Gilio v. School Board of Hillsborough County

Citations: 905 F. Supp. 2d 1262; 2012 WL 5289623; 2012 U.S. Dist. LEXIS 153622Docket: Case No. 8:12-CV-955-T-27EAJ

Court: District Court, M.D. Florida; October 25, 2012; Federal District Court

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The Court, led by District Judge James D. Whittemore, addresses the Magistrate Judge's Report and Recommendation (Dkt. 41) regarding Plaintiff Kimberly Gilio's motion for a preliminary injunction (Dkt. 9). The recommendation suggests that the motion be partially granted and partially denied, with no objections from either party. The Court finds that the Plaintiff has shown a substantial likelihood of success on her claim that the School Board's policies unconstitutionally restricted J.G.'s speech, referencing Tinker v. Des Moines Independent Community School District. The Court concurs that there is insufficient evidence to demonstrate that distributing Easter egg hunt invitations during non-instructional time would disrupt schoolwork or discipline. Consequently, the enforcement of Board Policies 9700 and 5722 against J.G.'s invitations constitutes unconstitutional viewpoint discrimination, targeting religious messages.

The Court adopts the Report and Recommendation in full, issuing the following orders: 
1) The Hillsborough County School Board is prohibited from enforcing Policy 9700’s ban on proselytizing speech and related provisions of Policy 5722 against J.G.'s distribution of religious invitations unless necessary to prevent significant disruption.
2) The request to waive the bond requirement under Fed. R. Civ. P. 65(c) is granted.
3) The request for an immediate order allowing J.G. to distribute religious invitations during non-instructional time is denied.

The case initiated on May 1, 2012, involves allegations of constitutional violations and Florida’s Religious Freedom Restoration Act, focusing on balancing an elementary student's First Amendment rights with the School Board's educational interests.

Plaintiff has demonstrated a strong likelihood of success on some claims and fulfilled other criteria for preliminary injunctive relief, leading to a recommendation for partial approval of the motion for a preliminary injunction. Key findings include: 

1. J.G., a fourth-grade student at Roland H. Lewis Elementary School in Temple Terrace, Florida, was involved in the incident prompting this lawsuit.
2. The School Board of Hillsborough County has policies regulating outside literature distribution (Board Policy 9700) and school-sponsored publications (Board Policy 5722).
3. Students may distribute birthday invitations in class if appropriate for school and provided to every classmate.
4. In March 2012, Plaintiff organized an Easter egg hunt and created invitations that included details about the event and her contact information.
5. On March 26, 2012, J.G. brought twenty invitations to school to distribute during non-instructional time, giving one to a friend without causing disturbance.
6. J.G. sought permission from a substitute teacher to distribute the remaining invitations, which were submitted to the Principal for review.
7. The Principal prohibited distribution, citing Board Policy 9700 due to the invitations' religious content and age appropriateness, as stated in her affidavit.
8. J.G. faced no disciplinary action for initially distributing one invitation and did not attempt further distribution after the Principal's decision.
9. Now in fifth grade, J.G. wishes to share information about church events with classmates through flyers.

To obtain a preliminary injunction, a plaintiff must prove likelihood of success on the merits, irreparable harm, favorable balance of equities, and that the injunction serves the public interest, as established in Complete Angler, LLC v. Clearwater and Winter v. NRDC, Inc. Preliminary injunctions are granted only when all criteria are convincingly met.

Failure to establish any of the four required factors for a preliminary injunction is detrimental to the Plaintiff's case. The Plaintiff argues that Board Policies 9700 and 5722 violate constitutional rights by (1) infringing on student speech per Tinker v. Des Moines and (2) discriminating based on content and viewpoint. A key disagreement exists regarding the nature of J.G.’s invitations, with the Plaintiff claiming they are personal speech subject to Tinker’s stricter standards, while the School Board argues they fall under the more permissive Hazelwood standard for school-sponsored speech or a nonpublic forum analysis.

Tinker involved students who protested the Vietnam War by wearing black armbands and were suspended for doing so, leading to a Supreme Court ruling that affirmed students retain their First Amendment rights at school, provided their speech does not cause substantial disruption. Hazelwood involved a principal's decision to censor articles in a school newspaper, which the Court upheld, stating that educators can exercise editorial control over school-sponsored speech as long as their actions are reasonably related to legitimate educational concerns. The distinction between Tinker and Hazelwood lies in whether the speech is individual expression or part of a school-sponsored activity, with the Court emphasizing different standards for each context.

The Court determined that the principal's refusal to publish articles in Hazelwood was justified by concerns over student privacy and the appropriateness of the content. In contrast, the Plaintiff argues that J.G.'s invitations represent personal religious speech, fully protected under the Free Speech Clause, similar to secular expressions. The Plaintiff cites several district court cases applying the Tinker standard, including Johnston-Loehner v. O’Brien, where a school’s prohibition against a student distributing church party invitations was deemed a violation of First Amendment rights. Additional cases from Pennsylvania, Arkansas, and Michigan similarly found that preventing distribution of religious event invitations infringed upon student rights under Tinker.

