M.A.L. v. Kinsland

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0362p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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M.A.L., a minor child, by and through his parents
Plaintiff-Appellee, -
and next friends, M.L. and S.A.,
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No. 07-1409
,
v. >
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Defendant-Appellant. -
STEPHEN KINSLAND,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 07-10391—Victoria A. Roberts, District Judge.
Argued: March 13, 2008
Decided and Filed: October 7, 2008
Before: KEITH, DAUGHTREY, and ROGERS, Circuit Judges.
_________________
COUNSEL
ARGUED: Roy H. Henley, THRUN LAW FIRM, East Lansing, Michigan, for Appellant. Byron
J. Babione, ALLIANCE DEFENSE FUND, Scottsdale, Arizona, for Appellee. ON BRIEF: Roy
H. Henley, Kirk C. Herald, Martha J. Marcero, THRUN LAW FIRM, East Lansing, Michigan, for
Appellant. Byron J. Babione, Benjamin W. Bull, Delia B. van Loenen, ALLIANCE DEFENSE
FUND, Scottsdale, Arizona, Steven M. Jentzen, STEVEN M. JENTZEN, P.C., Ypsilanti, Michigan,
for Appellee. Steven W. Fitschen, NATIONAL LEGAL FOUNDATION, Virginia Beach, Virginia,
Francisco M. Negron, Jr., NATIONAL SCHOOL BOARD ASSOCIATION, Alexandria, Virginia,
for Amici Curiae.
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OPINION
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ROGERS, Circuit Judge. This case presents the question of whether it is constitutional for
a public middle school to regulate the time, place, and manner of a student’s speech by preventing
him from handing out leaflets in school hallways between classes and instead allowing him to post
his leaflets on hallway bulletin boards and to distribute them during lunch hours from a cafeteria
table. The district court held that such a regulation of student speech is unconstitutional absent a
showing that the speech is likely to cause a material and substantial interference with the
1
No. 07-1409 M.A.L. v. Kinsland Page 2
requirements of appropriate discipline in the operation of the school, citing the Supreme Court’s
decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
The district court permanently enjoined enforcement of Jefferson Middle School’s distribution
policy and its prohibition on the student’s hallway distribution. The court also awarded the student
one dollar in nominal damages. For the reasons that follow, we reverse the district court’s entry of
a permanent injunction and its award of nominal damages.
I.
Michael, a 14-year-old, eighth-grade student,1 participated in the nationwide “3rd Annual
Pro-Life Day of Silent Solidarity” organized by the national group “Stand True.” On the designated
day, middle and high school students across the country express their views against abortion by
wearing red armbands, distributing literature detailing various facts about abortion, and remaining
silent throughout the school day with red tape over their mouths to symbolize that they speak for
unborn children. Michael arrived at school on October 24, 2006, with red duct tape over his mouth
and wrists, wearing a sweatshirt that said “Pray to End Abortion.” Before school started, Michael
also distributed leaflets containing abortion statistics to those who approached him.
During Michael’s first-hour class, his teacher, Gary Boudrie, sent him to the principal’s
office, stating that Michael’s sweatshirt and tape were causing a disruption. Because the principal
was not yet in that morning, Michael was sent to Andrea Werner, a guidance counselor. After
speaking with the School District’s Superintendent, Timothy Fitzpatrick, Mrs. Werner told Michael
that he must remove the duct tape and either turn his sweatshirt inside-out, take it off, or wear a
different shirt. According to Michael, Mrs. Werner explained to him that his message was
“political” and that the school “could speak about abstinence, but not about abortion, and that the
school had to remain neutral and people couldn’t take sides.” Neither Mrs. Werner nor Mr. Boudrie
discussed Michael’s leaflets, and Michael eventually returned to class.
Michael claims that later that day, in the cafeteria, he wished to use the front pocket of his
sweatshirt to carry his school binder so that he could use his hands to carry his saxophone to band
class. Michael turned his sweatshirt right-side-out and began covering its “Pray to End Abortion”
message with a piece of paper and tape. Mrs. Werner saw Michael switching his sweatshirt right-
side-out and sent him to the principal’s office, where Principal Stephen Kinsland reiterated to
Michael the previously issued sweatshirt directives.
