Pyle v. South Hadley School Committee

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 94-2050

JEFFREY J. PYLE, ET AL.,

Plaintiffs, Appellants,

v.

THE SOUTH HADLEY SCHOOL COMMITTEE, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Cyr, Circuit Judge,

Aldrich, Senior Circuit Judge,

and Boudin, Circuit Judge.

William C. Newman with whom John Reinstein, Massachusetts Civil

Liberties Union Foundation, and Christopher H. Pyle were on brief for

appellants.
Raymond R. Randall with whom Ryan, Boudreau, Randall &

Kirkpatrick was on brief for appellees.

May 26, 1995

ALDRICH, Senior Circuit Judge. Two South Hadley

High School students, Jonathan and Jeffrey Pyle, sued the

principal, the superintendent and the School Committee of the

South Hadley School (the "School") for violation of their

First Amendment and state statutory rights. The Pyles were

each excluded from the School at one time or another for

wearing tee-shirts emblazoned with messages its officials

deemed in violation of its dress code. The district court

granted the Pyles' request for injunction against the code's

harassment provision, but upheld the provision prohibiting

message clothing considered obscene, lewd, or vulgar.1 Only

the Pyles appeal, and the sole issue is the validity of the

court's ruling with respect to the anti-vulgarity provision.

The court held that neither the Massachusetts

statute, post, nor the First Amendment, prevents the School

from prohibiting clothing exhibiting messages school

officials reasonably consider obscene, lewd or vulgar, even

if sporting such clothing causes no disruption or disorder.

Pyle v. South Hadley School Committee, 861 F. Supp. 157 (D.

Mass. 1994). We vacate the court's ruling on the state law,

and on our own motion certify a question regarding its

interpretation to the Supreme Judicial Court of

1. This provision of the dress code reads:

Students . . . are not to wear clothing
that . . . [h]as comments or designs that
are obscene, lewd or vulgar.

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Massachusetts. We defer ruling with respect to the federal

constitutional question pending resolution of the Pyles'

rights under state law, and retain jurisdiction.2

I. Background
I. Background

The court's findings of fact amply illustrate the

trajectory of the tee-shirt turmoil; we simply summarize.

All began on March 24, 1993, when a gym teacher

objected to a shirt Jeffrey wore to her class trumpeting,

"Coed Naked Band: Do It To The Rhythm." This set in motion

a series of face-offs between Jeffrey, backed by his father,

Christopher Pyle, a college teacher of constitutional law,

later joined by his younger brother Jonathan, and various

school officials over the exercise and permissible extent of

the School's authority to regulate student attire in school.

Twice Jeffrey requested that the School formally draft a

dress code because the informal system that had operated

until then was, in his opinion, too vague. When it finally

relented and issued a code containing the provision at issue

here, the Pyles signalled their opposition by sporting a

series of shirts emblazoned with messages deliberately

calibrated to test the mettle and sweep of the School's

enforcement authority. Shirts were banned, then unbanned, as

the School struggled to implement its new dress code under

2. Manifestly if the statute does not disempower the School
we shall have to consider the First Amendment.

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the Pyles' assault. Ultimately, only the Coed Naked shirt

that originally sparked the conflict, and one other, worn by

Jonathan ("See Dick Drink. See Dick Drive. See Dick Die.

Don't Be A Dick."), were banned under the new policy.

II. Public School Students' Freedom of Expression
II. Public School Students' Freedom of Expression

Under Massachusetts Law
Under Massachusetts Law

In 1974 Massachusetts enacted a statute that reads,

in pertinent part:

The right of students to freedom of
expression in the public schools of the
commonwealth shall not be abridged,
provided that such right shall not cause
any disruption or disorder within the
school. Freedom of expression shall
include without limitation, the rights
and responsibilities of students,
collectively and individually, (a) to
express their views through speech and
symbols, (b) to write, publish and
disseminate their views, (c) to assemble
peaceably on school property for the
purpose of expressing their
opinions. . . .

M.G.L. c. 71, 82.3 The statute was originally applicable

only to those cities and towns which chose to accept it, but

became mandatory throughout the State in 1988. St.1988, c.

