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THOMPSON v. WAYNESBORO AREA SCH. DIST.

November 24, 1987

Bryan Thompson, by Next Friend Larry Thompson; Marc Shunk, by Next Friend Robert Shunk; Christopher Eakle, by Next Friend Flo Eakle, Plaintiffs
v.
Waynesboro Area School District, Defendant



The opinion of the court was delivered by: RAMBO

{F. Supp. 1394contd}

 [EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published documents.]

 SYLVIA H. RAMBO United States District Judge

 ORDER

 In accordance with the accompanying memorandum, IT IS HEREBY ORDERED THAT:

 1) The court declares defendant's restrictions on plaintiff's distribution of Issues and Answers to be in violation of plaintiffs' right of free speech as guaranteed by the first amendment to the United States Constitution.

 2) Defendant is enjoined from refusing to allow plaintiffs to distribute Issues and Answers inside Antietam Junior High School.

 3) Defendant may, however, impose content-neutral time, place, and manner restrictions on plaintiffs' distribution of the paper inside the school.

 4) If it is plaintiffs' desire to petition this court for attorney fees, they shall do so within twenty (20) days of the date of this order. Plaintiffs shall support their petition with a memorandum of law.

 5) Defendant may respond to plaintiffs' petition within fifteen (15) days of the date plaintiffs serve their petition and supporting memorandum upon defendant.

 6) Plaintiffs may file a reply to defendant's response within ten (10) days of the service of defendant's response.

 7) Within twenty (20) days of the date of this order if no petition for attorney fees is filed, or upon disposition of plaintiffs' petition if one is filed, the court will direct the entry of judgment as follows:

 a) In favor of plaintiffs and against defendant on Count I of the amended complaint insofar as it alleges a violation by defendant of plaintiffs' right of freedom of speech;

 b) In favor of defendant and against plaintiffs on Count I of the amended complaint insofar as it alleges a violation by defendant of plaintiffs' right of freedom to exercise their religion;

 c) In favor of defendant and against plaintiffs on Count II of the amended complaint; and

 d) Counts III and IV of the amended complaint are deemed moot.

 {F. Supp. 1380contd}

 [EDITOR'S NOTE: The page numbers of this document may appear to be out of sequence; however, this pagination accurately reflects the pagination of the original published documents.]

 MEMORANDUM

 Before the court are motions by both plaintiffs and defendant for summary judgment. The motions have been fully briefed and are ripe for disposition.

 Background

 At the time of the events which form the basis of this action, plaintiffs Bryan Thompson, Marc Shunk, and Christopher Eakle were students at Antietam Junior High School. Antietam is a secondary, public school within the defendant Waynesboro Area School District. On the morning of April 28, 1986, Thompson and Shunk distributed copies of a newspaper entitled Issues and Answers in the hallway of Antietam Junior High School before classes began. Issues and Answers is published in Illinois by a group known as "Student Action for Christ", and the paper contains articles and cartoons which advocate religious tenets such as a personal relationship with God and an adherence to the principles of the Bible. Thompson's motivation for distributing Issues and Answers to his fellow students was ". . . to lead people to the Lord." Deposition of Bryan Thompson at 9. Shunk's motivation for distributing the paper was to communicate the "Christian viewpoint" to other students. Deposition of Marc Shunk at 8.

 One of the recipients of Issues and Answers on April 28, 1986 was a teacher at the school who subsequently gave his copy of the paper to the school principal, Robert Mesaros. Mesaros then consulted with Dr. Shelton, the school district superintendent, regarding the paper. Mesaros also had discussions regarding the paper with Bryan Thompson and Thompson's father on April 28, 1986. In his discussion with Thompson's father Mesaros expressed some reservation as to Bryan Thompson's distribution of Issues and Answers. Mesaros claimed that there was a school policy which prohibited the distribution of literature until it had been previewed. See Deposition of Larry Thompson at 10.

