*3 Before RICHARD S. ARNOLD and WOLLMAN,1 Judges, Circuit

WOLLE,2 Judge. District Wolle, Roger Judge L. Wollman became Chief of 2. The Honorable R. Charles United Appeals Judge the United States for Court States District for the Southern District Iowa, Eighth April sitting by designation. Circuit on

WOLLMAN, Judge. relayed Chief Stodden in turn the complaint to Cook, Dr. Jerry principal, the school who Henerey appeals Adam from the district determined that should be dis- summary judgment grant court’s3 qualified from student election for his City favor of the St. Charles School failure to (District) comply with School Board Rule § District this 42 U.S.C. KJ-R, required which get pri- students to action based a claimed violation of the affirm. principal First Amendment. We from the school assistant before distributing any I. subsequent materials. A count of the Henerey, sopho- Mareh then a votes that Henerey revealed had received School, High applied more at St. Charles majority junior votes class junior run president an president. upcoming student council election. Al- *4 action, Henerey then filed alleging this though candidacy open was all to members § that the District 42 violated U.S.C. 1983 class, sophomore of the those seeking to by suppressing his First Amendment right required Mary run were to meet with speech. to free The district court found Stodden, advisor, the student council that although dispute a material existed sign obligation. a contract of the Under Henerey’s whether conduct constituted contract, agreed terms of the candidates constitutionally protected speech, the rule obey Henerey all school rules. After restricting types the electioneering ma- contract, signed the a member of the stu- terials that could be distributed was consti- him campaign dent council advised that all tutional. The court concluded that the flyers posters approved had to be student election a school-sponsored prior the administration to distribution. activity place that took in nonpublic fo- officially campaign began April rum Dr. and that Cook’s decision to dis- 7, Henerey obtained from qualify Henerey for his failure to comply campaign slogan, the administration for his with Rule KJ-R was related Henerey, “Adam The Safe Choice.” On the legitimate pedagogical goals. school’s 7, evening April Henerey the was in- Accordingly, granted the District’s mo- formed Stodden that other candidates summary judgment. tion for that complained posters had his had been posted over theirs and that references to demeaning. other candidates were Stod- II. Henerey den then told that all materials grant summary We review a approved by needed to be the administra- judgment de novo. See Hossaini v. West tion. Ctr., 1140, ern Missouri Med. 140 F.3d 10, 1997, morning On the of April (8th Cir.1998). 1142 Summary judgment election, day handed out in evidence, if granted should be viewed hallways the school some eleven condoms light most favorable nonmov attached to bearing campaign stickers ing party, genuine indicates that no issue given slogan. He administration that moving material fact exists and no prior planned indication he to dis- party judgment is as a matter entitled condoms or tribute that his 56(c). id.; of law. See Fed.R.Civ.P. in any way top- involve sex-related

ics. Although students do not “shed rights their constitutional to freedom of counting

As Ms. Stodden was the bal- lots, speech expression at the schoolhouse complained a student to her about Indep. gate,” distribution of condoms. Ms. Tinker v. Des Moines Com- Shaw, 3. The Honorable Charles A. United of Missouri. Judge States District for the Eastern District

