Michelle Heinkel v. School Board of Lee County , 194 F. App'x 604 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13813 August 22, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00184-CV-FTM-29-SPC
MICHELLE HEINKEL,
by and through her parent and next friend Debra Heinkel,
NATE CORDRAY,
Plaintiffs-Appellants,
versus
SCHOOL BOARD OF LEE COUNTY, FLORIDA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 22, 2006)
Before BLACK, BARKETT and COX, Circuit Judges.
PER CURIAM:
Michelle Heinkel and Nate Cordray brought this action against the School
Board of Lee County (“the School Board”) seeking declaratory relief, injunctive
relief, and damages for the School Board’s alleged violation of Plaintiffs’
constitutional rights. Specifically, Plaintiffs alleged that the School Board maintains
a facially unconstitutional policy regarding distribution of written materials to
students (“the Policy”) and that the Policy had been unconstitutionally applied to
deny them their rights to free speech, free exercise of religion, freedom from
establishment of religion, and equal protection. The district court dismissed
Cordray’s claims for lack of standing and granted summary judgment for the School
Board on Heinkel’s claims. Plaintiffs appeal the judgment only as to their First
Amendment speech claims, arguing: (1) Cordray has standing to challenge the Policy,
(2) the Policy is a facially unconstitutional prior restraint on speech, and (3) the
Policy was unconstitutionally applied to bar their speech. We affirm in part and
reverse in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
In early April 2003, Freedom to Learn, a non-profit organization, informed the
School Board that students in its schools intended to commemorate The Day of
Remembrance at school on April 11, 2003. (R.1-26 ¶¶ 12, 27, 34.) The Day of
Remembrance is a day “set aside to remember the 40 million children who have been
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lost to elective abortion and to remember the pain experienced by women who have
had an abortion.” (R.1-26 ¶ 11.) Freedom to Learn stated that students in the Lee
County schools intended to distribute written materials at school. (R.1-26 ¶¶ 31-34.)
In response, the School Board informed Freedom to Learn that the School Board had
a written policy governing distribution of written materials on school properties and
provided Freedom to Learn with a copy of that policy.1 (R.1-26 ¶¶ 35, 39.) On April
1
The Policy identified is School District of Lee County Administrative Regulation 3.15,
entitled “Advertising.” (R.1-26 Ex. B.) It states, in pertinent part:
(4) Advertisement Through the Distribution of Handouts
(a) Any entity requesting handouts be distributed to
students at a District school shall submit the handout to the
Superintendent or his/her designee for consideration.
(b) The Superintendent or his/her designee shall apply the
standards in paragraph (1)(a) when considering approval.
Paragraph (1)(a) states:
The Principal of each school is given authority to approve
advertising on the school campus in the form of signs or other
displays containing the company or organization name. The
Principal is also given authority to approve use of the school
campus or a portion thereof as part of an advertisement. Principal
will give approval for such advertising only when such results in
the school receiving funds or property from the advertiser.
Lee County Superintendent of Schools James W. Browder testified that, despite the statement in
Paragraph 4, Paragraph (1)(a) does not provide all the applicable standards for his consideration
of handouts. He understands that he is to apply the standards in Paragraph (1)(b). (Browder
Dep. at 15-16.) Paragraph (1)(b) of the Policy states:
The Principal shall apply the following standards in deciding
whether to approve advertising.
1. No advertisements may be obscene or promote products
or services, which minors may not legally purchase or use.
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10, 2003, pursuant to the Policy, Freedom to Learn gave Lee County Superintendent
of School James W. Browder a copy of the materials it claimed students wished to
distribute. (R.1-26 ¶ 45.) Later that same day, Browder denied Freedom to Learn’s
request to distribute the written materials, explaining that the literature would “tend
to create a substantial disruption in the school environment.” (R.1-26 Ex. C.)
On January 29, 2004, Browder sent a letter to Freedom to Learn asking that any
request to distribute materials on the 2004 Day of Remembrance be made at least one
week in advance of the desired distribution date. (R.1-26 Ex. F.) No such request
was made.
During the 2003-2004 school year, Heinkel was a seventh grader at Cypress
Lake Middle School, a Lee County school that includes sixth through eighth grades.
(R.1-26 ¶ 7.) Cordray was a twelfth grader at Riverdale High School, a Lee County
2. No advertisements may contain libelous material.
3. No advertisement shall include political, religious or
organizational symbols and shall be non-proselytizing.
4. No advertisement may be approved which would tend to
create a substantial disruption in the school environment.
