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

__________________
Liberties

John Reinstein, Massachusetts Ci

______________ _________________

Union Foundation, and Christopher H. Pyle were on brief

___________________________

___________________

appellants.
Raymond R.
Randall
_____________________

with

whom

Ryan,
Boudreau, Randall
___________________________

Kirkpatrick was on brief for appellees.

___________

____________________

May 26, 1995

____________________

ALDRICH, Senior Circuit Judge.

_____________________

High

School students,

Jonathan and

Two South

Jeffrey Pyle,

Hadley

sued the

principal, the superintendent and the School Committee of the

South

Hadley School

(the "School")

for violation

First Amendment and

state statutory rights.

each

the School

excluded from

wearing

deemed

tee-shirts

at one

emblazoned with

in violation of its

The Pyles were

time or

messages

dress code.

of their

another for

its officials

The district court

granted the Pyles' request

for injunction against the code's

harassment

upheld the

provision, but

message clothing considered obscene,

the

Pyles appeal, and the sole

provision prohibiting

lewd, or vulgar.1

Only

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,
____

from

nor the First Amendment,

prohibiting

clothing

officials reasonably

if sporting

prevents the School

exhibiting

messages

consider obscene, lewd

such clothing causes no

or vulgar, even

disruption or disorder.

Pyle v. South Hadley School Committee, 861 F. Supp.

____
______________________________

Mass. 1994).

and

on

We vacate the court's ruling

our own

interpretation

motion

to

the

certify

Judicial

regarding

Court

____________________

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.

157 (D.

on the state law,

a question

Supreme

school

its

of

-2-

Massachusetts.

We defer

ruling with respect to

constitutional

question

pending

resolution

of

the federal

the Pyles'

rights under state law, and retain jurisdiction.2

I. Background
I. Background
______________

The court's findings of

fact amply illustrate

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

the

All began

objected

on March

to a shirt

"Coed Naked Band:

24, 1993,

Jeffrey wore

to her

Do It To The Rhythm."

a series of face-offs between Jeffrey,

Christopher

later

Pyle, a

joined by

when a gym

class trumpeting,

This set

in motion

backed by his father,

college teacher of

his younger

teacher

constitutional law,

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

dress

code because

informal system

until then was, in

relented and

here,

the

the School

formally draft

that had

his opinion, too vague.

When

operated

it finally

issued a code containing the provision at issue

the Pyles

signalled

their opposition

by sporting

series

of

calibrated

shirts

to test

emblazoned

the

enforcement authority.

the School

with

mettle and

messages

sweep

deliberately

of the

School's

Shirts were banned, then unbanned, as

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.

that

Ultimately, only

the Coed Naked

shirt

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
expression

students to freedom of

in the public

commonwealth

shall

provided that such

any

disruption

school.
include

without

be

abridged,

right shall not cause

or

Freedom

not

schools of the

disorder within
of

expression

limitation, the

the
shall

rights

and

responsibilities

collectively

and

express

their

symbols,

(b)

of

students,

individually,

views through
to

write,

purpose

on

school
of

to

speech and

publish

disseminate their views, (c)

peaceably

(a)

and

to assemble

property

expressing

for

the
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,

became mandatory throughout the

137, M.G.L. c. 71,

There

interpreting

State in 1988.

but

St.1988, c.

86, as amended.

is

no

Massachusetts

section 82.

creates a broad student right

____________________

If,

as

decisional

the Pyles

contend,

law

it

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

incitement

whether

that

the

obscenity, defamation, fighting

and disruption,

we need

the First Amendment does so.

tee-shirts

fell

into

prohibitable categories, so we

any

not reach

words,

the question

There is no contention

of

these

concededly

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

court read the statute to "require[] that

speech,

judged by

district

'school-sponsored'

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

the same

standard as 'school-tolerated'

but to have "no relevance

. . . to the analysis of

administrator's

to

efforts

innuendo." 861 F. Supp. at 168.

at 167, that the

curb

vulgarity

and

speech,"

a school

sexual

Its conclusion, 861 F. Supp.

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

sponsored expressive activities"), presumably meant

the Hazelwood
_________

principle, as the statute

decision by fourteen years.

consider the press

aimed at

preceded the actual

However, neither the statute nor

the amendment rendering it mandatory mentions

"school-sponsored" or

"school

anything about

"school-tolerated" speech.

We do not

sheet of a former high school journalist,

-5-

issued fourteen years after the original statute was written,

to

offer

adequate

interpretive

legislative history

clauses

into

guarantees

the

provide a basis

statute.

students'

abridged" except

On

freedom

insofar as

"express

presumably

their

views

face,

M.G.L. c. 71,

including a stance

"without limitation."

its

of expression

through

Nor

does

for the court

it "cause[s] any

disorder within the school."

may

guidance.

speech

any

to build

the

statute

"shall

not be

disruption or

82.

Students

and

symbols,"

against drinking and driving,

Id.
___

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

shirt, though reasonably thought

"view."

At

along this

court

in

the same time,

vulgar, as not expressing a

our difficulty

straightforward route is

the

awkward

position

with proceeding

that it puts

of

issuing

a federal

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

disruptive.

Nor

is

all authority

it easy

to

to

regulate it

read into

the

if non-

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

school officials at the behest of two students.

local

-6-

III. Certification
III. Certification
___________________

While uncertainty or difficulty regarding state law

is

generally

not

abstention, Meredith
________

sufficient

to

justify

v. City of Winter Haven,

____________________

traditional

320 U.S. 228,

64 S.Ct.

7, 88 L.Ed. 9

certification

where that

Bros. v. Schein, 416

_____
______

40

L.Ed.2d

215

(1943), it may be

procedure

available.

U.S. 386, 390-91, 94 S.Ct.

(1974)

(certification

cooperative judicial federalism").

burden the

is

enough to counsel

Lehman
______

1741, 1744,

"helps

build

We would be reluctant to

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

affects students

to

make

accordingly,

administration

of its

school

system,

and school administrators statewide

far-reaching

decision

without

advice.

and

for us

We,

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

Judicial Court

382 Mass.

the following

of Massachusetts

698, 700

question to

the Supreme

pursuant to its

(1981), and retain

Rule 1:03,

jurisdiction pending

its determination:

Do high school students in public schools

have the freedom under M.G.L. c. 71,

-7-

82

to

engage

in

expression

that

considered

vulgar,

non-school-sponsored
may

disruption or disorder?

reasonably
but

causes

be
no

-8-