137, M.G.L. c. 71, 86, as amended.

There is no Massachusetts decisional law

interpreting section 82. If, as the Pyles contend, it

creates a broad student right to exhibit messages subject to

3. The statute also exempts the school and school officials
from criminal and civil liability for student expression.

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restriction only for obscenity, defamation, fighting words,

incitement and disruption, we need not reach the question

whether the First Amendment does so. There is no contention

that the tee-shirts fell into any of these concededly

prohibitable categories, so we start with a routine question

of statutory interpretation. We do not find the answer

altogether clear.

On the sole basis of a press release issued by the

legislator who sponsored the 1988 amendment, the district

court read the statute to "require[] that 'school-sponsored'

speech, such as articles in student-run newspapers, . . . be

judged by the same standard as 'school-tolerated' speech,"

but to have "no relevance . . . to the analysis of a school

administrator's efforts to curb vulgarity and sexual

innuendo." 861 F. Supp. at 168. Its conclusion, 861 F. Supp.

at 167, that the statute was "aimed at" the Supreme Court's

decision in Hazelwood School District v. Kuhlmeier, 484 U.S.

260 (1988) (holding public school officials may regulate the

content of school newspapers, plays and other "school

sponsored expressive activities"), presumably meant aimed at

the Hazelwood principle, as the statute preceded the actual

decision by fourteen years. However, neither the statute nor

the amendment rendering it mandatory mentions anything about

"school-sponsored" or "school-tolerated" speech. We do not

consider the press sheet of a former high school journalist,

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issued fourteen years after the original statute was written,

to offer adequate interpretive guidance. Nor does any

legislative history provide a basis for the court to build

clauses into the statute. On its face, the statute

guarantees students' freedom of expression "shall not be

abridged" except insofar as it "cause[s] any disruption or

disorder within the school." M.G.L. c. 71, 82. Students

may "express their views through speech and symbols,"

presumably including a stance against drinking and driving,

"without limitation." Id.

It is difficult to think of at least the "See Dick"

shirt, though reasonably thought vulgar, as not expressing a

"view." At the same time, our difficulty with proceeding

along this straightforward route is that it puts a federal

court in the awkward position of issuing this binding

interpretation ahead of any state tribunal where, despite the

apparent language, it is quite possible that the

Massachusetts legislature never considered licensing students

to use vulgarity at will in the public schools, and depriving

school officials of all authority to regulate it if non-

disruptive. Nor is it easy to read into the statute a

blanket prohibition against a school's suppressing vulgarity.

In the absence of any state court interpretation, we would be

in the position of dictating state-wide policy to local

school officials at the behest of two students.

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III. Certification
III. Certification

While uncertainty or difficulty regarding state law

is generally not sufficient to justify traditional

abstention, Meredith v. City of Winter Haven, 320 U.S. 228,

64 S.Ct. 7, 88 L.Ed. 9 (1943), it may be enough to counsel

certification where that procedure is available. Lehman

Bros. v. Schein, 416 U.S. 386, 390-91, 94 S.Ct. 1741, 1744,

40 L.Ed.2d 215 (1974) (certification "helps build a

cooperative judicial federalism"). We would be reluctant to

burden the Court with certification, and the litigants with

the attendant delay, were we not convinced that the statutory

question is of sufficient and prospective importance to state

policy in the administration of its school system, and

affects students and school administrators statewide for us

to make a far-reaching decision without advice. We,

accordingly, certify on our own motion an issue of state law

to give the Supreme Judicial Court the opportunity to clarify

the extent of state-created rights. See Globe Newspaper Co.

v. Beacon Hill Architectural Comm'n, 40 F.3d 18, 22 (1st Cir.

1994).

We certify the following question to the Supreme

Judicial Court of Massachusetts pursuant to its Rule 1:03,

382 Mass. 698, 700 (1981), and retain jurisdiction pending

its determination:

Do high school students in public schools
have the freedom under M.G.L. c. 71, 82

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to engage in non-school-sponsored
expression that may reasonably be
considered vulgar, but causes no
disruption or disorder?

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