 On the following day Mesaros wrote a memorandum to the Thompsons outlining certain restrictions which would be imposed on further distributions of Issues and Answers. The memorandum indicated that Bryan would be permitted only to distribute Issues and Answers prior to 7:50 a.m. outside the school building, on the sidewalk and parking lot. During the school day Bryan would be required to keep extra issues of the paper in his locker. According to the memorandum, the basis for these restrictions was a policy of defendant whereby prior approval was necessary before materials could be displayed, posted, or distributed on school property and the authority of school officials to ". . . set forth the time and place of distribution so that distribution does not materially or substantially interfere with the educational process, threatens [sic] immediate harm to the welfare of the school or community, encourages [sic] unlawful activity or interferes [sic] with another individual's rights." Amended Complaint, Exhibit D. In the past defendant generally has prohibited nonstudent groups from distributing in its schools literature which is not sponsored by the schools.

 On May 8, 1986 Bryan Thompson, Marc Shunk, and Christopher Eakle again distributed Issues and Answers in a hallway of Antietam Junior High School prior to the commencement of classes. A teacher confronted the three boys and instructed them to stop distributing the papers. The three boys continued to distribute the papers and were shortly thereafter approached by Antietam's assistant principal. *fn1" The assistant principal escorted Shunk and Thompson to an office, where they were placed on in-class suspension. Later that day, Mesaros advised the boys that they would no longer be permitted to distribute Issues and Answers at any time if they continued to disregard the time and place restrictions that defendant had placed on the distribution of the paper.

 Nevertheless, Marc Shunk and Bryan Thompson again distributed Issues and Answers on May 12, 1986 in a hallway of Antietam Junior High School prior to the commencement of classes. Again they were confronted by a teacher and escorted to Mesaros' office. The boys were placed on in-school suspension for the entire school day. Mesaros wrote to the parents of both boys and informed them that the reason for the suspensions was the boys' ". . . willful disregard for school district policy and direct disobedience of [Mesaros'] directive . . . ." Amended Complaint, Exhibits E and F. Since May 12, 1986 no further distributions of Issues and Answers by plaintiffs have occurred. None of the three distributions described above resulted in any form of disturbance.

 In addition to the facts surrounding plaintiffs' distribution of Issues and Answers, other facts are relevant to the claims which plaintiffs assert in this action. For instance, students of Antietam Junior High School have the opportunity to participate in noncurriculum activities, such as student clubs, which meet in school during noninstructional time at the end of the school day. One club which students may participate is the Newspaper Club, which publishes a school newspaper entitled Round-Up. A faculty member from the English curriculum advises the Round-Up staff, which consists entirely of students. The paper is distributed to students during the homeroom period at the beginning of the school day. Included in Round-Up are articles, poems, and lists prepared by the students. The school principal supervises the content of Round-Up only for the purpose of removing or editing material which is obscene, libelous, or substantially disruptive. See Deposition of Mesaros at 45, 46. Another club available to students is the School Decorations Club, which prepares decorations to be placed in the halls and bulletin boards of Antietam Junior High School. Plaintiff's Motion for Summary Judgment, Exhibit J. A club that meets during the after-school activity hour in the high school operated by defendant is the Bible Club. Plaintiffs did not request the opportunity to form a club or to meet during the after-school activity hour.

 On June 11, 1986 plaintiffs filed a complaint in this court against the defendant school district and members of the school's board of directors. An amended complaint was filed on February 23, 1987, and the school board members were voluntarily dismissed as defendants. The amended complaint contains the following four causes of action: that in restricting plaintiffs' freedom to distribute Issues and Answers defendant violated plaintiffs' rights of free speech and the free exercise of religion as guaranteed by the first amendment to the United States Constitution, that defendant violated the Equal Access Act, 20 U.S.C. ยงยง 4071-4074, that defendant violated plaintiffs' rights to equal protection as guaranteed by the fourteenth amendment, and that defendant violated plaintiffs' ninth amendment rights as well as rights guaranteed by the Pennsylvania Constitution.

 Shortly after filing their amended complaint plaintiffs filed a motion for summary judgment. With their motion plaintiffs filed a supporting brief, an affidavit, excerpts from depositions, various exhibits, and a statement of undisputed, material facts as required by Local Rule 401.4. In response, defendant filed its own motion for summary judgment and also supported its motion with a statement of facts, a supporting brief, deposition transcripts, and other exhibits. ...


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