572 F2d 141 Buckel v. E Prentice

572 F.2d 141

William L. BUCKEL et al., Plaintiffs-Appellants,
v.
Virginia E. PRENTICE et al., Defendants-Appellees.

No. 76-1838.

United States Court of Appeals,
Sixth Circuit.

Argued Dec. 5, 1977.
Decided Feb. 28, 1978.

Thomas R. McGuire, Columbus, Ohio, for plaintiffs-appellants.

Leonard J. Schwartz, Schwartz, Fisher, Spater, McNamara & Marshall, Columbus, Ohio, for amicus curiae A. C. L. U.

Craig Denmead, Williams, Deeg, Ketcham, Obetz & Denmead, Lawrence H. Braun, Columbus, Ohio, for defendants-appellees.

Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and NEESE, District Judge.*

PER CURIAM.

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1

This case is on appeal from a summary judgment rendered in favor of Columbus, Ohio school personnel and officials. Reference is made to the opinion of District Judge Robert M. Duncan, reported at 410 F.Supp. 1243 (S.D.Ohio 1976), for a recitation of pertinent facts.

2

This litigation grew out of an unsuccessful effort by appellants to distribute a circular to parents of children enrolled at Kingswood Elementary School in Columbus. Appellants wanted to distribute the circular by having school children take it home to their parents. The materials were written by a parent, appellant William L. Buckel. On April 3, 1974, Buckel presented copies of the circular to the principal of the school for the purpose of distribution to homes via students. The principal refused to allow the children to take the materials home to their parents. The Superintendent of the Columbus City Schools and the Board of Education upheld the decision of the principal.

3

Appellants filed this action under 42 U.S.C. § 1983, charging violation of their rights under the first and fourteenth amendments. It is contended that the school officials have created a public forum by permitting a wide variety of printed information to be sent home to parents via the school-age children, and that access to this public forum cannot be denied to appellants.

The district court found as follows:

4

(T)he distribution via students of information concerning coming theatrical events, home safety measures, and the like, is not indicative of the establishment of a forum for First Amendment purposes. Dissemination of such material is a logical and a proper extension of the educational function of schools in our society, and such dissemination does not of itself give rise to any right of access to student distribution by parents or other concerned citizens.410 F.Supp. at 1247.

5

The district court also stated, "If plaintiffs were seeking to take issue with the content of the materials heretofore permitted to be distributed, a different case might be presented." We agree with this distinction. Since the materials prepared by the plaintiffs were not offered in response to anything previously distributed from the school by way of student messengers, the plaintiffs were seeking to create a forum rather than to use one created by the defendants.

6

The court further held that the distribution of the materials described in its opinion, including an earlier circular prepared by appellant Buckel, "is insufficient to support a finding that defendants have created a public forum for the expression of ideas or the dissemination of information." 410 F.Supp. at 1247.

7

We conclude that the decision of the district court is fully supported by the record.

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8

Affirmed.

9

NEESE, District Judge, dissenting.

10

I dissent respectfully. Under my reading of the record, the decision of the District Judge is not supported fully as my brethren conclude.

*

Honorable Charles G. Neese, Judge, United States District Court for the Eastern District of Tennessee, sitting by designation