Legal Clips, [February 2007]A Michigan federal district has issued a preliminary injunction preventing school officials from enforcing a policy that would prohibit a student from distributing literature in the hallways between classes, finding that the officials had failed to demonstrate that such distribution would pose a risk of substantially disrupting school operations. Michael Lucas, a student at Jefferson Middle School (JMS), has engaged in several pro-life activities on campus, including the Third Annual Pro-Life Day of Silent Solidarity on Oct. 24, 2006. JMS officials prohibited Michael from distributing anti-abortion literature during the school day. Michael handed out several leaflets before his English teacher sent him to Principal Stephen Kinsland’s office. The principal informed Michael that he could not engage in activities related to his pro-life beliefs because they were not "age-appropriate" and were "disruptive." Michael was told he could no longer distribute materials because he had not obtained "prior approval." After Michael sued, the parties entered into a stipulated agreement to allow him to engage in certain activities in connection with a pro-life event planned for Jan. 31, 2007. The agreement allows him to distribute literature during the lunch hour at a table and post flyers in the hallways and on student bulletin boards. However, the parties were unable to reach an agreement allowing Michael to distribute materials in the hallways. Michael argued that while the school can place reasonable restrictions on the time, place, and manner of distribution of non-school sponsored literature, the distribution policy’s restrictions are inappropriate because the defendants have failed to demonstrate the likelihood that the distribution will result in a material disruption, as Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), requires. He also contended that the restrictions were vague, overbroad, and unreasonable. The defendants insisted the policy’s content-neutral time, place, and manner restrictions are reasonable.
Michael sought a preliminary injunction that would allow hallway distribution until the district court decides the merits of First Amendment free speech claim. The court stated in order issue a preliminary injunction it must determine: (1) the likelihood that the plaintiff would succeed on the merits; (2) the likelihood of irreparable harm to the plaintiff if the injunction were denied; (3) the likelihood of harm to the defendant if it were granted; and (4) the public interest. Addressing the likelihood of success on the merits factor first, the court pointed out that in order for the policy to pass constitutional muster under Tinker, it must not be overbroad. The policy failed this test, the court found, because it "suppresses more speech than necessary for JMS to satisfy its societal interest in teaching, and its obligation to balance that interest against fundamental First Amendment rights of students which the State must respect." The court rejected the defendants’ argument that Tinker was not applicable because the school is a nonpublic forum where speech can be regulated as to time, place, and manner. While the court agreed that JMS is nonpublic forum subject to content-neutral time, place, and manner restrictions that are reasonable and viewpoint neutral, it still found that Michael was engaged in student speech governed by Tinker. Applying that standard, the district court found there was no evidence that a material and substantial disruption occurred or was likely to occur. The defendants’ concern that Michael’s leafleting might cause litter in the hallways was little more that the kind of "undifferentiated fear or apprehension of disturbance" that the U.S. Supreme Court warned against in Tinker when determining if the potential for disruption warranted restricting students’ free speech rights. Michael’s leafleting was "unintrusive and unlikely to cause a material and substantial disruption."
The district court also found unpersuasive the defendants’ argument that under forum analysis the proper test is whether the time, place, and manner restrictions are content-neutral. Even if forum analysis were the proper test of speech issues, the distribution policy would still fail constitutionally, the court reasoned, because "its restriction on possession and distribution of ‘literature’ is unreasonable and overbroad." The court then disposed of the other preliminary injunction factors briefly, finding that they too weighed in Michael’s favor.
M.A.L. v. Kinsland, No. 07-10391 (E.D. Mich. Jan. 30, 2007)
[Full opinion]
[Editor’s Note: If reading this case gives you a sense of déjà vu, the trial lawyers in both this case and Raker v. Frederick County Public Schools, summarized below, are with the Alliance Defense Fund, a group notable for its impact litigation tactics. For more about ADF, see the information on its involvement in Williams v. Vidmar, in which a teacher accused his school district of "banning the Declaration of Independence."]
[NSBA School Law pages on Raker v. Frederick County Public Schools]
[NSBA School Law pages on Williams v. Vidmar]