The School Board, advocating for the Hazelwood standard, claims J.G.'s invitations fall under Board Policy 9700 as literature from an outside organization and argue that such materials become school-sponsored when reviewed and approved for distribution. They maintain that regulating J.G.'s speech serves educational purposes and protects students from unsolicited religious messages. However, the Plaintiff contends that J.G.'s invitations do not constitute school-sponsored speech, as they are unrelated to any curricular activity. The Supreme Court in Hazelwood defined school-sponsored speech as requiring both school endorsement and association with curricular activities, which are faculty-supervised and designed to impart specific knowledge or skills.

The Eleventh Circuit's ruling on student-painted murals, which were tied to a curricular beautification project, illustrates the distinction between school-sponsored and private expression. While J.G.'s invitation distribution might appear to carry the school's endorsement to some, it does not meet the criteria of a curricular activity, as inviting classmates to an off-site event about Easter does not align with the educational mandate. Thus, it is argued that the invitations should be classified as private speech.

J.G.’s Easter egg hunt speech, organized by his mother and church, retains its personal character despite the involvement of external entities. The School Board acknowledged that J.G. could claim the church's speech as his own. The Tinker standard applies to personal student speech, particularly in noncurricular activities. The School Board proposed a forum analysis, arguing that J.G.'s school is a nonpublic forum where speech can be restricted if regulations are reasonable and viewpoint neutral. However, schools are typically considered nonpublic forums only if they intentionally allow public access. The Board's rationale for restricting J.G.’s speech, citing the vulnerability of young students to proselytizing, is unconvincing since the forum analysis is generally relevant for external groups, not students who have a right to be on school property. Previous cases support that students retain First Amendment protections while at school. The School Board's additional claims—that elementary officials have more discretion to limit speech and that J.G.’s invitations would infringe on others' rights to avoid religious messages—are also unpersuasive. Though the legal landscape regarding the speech rights of elementary students is not definitively established, there is sufficient authority indicating that the Tinker standard applies to J.G.'s situation. Furthermore, the Board's assumption that students can be shielded from religious messages fails to acknowledge that First Amendment rights extend to private speech endorsing religion within the school context.

Applying the Tinker standard, the Plaintiff has established a likelihood that the School Board's actions infringed on J.G.'s First Amendment rights since there is no evidence that allowing J.G. to distribute invitations would significantly disrupt school operations. J.G. successfully distributed one invitation without issues, and the School Board conceded during oral arguments that it could not defend its actions under the Tinker standard. While the Principal's motives are deemed irrelevant and she appeared to be adhering to School Board policies, J.G.’s speech can only be restricted if it poses a material and substantial adverse effect on schoolwork or discipline, which the evidence does not support. 

The Plaintiff also challenges Board Policies 9700 and 5722 as being applied in a manner that constitutes content-based and viewpoint-based discrimination. The School Board claims these policies are viewpoint neutral and reasonable for the school environment. Policy 9700 prohibits distributing materials from religious groups with proselytizing messages, while Policy 5722 dictates that materials should not promote one religious viewpoint over others. Content-based discrimination occurs when speech on a general topic is restricted, and viewpoint discrimination is generally unconstitutional. The Plaintiff argues that the policies discriminate against religious viewpoints, as secular groups may promote their messages without restriction, though there is no evidence of non-religious groups engaging in similar proselytizing at J.G.'s school. The policies appear to specifically target religious speech, suggesting viewpoint discrimination, similar to the findings in Rosenberger v. Rector, where a policy was deemed to permit viewpoint discrimination by restricting religious perspectives. Thus, the application of these policies to J.G.'s invitations is likely unconstitutional due to their targeting of religious proselytizing messages.

Board Policy 9700 is explicitly limited to religious institutions and defines "proselytizing messages" in relation to religious speech, rather than a broader interpretation that includes recruitment for any group. Similarly, Board Policy 5722 addresses religious speech that promotes a specific denomination. The School Board claims these policies are viewpoint neutral since they apply to all religions; however, this assertion is unconvincing, as it does not address potential viewpoint discrimination. The Plaintiff has demonstrated a likelihood of success in claiming that the application of these policies to J.G. constitutes unconstitutional viewpoint-based discrimination, making facial challenges unnecessary at this stage.

Regarding irreparable harm, the Plaintiff argues that any infringement on First Amendment rights constitutes injury. The School Board contends J.G. could distribute invitations independently, but the Principal's note did not suggest this option. Given that Board Policy 9700 governs distribution on District property, the School Board's claim that J.G.’s rights were not impeded is inconsistent. Thus, the Plaintiff has shown irreparable harm.