While in Principal Kinsland’s office Michael raised the issue of leaflet distribution. Principal
Kinsland informed Michael that his leaflets had to be pre-approved before he could distribute them
and that, because Michael’s leaflets had not been approved, he could not distribute them that day.
Kinsland testified that students typically ask his permission before posting or distributing literature,
and that Michael had asked Kinsland earlier that year for permission to post flyers about forming
a student Christian club and was granted permission. Michael testified, however, that although he
had asked for permission to post materials in the past, he did not think he needed permission to
distribute leaflets. No disciplinary action was taken against Michael on October 24, and Principal
Kinsland spent part of the afternoon picking up leaflets from hallway floors and removing those that
had been taped to drywall and appliances.
1
Michael attends Jefferson Middle School, which has 7th and 8th grade classes, but also has a preschool and
pre-primary impaired classrooms. Children begin attending the preschool and pre-primary impaired programs at
approximately age 3, and mix with the older children in the halls.
No. 07-1409 M.A.L. v. Kinsland Page 3
On January 24, 2007, Michael and his parents filed the instant lawsuit,2 expressing an
“urgent need” for injunctive and declaratory relief so that Michael could engage in a similar protest
on January 31, 2007. Michael also sought damages “to vindicate his constitutional rights which
were violated by Defendants.” On January 29, 2007, the parties made the following stipulations
regarding the January 31 protest:
1. Plaintiff cannot wear tape on his mouth.
2. Plaintiff may wear red tape on his wrists.
3. Plaintiff may wear a black hooded sweatshirt which says on the front, “Pray to
End Abortion.”
4. Jefferson School District retains the right to control the conduct if there are
material and substantial disruptions or the reasonable forecast of such disruptions.
5. Plaintiff may engage in 1-3 until final judgment is entered by the Court.
6. For purposes of the equitable relief sought, Defendants are not taking the position
that the literature Plaintiff seeks to distribute would cause a substantial disruption or
a material interference with the normal operation of the school or school activities.
The parties did not reach agreement, however, on whether Michael would be allowed to distribute
his leaflets in the school hallways.
In pertinent part, the school’s distribution policy provides that
Students will have the right to distribute and possess in or on school premises, school
buses, or at school sponsored activities any form of literature, including but not
limited to newspapers, magazines, leaflets, and pamphlets. Students shall be
responsible for the content of such materials. This right is, however, subject to
limitation in accordance with standards of responsible journalism and in
consideration of the rights and welfare of the entire student community.
In order to ensure that the welfare and rights of the community are adequately
protected, the following will apply in the case of any distribution of literature on
school premises or at times students are under the jurisdiction of the school:
1. Any literature which a student wishes to distribute or possesses to distribute will
first be submitted to the principal, or his/her designee, for approval. The principal
may have up to three days to review the material before approving or disapproving.
If disapproved, the principal shall state the reasons in writing.
...
3. The principal may deny approval to the distribution of any literature the content
or distribution of which he/she reasonably determines:
2
Named as defendants were Stephen Kinsland, individually and in his official capacity as Principal of Jefferson
Middle School; Timothy Fitzpatrick, in his official capacity as Superintendent of Jefferson School District; Andrea
Werner, individually and in her official capacity as a Guidance Counselor at Jefferson Middle School; Gary Boudrie,
individually and in his official capacity as a teacher at Jefferson Middle School; and the Jefferson School District.
No. 07-1409 M.A.L. v. Kinsland Page 4
a. Would cause a substantial disruption of or a material interference with the
normal operation of the school or school activities.
b. Is potentially offensive to a substantial portion of the school community
due to the depiction or description of sexual conduct, violence, morbidity or
the use of language which is profane or obscene which is inappropriate for
the school environment as judged by the standards of the school community.
c. Is libelous or which violates the rights of privacy of any person.
d. Is false or misleading or misrepresents facts.
e. Is demeaning to any race, religion, sex, or ethnic group.
f. Encourages violation of local, state or federal laws.
...
6. In the event the submitted publication is denied the privilege of distribution, the
applicant may:
a. Appeal the decision of the principal within five (5) school days to the
superintendent, who shall reply within five (5) school days.
b. Further appeal may be made to the Board of Education within five (5)
school days. The Board shall provide a hearing within ten (10) days with the
decision made at its next regular meeting.
