Dan SULLIVAN, by next friend, Daniel H. Sullivan, et al.,
Plaintiffs-Appellees, and Paul Kitchen, by next
friend, Anthony Kitchen,
Plaintiff-Appellee-Cross Appellant,
v.
HOUSTON INDEPENDENT SCHOOL DISTRICT, et al.,
Defendants-Appellants-Cross Appellees.
No. 71-2494.
United States Court of Appeals,
Fifth Circuit.
March 15, 1973.
Rehearing and Rehearing En Banc Denied April 30, 1973.
William Key Wilde, Kelly Frels, Bracewell & Patterson, Houston, Tex., for appellants.
Rоbert E. Hall, Eric H. Nelson, Houston, Tex., for appellees.
Before GEWIN, THORNBERRY and CLARK, Circuit Judges.
THORNBERRY, Circuit Judge:
This case arises from the unauthorized distribution of an "underground" newspaper near a high school campus, and presents the now-familiar clash between claims of First Amendment protection on the one hand and the interests of school boards in maintaining an atmosphere in the public schools conducive to learning, on the other. We vacate the supplemental grant of injunctive relief to plaintiff-appellee Paul Kitchen. In doing so, we hope to furnish guidelines that will prove helpful to all parties-students, school officials, and courts-in balancing the competing interests in this delicate and crucial area of the law.
The case is here on appeal from an order of the district court,
Rather than prosecute the appeal, the School District chose to formulate a new set of regulations. A biracial committee of students, school officials, parents, attorneys, and representativеs of other interested groups held hearings and developed an extensive set of regulations dealing with various aspects of school discipline. The rules required prior submission to the school principal of all publications, not sponsored by the school, which were to be distributed on the campus or off campus in a manner calculated to result in their presence on the campus. The principal was given one working day to review the publication before general distribution. If, in the opinion of the principal and School District attorneys, the publication contained "libelous or obscene language or advocate[d] illegal action or disobedience to published rules on student conduct adopted by the Board of Trustees," then the principal could withhold his approval of the publication and it could not be distributed. The rule provided, however, that distribution could not be prohibited because the publication "contained the expression of any idea, рopular or unpopular." Besides requiring prior submission, the regulation expressly permitted distribution before and after school hours on school premises, absolutely prohibited the sale of publications on school premises and the distribution of political campaign material or material consisting primarily of commercial advertising, and required that the publication contain the names of the contributors, editors, and publishers.
In addition to these provisions governing distribution of publications, the nеw regulations contained specific provisions governing suspension procedures. For violation of any published regulation of the School District governing student conduct, a student could be suspended for a reasonable time not exceeding three school days upon the giving of written notice to parents or guardian of the reasons for the suspension. If the suspension was to last for more than three school days or for an indefinite period, the student and his parents or guardian were entitled to written notice of the reasons for suspension and were to be offered a prompt hearing before the principal, at which they could produce witnesses and be assisted by counsel. The student was to be given the right to appeal the principal's decision to the assistant superintendent for a de novo hearing. The assistant superintendent could affirm the principal's decision if the de novo hearing produced substantial evidence supporting it, and the student could appeal the assistant superintendent's decision to the School Board. The School Board adopted the new regulations in February or March 1970, and copies were posted in each school building in the District. Several months later, the event occurred that forms the basis for the instant appeal.
Before classes started on the morning of October 20, 1970, Paul Kitchen, a junior student at Waltrip Senior High School, was standing near an entrance to the campus selling Space City!, an "underground" newspaper, to students as they entered the campus. Gordon Cotton, the Waltrip principal, purchased a copy and scanned its contents. On the second page he noticed a letter, captioned "High Skool is F. . .ed" and containing several other instances of coarse language. Mr. Cotton told Paul that he was selling the papers in violation of the prior submission rule, and asked him to stop. Paul continued selling the papers. At this point, Mr. Cotton determined to suspend Paul for his failure to comply with both the prior submission rule and Mr. Cotton's request that he stop selling the papers. Before Paul was sent home, Mr. Cotton notified both his parents by telephone that Paul was being suspended and told them the reasons for his decision. Mr. Cotton requested that both parents come to the school for a conference, but Mr. Kitchen replied that his job would prevent his attending a conference until six days later. A conference was agreed to be held on October 26, 1970, and it was agreed that Paul would remain on suspension until that date. As Paul was leaving Mr. Cotton's office after being informed that he was to be suspended, he slammed the door and shouted "I don't want to go to this goddamn school anyway" within the hearing of two of Mr. Cotton's female assistants.
