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Published in Print: January 12, 2000, as Law Update

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Election Strategy Runs Afoul of School Rules

A federal appeals court has sided with a Missouri high school principal who disqualified a student whose campaign for junior class president included the distribution of condoms.

The student, Adam Henerey, won the election in the spring of 1997. But Principal Jerry Cook of St. Charles (Mo.) High School disqualified Mr. Henerey because he had failed to comply with a school rule that required prior approval from the principal or assistant principal before distributing any materials.

Mr. Henerey and his father sued the 6,370-student St. Charles school district and the principal, alleging that his disqualification was a violation of the First Amendment because school officials objected to the content of his speech—the distribution of condoms attached to campaign stickers.

A federal district court granted summary judgment to the school district, ruling that the student election was a school-sponsored activity and that the principal's actions were reasonably related to legitimate educational goals.

On Dec. 29, the U.S. Court of Appeals for the 8th Circuit affirmed the district court's ruling. A panel of the St. Louis-based court voted 2-1 in favor of the school district.

The majority held that because Mr. Henerey's condom distribution was part of the school-sponsored election, it was effectively school-sponsored speech and not independent speech.

It rejected the student's argument that the school's prior-approval rule was applied selectively to him because administrators had allowed other candidates to distribute candy and chewing gum without such approval.

"The distribution of condoms is qualitatively different from the handing out of candy or gum," said the opinion by Chief Judge Roger L. Wollman. "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."

"Henerey's distribution of the condoms carried with it the implied imprimatur of the school," Judge Wollman added.

The dissenting judge said the student was entitled to a trial.

"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," Judge Charles R. Wolle wrote.


Violent Essay: An 8th grader's essay about an upset student who beheads his teacher with a machete is not protected speech under the First Amendment, a Wisconsin state appeals court has ruled.

The Wisconsin Court of Appeals upheld a finding of delinquency in the case of a Oconto, Wis., student identified in court papers as Douglas D.

An English teacher known in class as Mrs. C sent Douglas to the hallway to do a writing assignment after he was disruptive in class, according to court papers. When the student turned in his paper, the teacher was upset and called the assistant principal of Washington Middle School in Oconto.

Douglas' essay refers to "an ugly old woman" named Mrs. C who kicked a student named Dick out of her class one day. "The next morning Dick came to class & in his coat he conseled a machedy. When the teacher told him to shut up he whiped it out & cut her head off."

Douglas apologized for the essay and said he meant no threat to his teacher. But the 1,400-student Oconto school district near Green Bay suspended him for a year, and state authorities filed a delinquency petition alleging that Douglas had engaged in disorderly conduct.

A state trial court found him delinquent. In his appeal, the student argued that he was unconstitutionally punished for exercising his right to free speech.

The state appeals court held in its Dec. 14 opinion that the essay fell within the category of speech known as true threats, which are not protected by the First Amendment.


Pregnant Teacher: A Roman Catholic school teacher dismissed for engaging in premarital sex deserves her day in court, a federal appeals court has ruled.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, based in Cincinnati, unanimously revived the federal sex-discrimination lawsuit filed by Leigh Cline, whose teaching contract wasn't renewed when leaders of the Catholic Diocese of Toledo, Ohio, learned she had become pregnant before her 1996 wedding.

Ms. Cline was a 2nd grade teacher at St. Paul Elementary and High School in Toledo when she informed her superiors in March 1996 that she was pregnant. Her wedding was in February of that year.

The pastor of St. Paul Parish correctly concluded that Ms. Cline had engaged in premarital sex. The pastor informed Ms. Cline in a letter that her teaching contract would not be renewed because "parents in the community have serious concerns about a teacher who marries and is expecting a child five months after the wedding date. ... The Church does not uphold sexual intercourse outside of marriage."

Ms. Cline sued the diocese under Title VII of the Civil Rights Act of 1964, claiming that she was discriminated against based on sex and pregnancy. A federal district court issued a summary judgment for the diocese.

The appeals court reversed the district court in a Dec. 28 ruling. It held that there was enough of a dispute over the facts to warrant a trial on Ms. Cline's claims.

The appellate court said the Toledo Diocese and its schools would not violate Title VII if it enforced its policy against premarital sex in a gender-neutral way. But Ms. Cline provided evidence that the diocese does not inquire about whether its male teachers have engaged in premarital sex, the court said.

—Mark Walsh

Vol. 19, Issue 17, Page 8

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