7. Distribution is defined as giving out or division among a number of persons,
sharing or parceling out, allotting, dispensing, apportioning, either by physically
doing so or placing the material to be distributed in any public area so that another
person may obtain the same either for a free [sic] or without charge.
8. If the principal gives his/her approval, he/she may designate a time and/or a place
at which the distribution may take place. The distribution shall be orderly and the
designated area for distribution shall be kept free of loosely scattered material.
Although the policy is not formally distributed to students, Principal Kinsland testified that he reads
any amendments to the policy to the students at an assembly at the beginning of each school year.
Neither Michael nor his parents provided Michael’s proposed leaflets to the school before
filing suit on January 24, and Michael did not formally seek permission to distribute them on the
31st. The school nevertheless offered to allow Michael to post his leaflets on bulletin boards in the
hallways and to distribute them in the cafeteria during lunch, reasoning that the school is entitled
to place reasonable time, place, and manner restrictions on the distribution of literature. Michael
was dissatisfied with the school’s offer, however, and argued pursuant to Tinker v. Des Moines
Independent Community School District, 393 U.S. 503 (1969), that the school may only regulate the
time, place, and manner of his speech if his leaflet distribution is likely to cause a material and
substantial disruption. The parties agreed that Michael’s leaflet distribution was not likely to cause
a disruption, and Michael accordingly argued that he has a constitutional right to distribute his
leaflets in the school hallways.
The district court rejected the school district’s arguments and entered a preliminary
injunction on January 31 prohibiting the school from restricting Michael’s leafleting in the hallways.
No. 07-1409 M.A.L. v. Kinsland Page 5
The court concluded that, because the school had not demonstrated that the leafleting had caused
or would cause a material and substantial disruption under Tinker, restricting Michael’s distribution
to hallway bulletin boards and the cafeteria violated Michael’s First Amendment rights. The court
also concluded that the school’s distribution policy was unconstitutionally overbroad because it
applies to “any distribution of literature on school premises,” which the court reasoned could
potentially prohibit students from distributing car or music magazines to their friends without prior
approval.
The district court converted its preliminary injunction into a permanent injunction on
March 19, 2007, permanently enjoining the school’s enforcement of its distribution policy and
specifically stating that the school could not restrict Michael’s literature distribution absent a
showing that his distribution would “materially and substantially interfere with the requirements of
appropriate discipline in the operation of Jefferson Middle School, or intrude upon the rights of other
students.” The court also awarded Michael nominal damages of one dollar.
On appeal, the school district argues that it is entitled to place reasonable time, place, and
manner restrictions on students’ distribution of literature and that the district court erred in applying
the heightened Tinker standard—applicable to content and viewpoint specific regulations—to its
distribution policy. The school additionally argues that the district court’s award of damages was
inappropriate and that the individual defendants are entitled to qualified immunity.
II.
While it is true that students and teachers do not “shed their constitutional rights to freedom
of speech or expression at the schoolhouse gate,” Tinker, 393 U.S. at 506, “[i]t is also common
ground . . . that the First Amendment does not guarantee the right to communicate one’s views at
all times and places or in any manner that may be desired,” Heffron v. Int’l Soc. for Krishna
Consciousness, Inc., 452 U.S. 640, 647 (1981). “Nothing in the Constitution requires the
Government freely to grant access to all who wish to exercise their right to free speech on every type
of Government property without regard to the nature of the property or to the disruption that might
be caused by the speaker’s activities.” Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473
U.S. 788, 799-800 (1985). The extent to which the government may regulate speech in a particular
forum depends upon the nature of the forum. Id.Repeated statements by the Supreme Court and multiple circuits, including this one, make
it clear that school areas such as hallways constitute nonpublic forums. As the Supreme Court
explained in a case involving a school newspaper:
The public schools do not possess all of the attributes of streets, parks, and other
traditional public forums that “time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public
questions.” Hence, school facilities may be deemed to be public forums only if
school authorities have “by policy or by practice” opened those facilities “for
indiscriminate use by the general public,” or by some segment of the public, such as
student organizations. If the facilities have instead been reserved for other intended
purposes, “communicative or otherwise,” then no public forum has been created, and
school officials may impose reasonable restrictions on the speech of students,
teachers, and other members of the school community. “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 discourse.”