1132 Dist., 503, 506, forum, authority of schools to exercise 89 393 U.S. mimity Sch. (1969), at its 733, speech the content of is L.Ed.2d 731 Con- control over 21 S.Ct. “teachers, par- compel See, at does not 484 U.S. greatest. e.g., stitution surren- ents, (school school officials to and elected 276, may censor offi 108 S.Ct. 562 school public of the American der control Fraser, 478 U.S. newspaper); cial student students.” Bethel public school system (school 678, may 3159 ban at 106 S.Ct. Fraser, 675, U.S. Sch. Dist. No. 403 suggestive language speech be sexually (1986) 3159, 686, 92 L.Ed.2d 549 106 S.Ct. Lacks v. Fer high assembly); fore school 526, Tinker, 89 S.Ct. 393 U .S. (quoting R-2, guson Reorg. Sch. Dist. J., (Black, The constitu- dissenting)). Cir.1998) (school may profani ban students “are public rights tional class), writing cert. de ty in creative automatically coextensive with — -, nied, U.S. Fraser, settings,” in other of adults (1999); 872 F.2d at Poling, L.Ed.2d and a 478 U.S. (school may insulting ban references speech tolerate is school need not In the speech). council election mission, pedagogical with its inconsistent forum, officials of a absence could not though government even limit a a school- student’s outside of the school- suppress if “rea the limitation is sponsored v. Kuhl- See Hazelwood Sch. Dist. house. sonably legitimate pedagogical related to meier, 260, 266, 108 concerns.” (1988) Fraser, 478 *5 (citing 592 U.S. L.Ed.2d . 108 S.Ct. 562 3159); 685, Poling Murphy, v. at 106 S.Ct. (6th Cir.1989) (“Limita- 757, F.2d 762 872 A. that would be unconstitu- speech tions on are not nec- tional outside the schoolhouse it.”). within essarily unconstitutional campaign that the for Henerey argues Therefore, analyze courts must First fo president must be considered a alleged by Amendment violations students public expression. rum for The nature of special “in the characteristics of light of degree protection the forum affects the Hazelwood, the environment.” 484 expressive affords to the First Amendment Tinker, 266, (quoting at 108 S.Ct. 562 U.S. activity, public even within the school set 733). 506, 89 S.Ct. See, .g., e 484 U.S. at ting. Purely speech by stu individual 267, (conducting forum anal constituting “personal expression dents ysis step addressing as first student prem on the happens that occur claim); Perry Perry Educ. v. speech Ass’n subject high degree ises” is to a of First Ass’n, 37, 44, 460 U.S. Local Educators’ protection. Amendment (1983) (“The 948, 74 L.Ed.2d 794 S.Ct. However, .S. at 108 S.Ct. 562. U right public of a of access to existence school officials restrict even individual by and the standard which limita property “materially expression student that and right such a must be evaluated upon tions require with the substantially interfere^] on the character of the depending differ oper in the appropriate discipline ments of issue.”); Muller v. property Jefferson school,” ation of the or that “would sub (7th Sch., Lighthouse stantially interfere the work of the with Cir.1996) (prior restraint of student the of other impinge upon school or forum). in nonpublic not unconstitutional Tinker, 393 U.S. at students.” (citations quotation and internal S.Ct. 733 Although school facilities are tra omitted). marks fora, they may ditionally nonpublic deemed school authori designated public be when expressive conduct at

