1Roger L. Wollman became Chief Judge of the United States Court of Appeals

for the Eighth Circuit on April 24, 1999.

2The Honorable Charles R. Wolle, United States District Judge for the Southern

District of Iowa, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-3439

___________

Adam Henerey, by and through his *

parent and next friend Michael Henerey, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

City of St. Charles, School District; *

Jerry Cook, principal, individually and *

in his official capacity; David Watson, *

assistant principal, individually and in *

his official capacity, *

*

Appellees. *

___________

Submitted: April 21, 1999

Filed: December 29, 1999

___________

Before RICHARD S. ARNOLD and WOLLMAN,1 Circuit Judges, and

WOLLE,2 District Judge.

___________
3The Honorable Charles A. Shaw, United States District Judge for the Eastern

District of Missouri.

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WOLLMAN, Chief Judge.

Adam Henerey appeals from the district court’s3 grant of summary judgment in

favor of the City of St. Charles School District (District) in this 42 U.S.C. § 1983

action based on a claimed violation of the First Amendment. We affirm.

I.

In March 1997, Henerey, then a sophomore at St. Charles High School, applied

to run for junior class president in an upcoming student council election. Although

candidacy was open to all members of the sophomore class, those seeking to run were

required to meet with Mary Stodden, the student council advisor, and to sign a contract

of obligation. Under the terms of the contract, candidates agreed to obey all school

rules. After Henerey signed the contract, a member of the student council advised him

that all campaign flyers and posters had to be approved by the administration prior to

distribution.

The campaign officially began on April 7, 1997. Henerey obtained approval

from the administration for his campaign slogan, “Adam Henerey, The Safe Choice.”

On the evening of April 7, Henerey was informed by Stodden that other candidates had

complained that his posters had been posted over theirs and that references to other

candidates were demeaning. Stodden then told Henerey that all materials needed to be

approved by the administration.

On the morning of April 10, 1997, the day of the election, Henerey handed out

in the school hallways some eleven condoms attached to stickers bearing his campaign
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slogan. He had given the administration no prior indication that he planned to distribute

condoms or that his campaign would in any way involve sex-related topics.

As Ms. Stodden was counting the ballots, a student complained to her about

Henerey’s distribution of condoms. Ms. Stodden in turn relayed the complaint to Dr.

Jerry Cook, the school principal, who determined that Henerey should be disqualified

from the student election for his failure to comply with School Board Rule KJ-R, which

required students to get prior approval from the school principal or assistant principal

before distributing any materials. A subsequent count of the votes revealed that

Henerey had received a majority of the votes for junior class president.

Henerey then filed this action, alleging that the District violated 42 U.S.C. §

1983 by suppressing his First Amendment right to free speech. The district court found

that although a material dispute existed whether Henerey’s conduct constituted

constitutionally protected speech, the rule restricting the types of electioneering

materials that could be distributed was constitutional. The court concluded that the

student election was a school-sponsored activity that took place in a nonpublic forum

and that Dr. Cook’s decision to disqualify Henerey for his failure to comply with Rule

KJ-R was reasonably related to the school’s legitimate pedagogical goals.

Accordingly, it granted the District’s motion for summary judgment. 

II.

We review a grant of summary judgment de novo. See Hossaini v. Western

Missouri Med. Ctr., 140 F.3d 1140, 1142 (8th Cir. 1998). Summary judgment should

be granted if the evidence, viewed in the light most favorable to the nonmoving party,

indicates that no genuine issue of material fact exists and that the moving party is

entitled to judgment as a matter of law. See id.; Fed. R. Civ. P. 56(c).
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Although students do not “shed their constitutional rights to freedom of speech

or expression at the schoolhouse gate,” Tinker v. Des Moines Indep. Community Sch.