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988) (internal citations omitted). Our
circuit has held that the grounds of a public school were “neither a traditional public forum nor a
No. 07-1409 M.A.L. v. Kinsland Page 6
government-designated one,” despite Ohio’s use of the school for polling purposes on election day.
United Food & Commercial Workers Local 1099, 364 F.3d 738, 749 (6th Cir. 2004). In the case
involving the distribution of materials, the Seventh Circuit has held that a public elementary school
is not a public forum. Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530, 1539-40 (7th Cir. 1996).
See also Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1300 (7th Cir. 1993)
(concluding that junior high school is a nonpublic forum); Peck v. Upshur County Bd. of Educ., 155
F.3d 274, 277-78 (4th Cir. 1998) (accepting district court’s conclusion that school is a nonpublic
forum); LoPresti v. Galloway Twp. Middle Sch., 885 A.2d 962, 967 (N.J. Super. Ct. Law Div. 2004)
(holding school a nonpublic forum).
Jefferson school authorities have done nothing to indicate that the Jefferson Middle School
hallways have been opened for indiscriminate use by the public, and the hallways therefore
constitute a nonpublic forum. The school district accordingly is entitled to put time, place, and
manner restrictions on hallway speech so long as the restrictions are viewpoint neutral and
reasonable in light of the school’s interest in the effectiveness of the forum’s intended purpose.
United States v. Kokinda, 497 U.S. 720, 730 (1990); Putnam Pit, Inc. v. City of Cookeville, Tenn.,
221 F.3d 834, 845 (6th Cir. 2000).
The school in this case offered to allow Michael to post his leaflets on bulletin boards in the
hallways and to distribute them in the cafeteria during lunch, despite the fact that Michael has never
sought permission to distribute his leaflets in accordance with the school’s distribution policy. This
minor regulation of Michael’s speech is eminently reasonable. “Prohibiting handbilling in the
hallway between classes is . . . reasonable to avoid congestion, confusion, and tardiness, to say
nothing of the inevitable clutter caused when the recipient indiscriminately discards the handout,”
Muller, 98 F.3d at 1543, and there is no indication that Jefferson’s proposed time, place, and manner
regulation of Michael’s speech is based on a desire to suppress Michael’s anti-abortion viewpoint.
Indeed, as the school district noted in its brief, the school’s regulation allows Michael ample
opportunity to express his viewpoint to his fellow schoolmates:
Interested individuals will be able to obtain copies of the literature he wishes to
distribute, either from appropriate bulletin board or hallway postings, or from a
cafeteria table. By those means, the entire middle school population will have access
to this information during virtually all non-instructional time.
It is also reasonable for the school to require prior approval before permitting students to
distribute literature. “There is nothing unconstitutional per se in a requirement that students submit
materials to the school administration prior to distribution,” Shanley v. Ne. Indep. Sch. Dist., 462
F.2d 960, 969 (5th Cir. 1972), and the particular distribution policy at issue in this case is well3
within constitutional boundaries. Jefferson’s distribution policy is viewpoint and content neutral,
and it provides clear standards against which the principal must exercise his discretion to approve
or disapprove of a proposed distribution. Indeed, without such standards, the policy would be more
open to attack as subject to arbitrary enforcement. Cf. Heffron, 452 U.S. at 649 (noting, in the
context of public forums, the constitutional problems inherent in policies providing broad,
standardless discretion to implementing officials); Ater v. Armstrong, 961 F.2d 1224, 1227-28 (6th
Cir. 1992) (rejecting argument that statute forbidding literature on public roadways vested officials
3
Although the policy refers to the “content” of the literature in detailing the circumstances under which the
principal may deny approval for distribution, the policy is “content neutral” in the constitutional sense. It does not, for
example, limit distribution approval to literature about race cars, but rather carves out specific categories of speech that
the Supreme Court has held may be constitutionally proscribed, such as speech that would cause a substantial disruption
of or material interference with the normal operation of the school (Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393
U.S. 503 (1969)); sexually explicit, violent, profane, or obscene speech (Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S.