When policy practice opening or ties have in the context of a school- issue occurs by general for use public that is not also a them indiscriminate sponsored speak- of the individual segment public and that views by or some public, See Good organizations. student to the erroneously such as er are not attributed v. School Dist. Sports Club Although be school.” Id. considered News/Good Ladue, F.3d City “school-sponsored,” expressive activities Cir.1994) Hazelwood, 484 U.S. at (citing sense, they in a must be “curricular” broad 562). government “The “occur in a classroom need not traditional by public create a forum inaction does not supervised setting, long they by so as are discourse, limited but by permitting faculty designed impart members and by intentionally opening a nontradi only particular knowledge or skills to student public for discourse.” Hazel tional forum (footnote participants and audiences.” Id. wood, (quot 108 S.Ct. 562 484 U.S. omitted). Legal ing NAACP Cornelius Defense Fund, Inc., 788, 802, supervised by The election was and Educ. (1985)). 87 L.Ed.2d 567 serving school administrator as stu advisor, council it ran for dent and a limit Here, open the District did not It period ed time set the school. campaign public, to the obvious operated auspices under the of the school ly intended to control associat administration, any member of the Only en ed with the student election. could have concluded candidacy eligible rolled students were campaign materials were distributed election, an sought and those who implied approval of the school. position required sign elected were Moreover, the election was conducted they obey agreement stating addition, pedagogical purposes allowing all can school rules. approved prior materials had to be to their leadership didates to learn skills and ex Thus, there distribution or use. because is posing the general body no that the school intended evidence process. democratic Accordingly, we “policy practice” relinquish its control agree with the district court that the elec designate it a forum over the election and school-sponsored activity tion was a *6 News, expression, see Good part was a of the school’s curriculum. See we conclude that the election F.3d (there Poling, 872 F.2d at 762 can be “no was conducted within the context of a non doubt” that a student election is a school- public forum. sponsored activity for First Amendment purposes). setting, question In this 2. becomes whether the District’s decision to question The next whether is disqualify from the election was Henerey’s expression school-spon legitimate pedagogi related speech sored or independent Hazelwood, cal concerns. See U.S. speech. See 484 U.S. at 270- 273, 108 S.Ct. 562. may A 108 S.Ct. 562. exercise speech greater control over student ut B. during participation school-spon tered activity expressed during sored than that 1. “students, activity independent because We turn first the District’s con parents, public might and members of the tention that the sole basis for its decision reasonably perceive school-sponsored [the disqualify Henerey was his violation of imprimatur speech] to bear the portions school rules. The relevant 562. Such school.” Id. at Rule KJ-R read as follows: participants also “assure[s] control learn whatever lessons the is de IN THE ADVERTISING SCHOOLS teach, signed to that readers or listeners KJ-R) (Board Policy exposed are not to material be maturity, inappropriate for them level of 1. Places may- Henerey argues that because other stu- of such items The distribution materials, approved by candy such as in a location dents distributed place take gum, prior approval school. without and were disciplined, not the District’s decision to disqualify him from the election was based Approval 3. message. on the content of his The Dis- must obtained the be responds by pointing handing trict out that day prin- earlier from the previous day long- out on election has been a (For principal. ma- cipal or assistant school, standing at the one that practice readily ap- classifiable or terials tacitly approved by has been the adminis- day more than one school provable find in the record to nothing tration. We allowed.) The ar- approved should be challenge representation the District’s stamp ticles will bear the official point, and we that Hen- this thus conclude school, “Approved Distribution selective, erey provided has no evidence of Posting” content-based enforcement of Rule KJ-R. Unacceptable Items ethnic, Hate literature which attacks Henerey argues Rule KJ groups, or racial other religious irre- R prior is unconstitutional on its face as a sponsible publications aimed at en- restraint on and as unconstitution violence; hostility couraging por- ally vague. Generally, prior restraints are nography, obscenity and materials subject highest degree of scrutiny unsuitable for distribution regulation and are the form of most diffi unacceptable schools is as well as: cult to sustain under the First Amend judged a. Materials to spe- libelous ment. See Near v. Minnesota ex rel. Ol cific individuals in or out of school son, 697, 713-20, designed b. Materials for commercial (1931). However, prior L.Ed. 1357 purposes pro- advertise or —to secondary restraint within product amote or service for sale per schools is not se unconstitutional. See or rent. n. c. Materials designed which are 562; Sch., Bystrom v. Fridley High Indep. solicit funds approved by unless Sch. Dist. No. superintendent or his assistant Cir.1987). the principal d. Materials is con- vagueness, As to Henerey argues *7 materially disrupt vinced would effectively gives prin that Rule KJ-R class work or involve substantial cipal unfettered discretion to determine or disorder invasion of the unacceptable. what materials are As we of others however, in Bystrom, noted “a high degree Acceptable Materials generality necessary by of is made All in proscribed materials “Unac- (in subject matter. The concepts involved ceptable items”. decency, vulgarity, likelihood of material disruption) general by very are their na position The District’s is that it disci- ture.” 822 F.2d at 750. The rule furthers plined Henerey simply he because legitimate public several interests comply Rule failed with KJ-R. The in Bystrom, including schools identified District contends that it acted assuring the interest in that legitimate because it has a in “school hours interest dis- ciplining obey property primarily students who do not and school are devoted rules, noting repeated warn- to education as embodied in the despite district’s curriculum,” ings, Henerey prior ap- prescribed failed to obtain and the interest in proval for “preserving] materials. some trace of calm on school 762). property.” gener (quoted 822 F.2d 750. More in Poling, 872 F.2d at KJ-R to be “one ex ally, appears Rule “discipline, These shared values include ‘legitimate of the and substantial pression courtesy, respect for authority.” Pol- in community promoting respect interest addition, ing, 872 F.2d at 762. In authority they traditional values be a school must be able to take into ac- ” moral, social, political.’ or Id. at 750-51 maturity count the emotional of the in- (quoting of Educ., Board Island Trees Un tended audience in determining whether Pico, Free Sch. Dist. No. 26 v. ion to disseminate student poten- 853, 864, 73 L.Ed.2d tially sensitive which topics, might range (1982) Brennan, J., (opinion of joined from the existence of in Santa Claus an Stevens, JJ., announcing Marshall and elementary school setting particu- Court)); judgment Bull v. cf. lars of teenage sexual in a high Dardanelle Pub. Sch. Dist. No. A setting. school must also re- (E.D.Ark.1990) F.Supp. (up tain authority sponsor refuse to holding policy preventing students from that might reasonably be running for council based on “lack coop perceived to drug advocate or alcohol eration, class, rude conduct excessive use, sex, irresponsible or conduct other- tardies, absences or lack of responsibility, wise inconsistent with “the shared val- inappropriate or behavior in or out order,” ues of a civilized social or to school”). Moreover, the rule allows the any associate the school with position period a reasonable time —twen other than neutrality polit- on matters of See, ty-four hours—to evaluate materials. controversy. ical Muller, e.g., 98 F.3d at (uphold ing twenty-four-hour prescreening similar 484 U.S. at 108 S.Ct. 562 requirement school setting as a Fraser) (citations omitted). (quoting As restraint). prior reasonable Accordingly, it, put the Sixth Circuit “[c]ivility is a we do not find the rule unconstitutional on legitimate pedagogical Poling, concern.” face, agree its and we with the district too, So, 872 F.2d at 758. is compliance court that Dr. disqualify Cook’s decision to Bull, with school rules. See F.Supp. comply for his failure to at 1459. represented rule response reasonable qualita- distribution of condoms is noncompliance. Poling, See tively different from the handing out of at 763-64. gum. The one can be read to signify approval encouragement of teen- C. age activity. sexual The other constitutes assuming, purpose Even for the bestowing the traditional of a de minimis argument, action in hand gratuity not any associated with social or ing out the condoms constituted the ex political message. School districts have an pression constitutionally protected interest in maintaining decorum and in speech and that Dr. action in Cook’s dis preventing the creation anof environment qualifying Henerey was motivated learning impeded, in which might be disagreement with the content of that particularly interest that was strong *8 speech, it does not follow a First present case because the condom distribu- necessarily Amendment violation occurred. tion occurred within the context of a As the Sixth Circuit observed in a case school-sponsored Henerey’s election. dis- election, involving a student council “[t]he tribution of condoms carried with it legitimate pedagogical universe of con school, implied imprimatur of the see by cerns is no means confined to the aca 484 U.S. at Thus, Poling, demic.” 872 F.2d at 762. likely for the other students would most