Dist., 393 U.S. 503, 506 (1969), the Constitution does not compel “teachers, parents,

and elected school officials to surrender control of the American public school system

to public school students.” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686

(1986) (quoting Tinker, 393 U.S. at 526 (Black, J., dissenting)). The constitutional

rights of public school students “are not automatically coextensive with the rights of

adults in other settings,” Fraser, 478 U.S. at 682, and a school need not tolerate speech

that is inconsistent with its pedagogical mission, even though the government could not

suppress that speech outside of the schoolhouse. See Hazelwood Sch. Dist. v.

Kuhlmeier, 484 U.S. 260, 266 (1988) (citing Fraser, 478 U.S. at 685); Poling v.

Murphy, 872 F.2d 757, 762 (6th Cir. 1989) (“Limitations on speech that would be

unconstitutional outside the schoolhouse are not necessarily unconstitutional within

it.”). Therefore, courts must analyze First Amendment violations alleged by students

“in light of the special characteristics of the school environment.” Hazelwood, 484

U.S. at 266 (quoting Tinker, 393 U.S. at 506).

Purely individual speech by students constituting “personal expression that

happens to occur on the school premises” is subject to a high degree of First

Amendment protection. Hazelwood, 484 U.S. at 271. However, school officials may

restrict even individual student expression that “materially and substantially interfere[s]

with the requirements of appropriate discipline in the operation of the school,” or that

“would substantially interfere with the work of the school or impinge upon the rights

of other students.” Tinker, 393 U.S. at 509 (citations and internal quotation marks

omitted).

When the expressive conduct at issue occurs in the context of a schoolsponsored activity that is not also a public forum, the authority of schools to exercise

control over the content of speech is at its greatest. See, e.g., Hazelwood, 484 U.S. at

276 (school may censor official student newspaper); Fraser, 478 U.S. at 678 (school
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may ban sexually suggestive language in speech before high school assembly); Lacks

v. Ferguson Reorg. Sch. Dist. R-2, 147 F.3d 718, 724 (8th Cir. 1998) (school may ban

profanity in creative writing class), cert. denied, 119 S.Ct. 1158 (Mar. 8, 1999); Poling,

872 F.2d at 764 (school may ban insulting references in student council election

speech). In the absence of a public forum, school officials may limit a student’s speech

in a school-sponsored activity if the limitation is “reasonably related to legitimate

pedagogical concerns.” Hazelwood, 484 U.S. at 273.

A.

1.

Henerey argues that the campaign for class president must be considered a forum

for public expression. The nature of the forum affects the degree of protection the First

Amendment affords to expressive activity, even within the public school setting. See,

e.g., Hazelwood, 484 U.S. at 267 (conducting forum analysis as first step in addressing

student speech claim); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.

37, 44 (1983) (“The existence of a right of access to public property and the standard

by which limitations upon such a right must be evaluated differ depending on the

character of the property at issue.”); Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530,

1540 (7th Cir. 1996) (prior restraint of student speech not unconstitutional in nonpublic

forum).

Although school facilities are traditionally deemed nonpublic fora, they may be

designated public when school authorities have a policy or practice of opening them for

indiscriminate use by the general public, or by some segment of the public such as

student organizations. See Good News/Good Sports Club v. School Dist. of the City

of Ladue, 28 F.3d 1501, 1513 (8th Cir. 1994) (citing Hazelwood, 484 U.S. at 267).

“The government does not create a public forum by inaction or by permitting limited

discourse, but only by intentionally opening a nontraditional forum for public
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discourse.” Hazelwood, 484 U.S. at 267 (quoting Cornelius v. NAACP Legal Defense

and Educ. Fund, Inc., 473 U.S. 788, 802 (1985)).

Here, the District did not open the campaign to the public, and it obviously

intended to control the speech associated with the student election. Only enrolled

students were eligible for candidacy in the election, and those who sought an elected

position were required to sign an agreement stating that they would obey school rules.

In addition, all campaign materials had to be approved prior to their distribution or use.

Thus, because there is no evidence that the school intended by “policy or practice” to

relinquish its control over the election and designate it a forum for public expression,

see Good News, 28 F.3d at 1513, we conclude that the election was conducted within

the context of a nonpublic forum.