In balancing equities, the Plaintiff asserts that the harm to J.G. outweighs any potential harm to the School Board, which has no legitimate interest in enforcing an unconstitutional regulation. The School Board's concern about an influx of proselytizing materials is deemed speculative. The Plaintiff has satisfied the remaining elements of the preliminary injunction test, leading the Court to warrant injunctive relief, with the final determination revolving around the scope of that relief.

The School Board should be prohibited from enforcing Board Policy 9700's ban on proselytizing messages as it applies to J.G.'s religious-themed invitations, unless such enforcement would materially and substantially interfere with schoolwork or discipline. Additionally, Board Policy 5722, which restricts materials that promote the supremacy of any religious viewpoint, should also be enjoined in relation to J.G.'s invitations unless a similar interference is found. The recommended preliminary injunction is narrowly focused, aiming to allow J.G.'s distribution of invitations while maintaining the School Board's obligation to prevent significant disruptions under the Tinker standard. This standard does not necessitate proof of actual disruption but allows for preemptive action based on reasonable forecasts of substantial interference. However, an immediate order for J.G. to distribute his invitations is deemed unnecessary, as he is not entitled to special treatment. The School Board's educational responsibilities must align with constitutional standards. Consequently, the recommendation is to grant the motion for preliminary injunction in part, enjoining the School Board from certain restrictions while denying immediate distribution permissions and granting a waiver of the bond requirement due to the constitutional rights at stake. The invitations are classified as personal speech, not school-sponsored, and thus fall under the Tinker standard. Neither party presented evidence during the hearing, relying on previously filed submissions.

The complaint presents six legal claims: (1) infringement of the Free Speech Clause of the First Amendment; (2) infringement of the Free Exercise Clause of the First Amendment; (3) infringement of the Due Process Clause of the Fourteenth Amendment; (4) infringement of the Establishment Clause of the First Amendment; (5) infringement of the Equal Protection Clause of the Fourteenth Amendment; and (6) infringement of Florida’s Religious Restoration Act of 1998. 

Board Policy 9700 restricts outside organizations, staff, or students from distributing or posting literature on school property without Superintendent approval. Notably, materials from religious organizations cannot promote specific religious benefits. Board Policy 5722 allows the Board to prohibit publications deemed inappropriate, particularly those asserting the superiority of any one religious viewpoint over others.

The factual basis for findings 4, 12, 13, and 14 derives from the Principal's affidavit, while findings 15 and 16 were submitted by the School Board in opposition to the Plaintiff's motion and are not disputed. The Supreme Court, in Tinker, characterized student speech as "individual expression of personal conscience." The Eleventh Circuit classified personal student expression as occurring on school premises and described school-sponsored speech as an intermediate category. Case law cited includes decisions that support enjoining policies that restrict student distribution of materials, affirming that prohibiting students from sharing invitations to events does not pose a significant interference with school operations, thus violating the Tinker standard.

In Curry v. Hensiner, the court upheld the prohibition of a student's sale of candy canes with religious cards as part of a classroom assignment. Similarly, Walz v. Egg Harbor Township Bd. of Educ. found that an elementary school could bar a student from distributing religiously themed pencils during an instructional holiday party. The regulation of speech in public forums is subject to strict scrutiny, requiring narrow tailoring to serve a compelling government interest, as established in Pleasant Grove City v. Summum. In designated public forums, restrictions must also meet this strict scrutiny standard, while limited public forums allow for reasonable and viewpoint-neutral regulations. However, the School Board's policies were criticized for allowing viewpoint discrimination.

Citing Chad Allred, it was argued that a forum analysis is inappropriate for student expression regulation. In Morgan v. Swanson, the Fifth Circuit emphasized that First Amendment rights of students should not be limited based on age, although Walker-Serrano acknowledged that elementary school officials might regulate more speech than those in higher grades. In Muller, the court did not support the district's prohibition against a student distributing Bible study invitations, granting an injunction against such religious discrimination. Although the Seventh Circuit upheld the school’s policies regarding external material distribution, some judges expressed differing views on the applicability of Tinker to younger students. The evidence indicated that the School Board's regulation of J.G.'s speech was due to its religious content, irrespective of its impact on peers, paralleling findings in Heinkel v. Sch. Bd. of Lee Cnty.

The court applied the Tinker standard to uphold the school board's decision to deny a student's request to distribute "pro-life literature" at a middle school, determining that the materials could likely cause substantial disruption or interference with school activities. It noted that viewpoint discrimination may be permissible in certain circumstances, allowing schools to promote discussions about drug use while prohibiting speech advocating for drug use. The term "proselytize" is defined as converting individuals to a belief or recruiting for a group, suggesting that proselytizing speech is treated differently in public schools, although this area of law remains unsettled. A distinction was made between distributing religiously themed literature and secular literature, indicating that refusal to distribute proselytizing literature could be justified. The document also addressed judicial practices regarding overbreadth, stating that statutes typically should not be invalidated on a broader basis unless necessary. It concluded that there is no reason to enjoin the school board's application of its policies to the student in question, affirming the board's authority to reject materials deemed prejudicial or libelous.