675 (1986)); and speech that encourages violation of the law (Morse v. Frederick, 127 S. Ct. 2618 (2007)).
No. 07-1409 M.A.L. v. Kinsland Page 7
with arbitrary discretion); Putnam Pit, 221 F.3d at 845-46; Child Evangelism Fellowship of Md.,
Inc. v. Montgomery County Pub. Sch., 457 F.3d 376, 386 (4th Cir. 2006) (noting broad agreement
that “even in limited public and nonpublic forums, investing governmental officials with boundless
discretion over access to the forum violates the First Amendment”).
Moreover, Jefferson’s distribution policy is not overbroad. Although Michael and his
parents argue that, because the policy requires prior approval for the distribution of “any literature,”
it could potentially require students to seek approval before passing a note or handing a magazine
to a friend, a common-sense reading of the policy reveals that this concern is unfounded. Prior
approval is only required for “distribution,” which action the policy clearly defines as
giving out or division among a number of persons, sharing or parceling out, allotting,
dispensing, apportioning, either by physically doing so or placing the material to be
distributed in any public area so that another person may obtain the same either for
a [fee] or without charge.
(Emphasis added.) Thus, while Michael must receive approval before he is allowed to hand out his
leaflets to multiple students, he would not be required to seek permission before passing a car
magazine to a friend at lunch. The plaintiff also misconstrues the policy when he asserts that it
allows Jefferson to deny distribution approval if it merely determines material to be “inappropriate.”
While the word “inappropriate” does appear in the policy, it appears in the context of a much more
specific paragraph that allows the principal to deny distribution approval to a narrow category of
unprotected speech and speech that schools have authority to prohibit under the Supreme Court’s
decision in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986):
The principal may deny approval to the distribution of any literature the content or
distribution of which he/she reasonably determines . . . [i]s potentially offensive to
a substantial portion fo the school community due to the depiction or description of
sexual conduct, violence, morbidity or the use of language which is profane or
obscene which is inappropriate for the school environment as judged by the
standards of the school community.
Distribution Policy, J.A. 57.
Contrary to Michael’s arguments, this case is not governed by the heightened “material and
substantial interference” standard articulated by the Supreme Court in Tinker. In that case, a group
of adults and students in Des Moines held a meeting and agreed to publicize their objections to the
Vietnam War by wearing black armbands. 393 U.S. at 504. Des Moines school authorities caught
wind of this plan and, in response, adopted a policy that any student wearing an armband to school
would be asked to remove it and suspended if he refused. Id. John Tinker, a 15-year-old public high
school student, wore a black armband to school in accordance with the protest and was promptly
sent home and suspended. Id. The Supreme Court held that, in the absence of any evidence that
Tinker’s expression of opinion was likely to cause a material and substantial interference with the
requirements of appropriate discipline in the operation of the school, the school’s suppression of
Tinker’s speech violated Tinker’s First Amendment rights. Id. at 511-14.
The key difference between Tinker and the instant case is that the school officials in
Tinker sought to silence the student because of the particular viewpoint he expressed, while the
Jefferson school authorities have merely sought to regulate the time, place, and manner of Michael’s
speech irrespective of its content or his viewpoint. This distinction is evident from the Tinker
opinion:
In order for the State in the person of school officials to justify prohibition
of a particular expression of opinion, it must be able to show that its action was
No. 07-1409 M.A.L. v. Kinsland Page 8
caused by something more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint. Certainly where
there is no finding and no showing that engaging in the forbidden conduct would
‘materially and substantially interfere with the requirements of appropriate discipline
in the operation of the school,’ the prohibition cannot be sustained.
...
. . . [T]he action of the school authorities appears to have been based upon an
urgent wish to avoid the controversy which might result from the expression, even
by the silent symbol of armbands, of opposition to this Nation’s part in the
conflagration in Vietnam. It is revealing, in this respect, that the meeting at which
the school principals decided to issue the contested regulation was called in response
to a student’s statement to the journalism teacher in one of the schools that he wanted
to write an article on Vietnam and have it published in the school paper. (The
student was dissuaded.)