While the written Policy appears to apply only to commercial speech and not to student
distribution of non-commercial materials, the School Board maintains that it applies to all
distributions of written materials on school property. (Browder Dep. at 8-10, 18, 25.) Therefore,
for purposes of this lawsuit, the Policy includes the School Board’s unwritten rule that the Policy,
including the standards in Paragraph (1)(b), extends to all distributions of written materials on
school property.
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school that includes ninth through twelfth grades.2 (R.1-26 ¶ 19.) To observe the
2004 Day of Remembrance, Heinkel wished to wear a Day of Remembrance t-shirt,3
take a vow of silence during non-instructional time, and distribute materials about
abortion and abortion alternatives to her classmates during non-instructional time.
(R.1-26 ¶¶ 32, 33.)
Though neither Heinkel nor any other student had made a request to distribute
written materials on the Day of Remembrance, Heinkel filed this lawsuit, through her
mother, on March 26, 2004. In the complaint, she alleged that the School Board’s
application of the Policy had denied her the opportunity to distribute pro-life
literature on the Day of Remembrance in 2003 and she sought an injunction
forbidding the School Board from applying the Policy to deny her that opportunity
again in 2004.
After the district court denied Heinkel’s request for an injunction on April 14,
Heinkel faxed two letters to Browder, on April 14 and 15, requesting permission to
distribute specific pieces of pro-life literature on April 16, 2004, the 2004 Day of
Remembrance. (R.1-26, Ex. G.) On April 15, Heinkel’s attorney also faxed Browder
2
Cordray withdrew from Riverdale High School during the pendency of this lawsuit in the
district court. He is no longer a student in any Lee County school. (R.2-71 at 9.)
3
The front of the t-shirt says: “Day of Remembrance, 45 Million lost to abortion since
1973, Remembering in silence.” The back says: “We give a voice to those who cannot speak.
We stand for those who never could. We remember the 1/3 of our generation lost.” (R.2-53.)
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a letter reiterating Heinkel’s request and stating, “We are also requesting on behalf
of a high school student to distribute the same literature.” (R.1-26, Ex. H.) That
same day, Browder denied Heinkel’s request to distribute the materials at her middle
school, stating in a reply letter that, pursuant to the Policy, he had reviewed the
literature and that he had determined that distribution of “the documents would tend
to create a substantial disruption in the school environment.” (R.1-26, Ex. I.)
Browder did not address distribution of the materials in a high school, nor did he
prohibit any students from wearing the Day of Remembrance t-shirt.
On April 16, Heinkel filed a pleading styled “Verified Amended Complaint for
Declaratory Judgment, Preliminary and Permanent Injunctive Relief and Damages,”
in which Cordray was added as a plaintiff and factual allegations regarding events
subsequent to March 26, 2004, were made.4 (R.1-26.) Subsequently, the parties filed
cross-motions for summary judgment. The district court granted the School Board’s
4
Because this pleading sets forth facts occurring after the original complaint was filed, it
is a supplemental complaint, the filing of which requires leave of the district court. Fed. R. Civ.
P. 15(d). In this case, no motion for leave to file the supplemental pleading was made, and no
leave was granted. However, the School Board made no objection to the supplemental
complaint. The parties fully litigated the issues presented in the supplemental complaint in their
cross-motions for summary judgment. And the district court granted judgment for the School
Board after considering these motions. Thus, while the claims premised on facts alleged solely
in the supplemental complaint were not properly before the district court, they appear to have
been “tried by express or implied consent of the parties,” see Fed. R. Civ. P. 15(b), and therefore
will be reviewed by this court.
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motion, holding that Cordray lacks standing to maintain the suit and that Heinkel’s
challenges fail as a matter of law. (R.2-71.)
II. STANDARDS OF REVIEW
“We review the district court’s grant of summary judgment de novo, applying
the same legal standard as the district court. Reviewing the record evidence in the
light most favorable to appellant, we must determine if there are any genuine issues
of material fact that preclude judgment as a matter of law.” Coleman v. Miller, 117
F.3d 527, 529 (11th Cir. 1997) (citation omitted). We review the factual findings of
the district court for clear error. Fed. R. Civ. P. 52(a).
