must be cabined within the rigorous confines of the First Amendment, the ultimate safeguard of popular democracy. We hold that these limits have been exceeded in the case before us.
Granville is a small, rural community located some sixty miles north of Albany, in upstate New York. In this quiet town, Donna Thomas, John Tiedeman, David Jones, and Richard Williams, all students in the Granville Junior-Senior High School,*fn1 conceived a plan in November 1978 to produce a satirical publication addressed to the school community. As their project evolved in succeeding months, the students decided to emulate National Lampoon, a well-known publication specializing in sexual satire. After soliciting topics from their fellow students, the editors drafted articles pasquinading school lunches, cheerleaders, classmates, and teachers. Articles on masturbation and prostitution as well as puzzles and a cartoon were also prepared. Some of the initial preparation for publication occurred after school hours in the classroom of a Granville teacher, George Mager. Intermittently, the students conferred with Mager for advice on isolated questions of grammar and content. At most, it appears that only an occasional article was composed or typed within the school building, always after classes. Apart from these scant and insignificant school contacts, however, they worked exclusively in their homes, off campus and after school hours.
In mid-January, Mager first noticed a draft of an article in the students' papers and immediately informed Granville's Assistant Principal, Frederick Reed, of his discovery. Shortly thereafter, Reed summoned Tiedeman and discussed with him the "dangers" of publishing material that might offend or hurt others. Specifically, he told Tiedeman that a similar publication several years before had culminated in the suspension of the students involved. Accordingly, Reed cautioned Tiedeman to refrain from mentioning particular students and to keep the publication off school grounds.
In response to Reed's admonition, Tiedeman and his young associates deleted several proposed articles and excised students' names from others. Moreover, they assiduously endeavored to sever all connections between their publication and the school. A legend disclaiming responsibility for any copies found on school property was affixed to the newspaper's cover. Indeed, all 100 copies of the paper were produced by the facilities of a community business. Once completed, the publication was stored, with Mager's permission, in his classroom closet. At the end of each school day, the students retrieved a number of copies and sold each one for twenty-five cents to classmates*fn2 at Stewart's, a store in Granville. Within a week, all but seven copies were sold, and receipts totalled $11 to $13.
The publication, entitled Hard Times,*fn3 first surfaced within the school on January 24 when a teacher confiscated a copy from a student and presented it to Granville's principal, William Butler. Butler and Don Miller, Superintendent of Schools, initially agreed to take no action, at least until they could assess the publication's impact. On January 24 and 25, schoolwide examinations were conducted without incident, demonstrating the soundness of their initial decision. Subsequently, however, Beverly Tatko, President of the Granville Board of Education, learned of the paper's existence through her son, Peter. Shocked and offended, Tatko met with Miller and Butler on January 29 to ascertain how the school officials intended to proceed. Moreover, Tatko intimated her dissatisfaction with the administrators' inaction, and suggested convening a school board meeting to discuss the episode. Immediately Butler instituted an investigation. Mager, surrendering the seven remaining copies deposited for storage in his closet, informed Butler of his limited role in the paper's composition. Moreover, the principal determined that the four appellants were primarily responsible for publication and dissemination of the paper. Miller then telephoned each of the students' parents and invited them to attend a school board meeting that evening.
At the meeting, Butler summarized the results of his investigation and distributed copies of the publication. Later, Miller and Butler, following consultation with the Board of Education, decided to impose a number of penalties: (1) five-day suspensions to be reduced to three days if the student prepared an essay on "the potential harm to people caused by the publication of irresponsible and/or obscene writing"; (2) segregation from other students during study hall periods, throughout the month of February and possibly longer if an acceptable essay were not submitted; (3) loss of all student privileges during the period of suspension; and (4) inclusion of suspension letters in the students' school files. These sanctions took effect on February 1, when Butler personally informed each student of the punishment and then telephoned their parents to explain the decision. At the same time, he prepared a letter to the parents describing Hard Times as "morally offensive, indecent, and obscene," and outlining the penalties imposed.
On February 6, the students brought this suit under 42 U.S.C. § 1983 in the Northern District of New York seeking injunctive and declaratory relief from alleged deprivations of their First and Fourteenth Amendment rights. The Granville Board of Education, Butler, Miller, Reed, Tatko, and the other individual board members were named as defendants. That very day, Judge Foley heard oral argument on the plaintiffs' application for an order temporarily restraining all punishment. The able district court judge enjoined the essay requirement,*fn4 but otherwise denied the requested relief pending a hearing on the students' motion for a preliminary injunction pursuant to Fed.R.Civ.P. 65. Thus the students had served their full five-day suspensions before Judge Foley heard argument on their request for preliminary injunctive relief. When the hearing finally was held on February 21,*fn5 the parties called twelve witnesses to explain the events relating to the students' suspensions. In addition, both sides submitted affidavits to assist the court in gauging the paper's likely impact upon Granville's students. Defendants' experts, three school administrators from neighboring towns, predicted in their affidavits a "devastating" effect on public education, whereas plaintiffs' expert, an education professor, asserted in his affidavit that "no competent school administrator" would claim that Hard Times would disrupt the educational process of high school students.
Judge Foley denied plaintiffs' motion on May 2, ruling there had been an insufficient showing of likely success on the merits to warrant a preliminary injunction. In support of this conclusion, he noted that Beverly Tatko's professed "shock" at the paper's contents, together with Post hoc forecasts of possible disruption in the affidavits of defendants' experts, satisfied him that Hard Times was potentially destructive of discipline in Granville Junior-Senior High School, and therefore not protected by the First Amendment.*fn6 Although no school rule specifically governed student publications, the district court judge held that the plaintiffs' activities fell within the scope of a school regulation adopted pursuant to New York Education Law § 3214, subd. 6(1), authorizing suspension of students who are "insubordinate or disorderly, or whose conduct otherwise endangers the safety, morals, health or welfare of others."
The district court later consolidated the proceedings on the merits, and denied the plaintiffs' request for a permanent injunction. The plaintiffs have filed timely appeals from the orders denying both temporary and permanent relief.*fn7
The proper resolution of this appeal requires us to measure the sanctions imposed by Granville school officials against the yardstick of our constitutional commitment to robust expression pursuant to the First Amendment. It is appropriate, therefore, to review the fundamental principles that buttress our deeply held preference for ...