2.

The next question is whether Henerey’s expression was school-sponsored speech

or independent student speech. See Hazelwood, 484 U.S. at 270-71. A school may

exercise greater control over student speech uttered during participation in a schoolsponsored activity than that expressed during an independent activity because

“students, parents, and members of the public might reasonably perceive [the schoolsponsored speech] to bear the imprimatur of the school.” Id. at 271. Such control also

“assure[s] that participants learn whatever lessons the activity is designed to teach, that

readers or listeners are not exposed to material that may be inappropriate for their level

of maturity, and that the views of the individual speaker are not erroneously attributed

to the school.” Id. Although to be considered “school-sponsored,” expressive

activities must be “curricular” in a broad sense, they need not “occur in a traditional

classroom setting, so long as they are supervised by faculty members and designed to

impart particular knowledge or skills to student participants and audiences.” Id.

(footnote omitted).
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The election was supervised by a school administrator serving as the student

council advisor, and it ran for a limited time period set by the school. It was operated

under the auspices of the school administration, and any member of the public could

reasonably have concluded that campaign materials were distributed with the implied

approval of the school. Moreover, the election was conducted for the pedagogical

purposes of allowing candidates to learn leadership skills and exposing the general

student body to the democratic process. Accordingly, we agree with the district court

that the election was a school-sponsored activity that was a part of the school’s

curriculum. See Poling, 872 F.2d at 762 (there can be “no doubt” that a student

election is a school-sponsored activity for First Amendment purposes). In this setting,

the question becomes whether the District’s decision to disqualify Henerey from the

election was reasonably related to legitimate pedagogical concerns. See Hazelwood,

484 U.S. at 273.

B.

1.

We turn first to the District’s contention that the sole basis for its decision to

disqualify Henerey was his violation of school rules. The relevant portions of Rule KJR read as follows:

ADVERTISING IN THE SCHOOLS (Board Policy KJ-R)

1. Places

The distribution of such items may take place in a location approved

by principal of the school.

. . . .

3. Approval

The approval must be obtained the previous day or earlier from the

principal or assistant principal. (For materials not readily classifiable

or approvable more than one school day should be allowed.) The
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approved articles will bear the official stamp of the school, “Approved

for Distribution or Posting”

. . . .

5. Unacceptable Items

Hate literature which attacks ethnic, religious or racial groups, other

irresponsible publications aimed at encouraging hostility and violence;

pornography, obscenity and materials unsuitable for distribution in the

schools is unacceptable as well as:

a. Materials judged libelous to specific individuals in or out of school

b. Materials designed for commercial purposes - to advertise or

promote a product or service for sale or rent.

c. Materials which are designed to solicit funds unless approved by

the superintendent or his assistant

d. Materials the principal is convinced would materially disrupt class

work or involve substantial disorder or invasion of the rights of

others

6. Acceptable Materials

All materials not proscribed in “Unacceptable items”.

The District’s position is that it disciplined Henerey simply because he had failed

to comply with Rule KJ-R. The District contends that it acted reasonably because it

has a legitimate interest in disciplining students who do not obey school rules, noting

that despite repeated warnings, Henerey failed to obtain prior approval for his

campaign materials.

Henerey argues that because other students distributed materials, such as candy

and gum, without prior approval and were not disciplined, the District’s decision to

disqualify him from the election was based on the content of his message. The District

responds by pointing out that handing out candy on election day has been a longstanding practice at the school, one that has been tacitly approved by the

administration. We find nothing in the record to challenge the District’s representation
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on this point, and thus we conclude that Henerey has provided no evidence of selective,

content-based enforcement of Rule KJ-R.

2.

Henerey argues that Rule KJ-R is unconstitutional on its face as a prior restraint

on speech and as unconstitutionally vague. Generally, prior restraints are subject to the

highest degree of scrutiny and are the form of regulation most difficult to sustain under

the First Amendment. See Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-20

(1931). However, the prior restraint of speech within secondary schools is not per se

unconstitutional. See Hazelwood, 484 U.S. at 273 n.6; Bystrom v. Fridley High Sch.,

Indep. Sch. Dist. No. 14, 822 F.2d 747, 750 (8th Cir. 1987).