During the period of Paul's agreed suspension between October 20 and October 26, he returned to the campus several times purportedly to talk with his teachers. Each time school officials told him to leave the campus because students were not allowed on school рremises while under suspension. On the morning of October 26, the day on which the conference with Paul's parents was scheduled, Paul was again at the entrance to the campus selling Space City! to students on their way to school. Mr. Cotton showed Paul a copy of the prior submission rule, and told him that if he did not stop selling the papers he would call the police. In response, Paul shouted "the common Anglo-Saxon vulgarism for sexual intercourse" in apparent reference to Mr. Cotton. Paul was taken to the police station but was released without charges having been filed. Mr. Kitchen obtained legal counsel and failed to appear for the scheduled conference with Mr. Cotton. Later that day, Mr. Cotton notified Paul's parents in writing that he was suspending Paul for violating the prior submission rule and using profanity in the presence of his secretary, and informed them of the suspension procedures available to students and parents under the new regulations.
On October 29, 1970, Mr. Cotton conducted a hearing at which Paul was represented by counsel. Following the hearing Mr. Cotton suspended Paul for the remainder of the semester, on the basis of Paul's violation of the prior submission rule and his use of profanity toward Mr. Cotton. A de novo appellate hearing was conducted before the assistant superintendent on November 9, 1970. Paul appeared with his father and an attorney; an extensive evidentiary hearing was held during which witnesses were cross-examined and testimony was transcribed by a court reporter. The аssistant superintendent affirmed Mr. Cotton's decision; and the transcript of the appellate hearing was reviewed by the Deputy Superintendent for Secondary Schools and the Superintendent for Instruction and Administration, who both affirmed the suspension.
On November 23, 1970, Paul and his father applied in the court below for an order holding the School District in contempt for violating the 1969 permanent injunction, and for supplementary injunctive relief and damages in aid of the injunction. On the following day the court entered an ex parte temporary restraining order directing that Paul be permitted to attend classes at Waltrip High School; without the consent of the School District, this temporary restraining order was extended for ten-day periods for a total of fifty-nine days. At the direction of the court, a four-hour hearing was held before the School Board, at which Paul and his father, represented by counsel, presented and cross-examined witnesses. The Board declined to entertain a facial challenge tо the new regulations, ordered Paul suspended for an additional two weeks beginning January 4, 1971, and directed that he be placed on probation for the remainder of the school year.
Following a hearing, the court below chastised Paul for not challenging the new regulations by orderly means, found that he had been unlawfully suspended, ordered that he be allowed credit for school work missed during the suspension, and declined to hold the School Board in contempt or award damages or attorney fees because the defendants had acted in good faith. On October 7, 1971, the court issued a supplementary injunctive decree, clarifying and elaborating the terms of its original 1969 injunction. Both sides appeal, urging a myriad of contentions regarding the trial court's refusal to vacate the 1969 permanent injunction, the reasons for suspending Paul, the procedures used in his suspension, and the failure to award damages and attorney fees. The view we take of this case makes it necessary for us to address only a few of these contentions.
* On appeal and in the court below, Paul Kitchen's position has been, basically, that his selling the newspaper was an activity protected by the First Amendment. Pointing to the fact that sale of the newspaper created little, if any, disruption of normal school activities-let alone the "material and substantial" disruption required by Tinker v. Des Moines Independent Community School District,
As the court below recognized when it rebuked Paul for failing to challenge the prior submission rule by "lawful" means, Paul's conduct can hardly be characterized as the pristine, passive acts of prоtest "akin to pure speech" involved in Tinker, supra. Rather, Paul defied Mr. Cotton's request that he stop selling the newspapers, persisted in returning to the campus during the initial six-day suspension period, and twice shouted profanity at Mr. Cotton within the hearing of others. Paul's reappearance on the campus and continued sale of the newspapers on October 26 served only to exacerbate the situation.
Moreover, Paul never once attempted to comply with the prior submission rule. Given the widespread publicity accorded the new rules, it taxes credulity to say that on October 20 Paul was unaware of the rule requiring prior submission; he most certainly knew about the rule after Mr. Cotton showed him a copy on October 26 before suspending him for a second time. Had Paul submitted the newspaper prior to distribution and had it been disapproved, then he could have promptly sought relief in the courts without having been first suspended from school. Having chosen to disregard established school pоlicy regarding distribution of off-campus literature, Paul's opportunity for obtaining relief from the principal's decision was delayed by several months of administrative appellate hearings, during which his academic career suffered severely from continued suspension.
Considering Paul's flagrant disregard of established school regulations, his open and repeated defiance of the principal's request, and his resort to profane epithet, we cannot agree that the school authorities were powerless to discipline Paul simply because his actions did not materially and substantially disrupt school activities. In the years since Tinker was decided courts have refused to accord constitutional protection to the actions of students who blatantly and deliberately flout school regulations and defy school authorities. Thus, in Schwartz v. Schuker, E.D.N.Y.1969,
It may be noted that the regulations in the instant case are the product of an extensive and good faith effort by the School District to formulate a valid code of student conduct. This court has recognized that there is nothing per se unreasonable about rеquiring a high school student to submit written material to school authorities prior to distribution. Shanley v. Northeast Independent School Dist., 5th Cir. 1972,
We hasten to point out that by thus limiting our review in this case we do not invite school boards to promulgate patently unconstitutional regulations governing student distribution of offcampus literature. Nor, needless to say, do we encourage school authorities to use otherwise valid regulations as a pretext for disregarding the rights of students. Today we merely recognize the right of school authorities to punish students for the flagrant disregard of established school regulations; we ask only that the studеnt seeking equitable relief from allegedly unconstitutional actions by school officials come into court with clean hands.