III. DISCUSSION
A. Standing
The district court dismissed Cordray because it held that he lacked standing to
maintain a lawsuit against the School Board. The district court supported this holding
with a factual finding that there is no evidence that Cordray actually sought
permission to distribute the literature. That finding is not clearly erroneous; indeed,
it is supported by the record. In arguing that he suffered injury-in-fact, Cordray relies
on a April 14, 2004 letter from Freedom to Learn to Browder, which states, “We are
also requesting on behalf of a high school student to distribute the same literature on
the Day of Remembrance, April 16, 2004.” (R.1-26, Ex. H.) Cordray contends that
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he was that high school student. There is no evidence in the record, however,
supporting this bare assertion. And, because the record contains no evidence that the
School Board actually applied the Policy to deny Cordray the ability to distribute
materials, Cordray lacks standing to bring an as-applied challenge to the School
Board’s actions.
Cordray also lacks standing to bring a facial challenge to the Policy. A
plaintiff who poses a facial challenge to a policy restraining speech need not actually
have the policy applied to him. City of Lakewood v. Plain Dealer Publ. Co., 486 U.S.
750, 755-56, 108 S. Ct. 2138, 2142-43 (1988); United States v. Frandsen, 212 F.3d
1231, 1235 (11th Cir. 2000). But, he must be within the class of persons to whom the
restraint applies. Frandsen, 212 F.3d at 1235; see also White’s Place, Inc. v. Glover,
222 F.3d 1327, 1329 (11th Cir. 2000) (“‘A court can be most certain that a
constitutional challenge grows out of a genuine dispute where the allegedly
unconstitutional statute interferes with the way the plaintiff would normally conduct
his or her affairs.’”) (quoting Leverett v. City of Pinellas Park, 775 F.2d 1536, 1539
(11th Cir. 1985)). Here, the Policy applies to all persons having a desire to distribute
written materials to students in Lee County schools. (Browder Dep. at 18, 25.) The
record contains nothing to indicate that Cordray maintains such a desire subsequent
to his withdrawal from Lee County schools. Thus, there is nothing to indicate that
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Cordray is a member of the class of persons with standing to pose a facial challenge
to the Policy.
We therefore affirm the district court’s dismissal of Cordray as a plaintiff in
this lawsuit. Heinkel’s standing is undisputed. We proceed with an analysis of her
claims.
B. The Facial Challenge
Heinkel alleges that the Policy is facially unconstitutional. Addressing this
argument in its summary judgment order, the district court recognized that the Policy
is content-based and that it lacks safeguards to guide and restrain the discretion of the
School Board in determining whether and which written materials may be distributed.
The district court described the lack of safeguards as “troublesome.” (R.2-71 at 14.)
We agree.
“There is nothing unconstitutional per se in a requirement that students submit
materials to the school administration prior to distribution.” Shanley v. Northeast
Indep. Sch. Dist., 462 F.2d 960, 969 (5th Cir. 1972).5 But the policy at issue in this
case is a prior restraint on speech that is unconstitutional. Frandsen, 212 F.3d at
1236-37 (“A prior restraint on expression exists when the government can deny
5
In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the Fifth Circuit handed down prior to close
of business on September 30, 1981.
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access to a forum for expression before the expression occurs.”) (citation omitted).
The Policy’s prohibition of all religious and political symbols is a content-based
restriction unsupported by a reasonable belief of the School Board that all such
expression would create substantial disruption in the Lee County schools. Shanley,
462 F.2d at 970 (holding that presumably protected student speech cannot be
prohibited by the school unless there are “facts which might reasonably have led
school authorities to forecast substantial disruption of or material interference with
school activities”) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.
503, 514, 89 S. Ct. 733, 740 (1969)). Also, the Policy contains no time limits within
which the School Board must act to grant or deny a request to distribute documents.6
Thus, it presents significant risks of arbitrary censorship. See Solantic, LLC v. City
of Neptune Beach, 410 F.3d 1250, 1270-71 (11th Cir. 2005) (holding content-based
prior restraints must ensure that decisions are made within a specified time period);
Frandsen, 212 F.3d at 1239 (holding that a prior restraint that fails to limit time in
which decision maker must act presents the risk of arbitrary suppression and is
6
In response to a Suggestion of Mootness issued by this court after oral argument, the
School Board provided a copy of the Policy, as amended August 23, 2005, which now states that
“The Superintendent or his/her designee shall respond to the request within seven (7) calendar
days.” Amended Policy 3.15(4)(b). While the revised Policy now sets a time limit on the
Superintendent’s response to a request, it still “‘fails to put any real time limits on the [decision
maker]’” as to when a yes or no decision must be made as to whether the distribution will be
allowed. Frandsen, 212 F.3d at 1240 (quoting Lady J. Lingerie, Inc. v. City of Jacksonville, 176
F.3d 1358, 1363 (11th Cir. 1999)). Thus, this case is not, moot.
