
USCA1 Opinion

	




                            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.                                           -2-            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.                                         -3-            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.                                         -4-            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,                                         -5-            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.                                         -6-                                 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                                         -7-                      to    engage    in   non-school-sponsored                      expression   that   may   reasonably   be                      considered   vulgar,    but   causes   no                      disruption or disorder?                                         -8-