II
As to the procedures used in his suspension, the thrust of Paul's attack is that the October 29 hearing before Mr. Cotton was not the "fair and dispassionate" hearing required by due process and by the original permanent injunction. Although this court has never adopted a rule that school administrative personnel involved in the initiation and investigation of charges are per se disqualified from сonducting hearings related to those charges, see Murray v. West Baton Rouge Parish School Bd., 5th Cir. 1973,
It is, however, well settled that a procedural defect in an initial hearing before school officials can be cured by subsequent hearings. Murray, supra; Speake v. Grantham, 5th Cir. 1971,
We believe that a further word is necessary with regard to the timing of Paul's hearings, although neither party raises the issue directly. The question whether, and under what circumstances, disciplinary action must be preceded by a hearing has recently been before this court on a number of occasions. Black Students of North Fort Myers Jr.-Sr. High School v. Williams, 5th Cir. 1972,
All that remains is the question whether the court below abused its discretion in denying the School District's motion made pursuant to Rule 60(b), F.R.Civ.P., to vacate the original 1969 permanent injunction. The School District's position is that, by promulgating new regulations that literally comply with the conditions set out in the injunction, the 1969 judgment has been "satisfied," and there is no longer any need to keep the School District under threat of a contempt judgment for violating the injunction. Granting relief pursuant to Rule 60(b) is largely within the discretion of the trial court, Elgin National Watch Co. v. Barrett, 5th Cir. 1954,
With the exception of that part of the order denying the School District's motion to vacate the 1969 injunction, the supplemental injunction decree entered on July 6, 1971, and the supplementary permanent injunctive decree entered on October 7, 1971, are vacated with instructions that the suit be dismissed.
Vacated with instructions.
Notes
That regulation read as follows:
The school principal may make such rules and regulations that may be necessary in the administration of the school and in promoting its best interests. He may enforce obedience to any reasonable and lawful command.
The School District stipulated that
the rule [quoted above] is construed by responsible officials of the Houston Indepеndent School District to prohibit the type of publication and distribution engaged in by Michael Fischer and Dan Sullivan in February and March of 1969.
In a permanent injunction decree and declaratory judgment rendered on December 30, 1969, Judge Seals enjoined the School District from promulgating or enforcing any regulation dealing with the production or distribution of written materials by tenth, eleventh, and twelfth grade students, unless the regulation was in writing and students were given notice of the rule, and unless it met the following conditions:
(1) The rule must be specific as to places and times where possession and distribution of published materials is prohibited.
(2) The rule must be understandable to persons of the age and experience of covered students.
(3) The rule must not prohibit or inhibit conduct which is orderly, peaceful and reasonably quiet and which is not coercive of any other person's right to accept or reject any written material being distributed subject to the rule.
(4) The rule may prohibit such distribution at times and in places where normal classrоom activity is being conducted. Such rule may not prohibit such distribution at other times and places unless such prohibition is necessary to prevent substantial and material interference with or delay of normal classroom activity or normal school function. . . . [There follow definitions of "normal classroom activity" and "normal school function."]
(5) The rule must not subject any covered student to the threat of discipline because of the reaction or the response of any other person to the writtеn material, provided, however, that defendants and their successors in office may prohibit distribution of obscene material or of libelous material for which a cause of action may exist in some person."
In addition, the decree set out the following requirements that the District was to meet in imposing "substantial discipline" (i. e., suspension for more than three days, or for an indefinite period):
(1) The covered student and at least one of his parents or guardian shall be furnished, either in person or by mail directed to the student's last known address, with written notice of the charges and of the nature of the evidence against such covered student.
(2) The covered student and at least one of his parents or guardian shall be offered a formal hearing after sufficient time to prepare a defense or reply at which hearing evidence in support of the charge shall be presented by school officials and the affected covered student or his parent or guardian shall have ample opportunity to present any defense or reply.
(3) The decision of school officials to impose such discipline shall be based upon a dispassionate and fair consideration of substantial evidence that the covered students committed the acts for which discipline is to be imposed and that such acts are in fact a proper reason for such discipline.
Both Shanley and Eisner v. Stamford Bd. of Educ., 2nd Cir. 1971,
We note that the facts of the instant case are distinguishable from those in Pervis, supra, where no hearing was held until three months after the students' summary suspension