It is also relevant that the school authorities did not purport to prohibit the
wearing of all symbols of political or controversial significance. The record shows
that students in some of the schools wore buttons relating to national political
campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism.
The order prohibiting the wearing of armbands did not extend to these. Instead, a
particular symbol—black armbands worn to exhibit opposition to this Nation’s
involvement in Vietnam—was singled out for prohibition. Clearly, the prohibition
of expression of one particular opinion, at least without evidence that it is necessary
to avoid material and substantial interference with schoolwork or discipline, is not
constitutionally permissible.
Id. at 509-11 (emphasis added) (footnotes omitted).
Thus schools must meet a higher constitutional standard when they seek to foreclose
particular viewpoints than when they seek merely to impose content-neutral and viewpoint-neutral
regulations of the time, place, and manner of student speech. While Tinker requires schools to
demonstrate a “material and substantial interference” with the educational process in order
constitutionally to silence a student on the basis of the student’s particular viewpoint, Jefferson
School District certainly need not satisfy this demanding standard merely to impose a viewpoint-
neutral regulation of the manner of Michael’s speech to prevent hallway clutter and congestion.4
Other circuits have come to the same conclusion. The Fifth Circuit in Canady v. Bossier
Parish School Board, 240 F.3d 437, 442-43 (5th Cir. 2001), concluded that the Supreme Court’s
Tinker/Fraser/Hazelwood trilogy of cases does not control viewpoint-neutral time, place, and
manner restrictions. The Fourth Circuit in Glover v. Cole, 762 F.2d 1197, 1202-03 (4th Cir. 1985),
rejected Tinker’s application to a neutral time, place, and manner regulation prohibiting solicitation
on school grounds. See also Nelson v. Moline Sch. Dist., 725 F. Supp. 965, 973 (C.D. Ill. 1989)
(rejecting argument that “Tinker is to be mechanically applied in all cases involving non-school
speech” and explaining that “[o]nly where the restriction is truly content based must Tinker’s high
4
In a recent case deciding that the strict Tinker standard had been met, we reasoned broadly that school
regulation of the content of student speech should be analyzed under Tinker unless the speech falls within the Fraser
or Hazelwood categories. See Barr, et al. v. Lafon, et al., No. 07-5743, slip op. at 8 (6th Cir. Aug. 20, 2008). Our
phrasing in Barr should not be read, however, to require the application of Tinker beyond the context of content-specific
regulation to content-neutral time, place, and manner restrictions. Such a reading was not necessary to our decision in
that case, which involved content-specific regulation. Forum analysis was neither implicated nor addressed in Barr.
No. 07-1409 M.A.L. v. Kinsland Page 9
standard be imposed”); Lopresti v. Galloway Twp. Middle Sch., 885 A.2d 962 (N.J. Super. Ct. Law
Div. 2004); Phoenix Elem. Sch. Dist. No. 1 v. Green, 943 F.2d 836, 838 (Ariz. 1997); Isaacs v. Bd.
of Educ. of Howard County, Maryland, 40 F. Supp. 2d 335, 337 (D. Md. 1999); Guzick v. Drebus,
305 F. Supp. 472, 479 (N.D. Ohio 1969); Littlefield v. Forney Ind. Sch. Dist., 108 F. Supp. 2d 681,
691 (N.D. Tex. 2000). Indeed, requiring the Jefferson school district to satisfy Tinker’s heightened
standard in the present circumstances would produce numerous legal anomalies, the most obvious
of which is that schools would have less discretion over the use of school facilities than is exercised
by any other public entity over any other forum on public property. This is not the law. Time,
place, and manner restrictions may be enforced even in a traditional public forum so long as they
are content neutral, are narrowly tailored to serve a significant government interest, and leave open
ample alternative channels of communication. E.g., Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 45 (1983).
Finally, we reverse the district court’s award of one dollar in nominal damages. We read the
district court’s order as granting damages based on the unconstitutionality of Jefferson Middle
School’s distribution policy. Because the school’s distribution policy did not violate Michael’s
rights, no damages may be awarded on that basis.
III.
For the foregoing reasons, we reverse the district court’s entry of a permanent injunction and
its award of nominal damages.