As to vagueness, Henerey argues that Rule KJ-R effectively gives the principal

unfettered discretion to determine what materials are unacceptable. As we noted in

Bystrom, however, “a high degree of generality is made necessary by the subject

matter. The concepts involved (indecency, vulgarity, likelihood of material disruption)

are general by their very nature.” 822 F.2d at 750. The rule furthers several legitimate

interests of public schools identified in Bystrom, including the interest in assuring that

“school hours and school property are devoted primarily to education as embodied in

the district’s prescribed curriculum,” and the interest in “preserv[ing] some trace of

calm on school property.” 822 F.2d at 750. More generally, Rule KJ-R appears to be

“one expression of the ‘legitimate and substantial community interest in promoting

respect for authority and traditional values be they social, moral, or political.’” Id. at

750-51 (quoting Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico,

457 U.S. 853, 864 (1982) (opinion of Brennan, J., joined by Marshall and Stevens, JJ.,

announcing the judgment of the Court)); cf. Bull v. Dardanelle Pub. Sch. Dist. No. 15,

745 F.Supp. 1455, 1457 (E.D. Ark. 1990) (upholding policy preventing students from

running for council based on “lack of cooperation, rude conduct in class, excessive
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absences or tardies, lack of responsibility, or inappropriate behavior in or out of

school”). Moreover, the rule allows the principal a reasonable time period--twenty-four

hours--to evaluate materials. See, e.g., Muller, 98 F.3d at 1534, 1541 (upholding

similar twenty-four-hour prescreening requirement in public school setting as a

reasonable prior restraint). Accordingly, we do not find the rule unconstitutional on its

face, and we agree with the district court that Dr. Cook’s decision to disqualify

Henerey for his failure to comply with the rule represented a reasonable response to

that noncompliance. See Poling, 872 F.2d at 763-64.

C.

Even assuming, for the purpose of argument, that Henerey’s action in handing

out the condoms constituted the expression of constitutionally protected speech and that

Dr. Cook’s action in disqualifying Henerey was motivated by a disagreement with the

content of that speech, it does not follow that a First Amendment violation necessarily

occurred. As the Sixth Circuit observed in a case involving a student council election,

“[t]he universe of legitimate pedagogical concerns is by no means confined to the

academic.” Poling, 872 F.2d at 762. Thus, for example, “schools must teach by

example the shared values of a civilized social order.” Fraser, 478 U.S. at 683 (quoted

in Poling, 872 F.2d at 762). These shared values include “discipline, courtesy, and

respect for authority.” Poling, 872 F.2d at 762. In addition,

a school must be able to take into account the emotional maturity of the

intended audience in determining whether to disseminate student speech

on potentially sensitive topics, which might range from the existence of

Santa Claus in an elementary school setting to the particulars of teenage

sexual activity in a high school setting. A school must also retain the

authority to refuse to sponsor student speech that might reasonably be

perceived to advocate drug or alcohol use, irresponsible sex, or conduct

otherwise inconsistent with “the shared values of a civilized social order,”
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or to associate the school with any position other than neutrality on

matters of political controversy.

Hazelwood, 484 U.S. at 272 (quoting Fraser) (citations omitted). As the Sixth Circuit

put it, “[c]ivility is a legitimate pedagogical concern.” Poling, 872 F.2d at 758. So,

too, is compliance with school rules. See Bull, 745 F.Supp. at 1459.