for example, by “schools must teach exam ple complied have assumed that the shared values of a civilized social Fraser, approval order.” 478 U.S. at 106 S.Ct. with Rule KJ-R and had secured here, not and thus affirm The has a le- was the case we for District the distribution. in extracur- divorcing summary judgment. interest its gitimate from controversial programs ricular affirmed. judgment is sex, as see teenage such topics, sensitive WOLLE, Judge, dissenting. District to brought that would be interest view, my First Adam were the school administration naught a Amendment claim deserved better fate those whose conduct discipline allowed to summary judgment. Genuinely than dis- necessarily embroil those extracur- favor, issues, in puted factual decided in the from very topics activities ricular in might jury resulted verdict well have to remain they which were free. relief in granting money him some dam- any teenage be doubt that Nor can there ages from more of the one or defendants topic in the sex is a controversial junior who his election as disallowed example, parents have For schools. High president of St. Charles School. school against suit districts be- brought I on the reason that focus school exposed were them children to offen- cause principal disqualifying Henerey gave materials con- graphic sive or without their office, a holding from his elected reason See, e.g., sent. Parents United Better this have been pre- record discloses Schools, v. School Inc. Dist. Philadel- censoring text for the content of his safe- (3d Educ., phia Cir. Bd. message. Henerey sex had obtained ad- Hot, 1998); Sexy Pro- Brown and Safer vance approval campaign slogan— of his (1st Cir.1995). ductions, Inc., F.3d 525 Henerey, “Adam The Safe Choice.” On least, At have an very districts election, the date he offered of the to hand requiring prior any- interest notice from twenty out stickers with about in- one to introduce students to proposing any condoms who requested materials of an explicit formation or sexual principal’s only one. The stated reason nature, that would notice enable school disqualify Henerey his failure to com- to avoid or mini- administrators at least KJ-R, ply with Board Rule quoted School costly mize the threat confrontations rule, part majority opinion. That accommodations with arranging for those entitled, IN “ADVERTISING THE Thus, strong objections such material. SCHOOLS”, may given inadequate have within the was well District’s notice to that materials Henerey students disqualify Henerey for his actions dis- might wished to distribute need advance material that ran tributing counter to the while and buttons other pedagogical concern District’s and its edu- handing out candidates were would not mission. cational need approval. Arguably advance the rule Henerey adequate also give failed to notice Conclusion might his materials handing out cause youth education Nation’s is “[T]he disqualification serving in the from elective primarily responsibility parents, office he sought. teachers, and state and local school offi drawing I jurors, believe reasonable in- cials, and not of federal Hazel judges.” evidence, ferences could from the find that wood, 484 “It is S.Ct. 562. and other administra- when the decision to a school- only censor applied tors Rule KJ-R to Henerey ... sponsored expres vehicle of student only they and not when others realized sion no valid purpose has educational that Henerey’s message preven- connoted directly the First Amendment is so tion of use sexual diseases of such sharply implicated require judicial as protective devices as condoms. From the protect intervention to students’ constitu *9 (citations, principal’s of materials approval Id. like rights.” quo tional internal omitted). other tation marks and brackets That buttons distributed candi- Henerey’s to allow mate- dates and refusal

rials, it was the jury could well decide approval process not the

message and junior presidency. cost jurors Reasonable could also conclude that disqualification punishment dispro- Henerey’s failure to receive portionate specific advance to distribute his them. requesting materials to students disagree suggestion I that safe high school students is such a among sex topic controversial that school officials school-spon- in a squelch its discussion sored school election contest. respectfully

I dissent from the therefore summary rejection of Adam First Amendment claim. America, STATES of

UNITED Appellant, EAGLEBOY, Wayne Appellee.

No. 99-2575. Appeals, United States Court of Eighth Circuit. Submitted Nov. Decided Dec.