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therefore unconstitutional); Shanley, 462 F.2d at 978 (holding school’s literature
distribution policy was unconstitutional, in part due to lack of time period during
which request had to be reviewed). For these reasons, the Policy is facially
unconstitutional and cannot be used by the School Board. See Frandsen, 212 F.3d
at 1235 (“The remedy if the facial challenge is successful is the striking down of the
regulation.”).
C. The As-Applied Challenge
As discussed above, only Heinkel can properly maintain an as-applied
challenge to the Policy. After a thorough review of the record and briefs, we
conclude that the district court did not err in granting summary judgment for the
School Board on Heinkel’s claim arising out of Browder’s denial of her request.
While Browder’s letter denying Heinkel’s request referred to the Policy, it
specifically stated that Browder had reviewed the materials Heinkel wished to
distribute and was denying her request, not on the basis of the Policy alone, but
because Browder had determined “that the documents would tend to create a
substantial disruption in the school environment.” (R.1-26, Ex. I.) This standard,
originally stated in Tinker, 393 U.S. at 513, 89 S. Ct. at 740, is the appropriate
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measure for restraint of student expression.7 In Tinker, the Supreme Court held that
schools must tolerate student expression unless it would “‘materially and substantially
interfer[e] with the requirements of appropriate discipline in the operation of the
school’” or “collid[e] with the rights of others.” Id. (citation omitted). Although an
“undifferentiated fear or apprehension of disturbance” is not sufficient to meet this
test, schools need not wait until disruption actually occurs in order to prohibit student
expression if they reasonably forecast that the expression will cause substantial
disruption or material interference with school activities. See Tinker, 393 U.S. at 508,
89 S. Ct. at 737; Shanley, 462 F.2d at 970.
Applying the Tinker standard, the district court held the School Board acted
constitutionally in denying Heinkel’s request to distribute pro-life literature to her
classmates. Finding that Browder reasonably concluded that distribution of such
materials would cause a material and substantial disruption to the discipline in
Heinkel’s school, the district court found particularly persuasive the fact that Heinkel
was a middle school student who wished to distribute materials about abortion and
7
Since Tinker, the Supreme Court has refined the framework for analyzing First
Amendment claims in the public school context. As we have explained, “[w]ithin scholastic
nonpublic fora, there are four clear categories of expression: vulgar expression, pure student
expression, government expression, and school-sponsored expression.” Bannon v. Sch. Dist. of
Palm Beach County, 387 F.3d 1208, 1213 (11th Cir. 2004). Tinker involved pure student
expression. As this case also involves only pure student expression, we need not address the
tests for the other forms of expression.
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abortion alternatives to her classmates who ranged in age from 11 to 14. See Walker-
Serrano ex rel. Walker v. Leonard, 325 F.3d 412, 416 (3d Cir. 2003) (“[A]ny analysis
of the students’ rights to expression on the one hand, and of schools’ need to control
behavior and foster an environment conducive to learning on the other, must
necessarily take into account the age and maturity of the student.”). The record also
shows that birth control and abortion are not part of the middle school curriculum.
(Tutko Dep. at 21-22, 33-34.) The School District’s lead health education teacher
explained in her deposition, “we don’t discuss abortion in the school setting” because
it is “a very emotional issue” that “creates some anger,” “polarizes a class,” and
“becomes disruptive to the educational setting.” (Tutko Dep. at 27-28.) These are
valid considerations. See Shanley, 462 F.2d at 973-74 (“If the content of a student’s
expression could give rise to a disturbance from those who hold opposing views, then
it is certainly within the power of the school administration to regulate the time,
place, and manner of distribution with even greater latitude of discretion.”)
We do not find clear error in the district court’s finding that the record thus
reflects “facts which might reasonably have led school authorities to forecast
substantial disruption of or material interference with school activities.” Tinker, 393
U.S. at 514, 89 S. Ct. at 740. As we have stated in the past, “the balancing of
expression and discipline is an exercise in judgment for school administrations and
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school boards, subject only to the constitutional requirement of reasonableness under
the circumstances.” Shanley, 462 F.2d at 975. Accordingly, the district court’s
judgment is affirmed to the extent that it grants the School Board summary judgment
on Heinkel’s claim based upon the denial of her request to distribute literature.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is: (a) reversed to
the extent that it grants summary judgment to the School Board on Heinkel’s facial
challenge and denies injunctive relief, and (b) affirmed to the extent it grants
summary judgment to the School Board on Heinkel’s as-applied challenge. The case
is remanded to the district court for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH
INSTRUCTIONS.
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