The distribution of condoms is qualitatively different from the handing out of

candy or gum. The one can be read to signify approval or encouragement of teenage

sexual activity. The other constitutes the traditional bestowing of a de minimis gratuity

not associated with any social or political message. School districts have an interest

in maintaining decorum and in preventing the creation of an environment in which

learning might be impeded, an interest that was particularly strong in the present case

because the condom distribution occurred within the context of a school-sponsored

election. Henerey’s distribution of the condoms carried with it the implied imprimatur

of the school, see Hazelwood, 484 U.S. at 271, for the other students would most likely

have assumed that Henerey had complied with Rule KJ-R and had secured approval

for the distribution. The District has a legitimate interest in divorcing its extracurricular

programs from controversial and sensitive topics, such as teenage sex, see Hazelwood,

484 U.S. at 272, an interest that would be brought to naught were the school

administration not allowed to discipline those whose conduct would necessarily embroil

those extracurricular activities in the very topics from which they were to remain free.

Nor can there be any doubt that teenage sex is a controversial topic in the public

schools. For example, parents have brought suit against school districts because their

children were exposed to offensive or graphic materials without their consent. See,

e.g., Parents United for Better Schools, Inc. v. School Dist. of Philadelphia Bd. of

Educ., 148 F.3d 260 (3d Cir. 1998); Brown v. Hot, Sexy and Safer Productions, Inc.,

68 F.3d 525 (1st Cir. 1995). At the very least, school districts have an interest in

requiring prior notice from anyone proposing to introduce students to information or
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materials of an explicit sexual nature, notice that would enable school administrators

to avoid or at least minimize the threat of costly confrontations by arranging

accommodations for those with strong objections to such material. Thus, it was well

within the District’s rights to disqualify Henerey for his actions in distributing material

that ran counter to the District’s pedagogical concern and its educational mission.

Conclusion

“[T]he education of the Nation’s youth is primarily the responsibility of parents,

teachers, and state and local school officials, and not of federal judges.” Hazelwood,

484 U.S. at 273. “It is only when the decision to censor a school-sponsored . . . vehicle

of student expression has no valid educational purpose that the First Amendment is so

directly and sharply implicated as to require judicial intervention to protect students’

constitutional rights.” Id. (citations, internal quotation marks and brackets omitted).

That was not the case here, and thus we affirm the summary judgment.

The judgment is affirmed.

WOLLE, District Judge, dissenting.

In my view, Adam Henerey’s First Amendment claim deserved a better fate than

summary judgment. Genuinely disputed factual issues, decided in his favor, might well

have resulted in a jury verdict granting him some relief in money damages from one or

more of the defendants who disallowed his election as junior class president of St.

Charles High School. 

I focus on the reason that the school principal gave for disqualifying Henerey

from holding his elected office, a reason this record discloses may have been a pretext

for censoring the content of his safe-sex message. Henerey had obtained advance

approval of his campaign slogan – “Adam Henerey, The Safe Choice.” On the date of
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the election, he offered to hand out campaign stickers with about twenty condoms to

any student who requested one. The principal’s only stated reason to disqualify

Henerey was his failure to comply with School Board Rule KJ-R, quoted in part in the

majority opinion. That rule, entitled, “ADVERTISING IN THE SCHOOLS”, may

have given inadequate notice to students that materials Henerey wished to distribute

might need advance approval while candy and buttons other candidates were handing

out would not need advance approval. Arguably the rule also failed to give Henerey

adequate notice that handing out his materials might cause disqualification from serving

in the elective office he sought. 

I believe jurors, drawing reasonable inferences from the evidence, could find that

the school principal and other administrators applied the Rule KJ-R to Henerey and not

others only when they realized that Henerey’s message connoted prevention of sexual

diseases by use of such protective devices as condoms. From the principal’s approval

of materials like candy and buttons distributed by other candidates and refusal to allow

Henerey’s materials, a jury could well decide it was the message and not the approval

process that cost Henerey his junior class presidency. Reasonable jurors could also

conclude that disqualification was a punishment disproportionate to Henerey’s failure

to receive specific advance approval to distribute his materials to students requesting

them. 

I disagree with the suggestion that safe sex among high school students is such

a controversial topic that school officials may squelch its discussion in a schoolsponsored school election contest. 

I therefore respectfully dissent from the summary rejection of Adam Henerey’s

First Amendment claim. 
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.