First Amendment protects students' right to distribute non-student-produced publications, Washington court rules


Ruling walks back part of earlier opinion taking narrow view of Tinker standard





WASHINGTON — Students at a Washington state high school will be allowed to hand out non-student-produced materials, after a federal judge ruled that banning distribution of non-original literature is unconstitutional.

The judge's May 29 ruling does allow reasonable restrictions on the time and place materials can be distributed.

Michael Leal, a senior at Cascade High School, filed a lawsuit in November 2014 against Everett Public Schools after being asked to stop handing out religious material on campus by school administrators.

In his original complaint, Leal alleged that when preaching about his Christian faith and handing out written materials in early September 2014 during lunch, Cascade Principal Cathy Woods and Vice Principal Laura Phillips pulled him aside after the break and told him he “would get in trouble” if he continued to distribute materials.

After additional similar incidents, Leal was given a notice of disciplinary action and suspended from school for two days in early October due to what the school described as “boisterous conduct of religious material [that] impinged on rights of other students and failure to comply to multiple administrative requests to stop activity.”

Leal was suspended once again a week later after handing out material at an after-school volleyball game for not complying with the guidelines the school laid out. After exchanging legal correspondence with the school district, in which Leal’s attorneys asked for his record to be cleared in regards to preaching and permission to preach during non-instructional time, a dispute over school policies emerged.

School policies in effect at the time gave the principal authority to “monitor student verbal expression,” and to permit the on-campus distribution of only student-produced materials, at school entrances before and after school.

Leal’s request for a preliminary injunction, which asked to restrain school administrators from interfering with Leal’s preaching and distribution of religious material during non-instructional time, was denied by U.S. District Judge Thomas Zilly in February, a precursor to the more recent ruling.

The judge wrote in the February opinion that he did not view the Supreme Court’s Tinker v. Des Moines Independent Community School District precedent as applying to a “viewpoint-neutral” regulation on speech, noting that the distribution rule applied to publications regardless of viewpoint.

“The Supreme Court has never held that Tinker is the appropriate analytical framework for the consideration of viewpoint-neutral regulations,” Zilly wrote. “While Tinker is appropriately applied to those restrictions aimed at suppressing student expression or a particular viewpoint, a lower standard is demanded where this is not the case.”

While Zilly did not grant the preliminary injunction in February, he did express concerns about the limits on non-original materials. The judge wrote that he was “troubled by the fact that the School District’s policy would prohibit students from passing out materials such as the Constitution,” but concluded that a preference for student-generated literature “may serve an important educational goal and be upheld under the First Amendment.”

After the February ruling, Zilly received additional briefing that resulted in a final ruling walking back part of the initial ruling, according to Kevin Snider, Leal’s attorney. Zilly found board policies to be unconstitutional in part, saying students do not need to write original material to pass it out on campus.

“The judge was very troubled by the original authorship rule, so it wasn’t a complete shock that he reversed himself on that,” Snider said. “The implications would be that you ironically couldn’t pass out the First Amendment because you didn’t write it yourself. So I think that’s the reason he changed courses on that.”

The school district expressed satisfaction with the ruling, saying that the only change between the preliminary injunction ruling and the ruling from the bench was that students can pass out material that they did not write or produce.

“Judge Zilly’s ruling on the parties’ cross-motions for summary judgment were consistent with his ruling on the preliminary injunction request,” Sarah Heineman, an attorney for Everett Public Schools, said. “In both decisions, he upheld the bulk of the district’s policy – what are legally known as the ‘time, place, and manner’ restrictions on the distribution of materials.”

The ruling also vacates the discipline on Leal's record for disobeying the ban on non-student-produced literature.

Snider believes that the ruling did not go far enough to protect the First Amendment.

“We believe that this was one of the most restrictive policies in the country,” Snider said. “We think that the interior of campuses should be open. Not in the classroom during instruction time, but outside of the classroom during lunch or breaks. That should be essentially free time that students should be able to exercise speech activities.”

Leal will graduate from Cascade High School on June 13, according to Snider. 

“Each side has a right to appeal the decision within 30 days,” Heineman said. “At this time, the District is carefully reviewing and considering all of its options.”


Cascade High School, Everett Public Schools, First Amendment, First Amendment, first-amendment, Michael Leal, news, recent-news, Tinker Standard

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