School of Journalism and Communication
The facts of the case are detailed in the Court of Appeals opinion below.
127 Ore. App. 273,873 P.2d 456, 1994 Ore. App. LEXIS 593 (Or.Ap. 1994)
FACTS: Plaintiffs Barcik, Jansen, Kasten, Edwards, Lowery, Frost and Olson were seniors at Tigard High School when the district enacted the challenged regulations on January 30, 1992. Plaintiff Kostur was a student at the district middle school. Before the regulations were enacted, the following events took place. On December 4, 1991, Barcik circulated among the high school students a flyer that solicited articles for publication in "Low-Spots," a non-school-sponsored ("underground") publication. The next morning, he was summoned to the vice principal's office and told that distribution of the flyer violated school policy because it had not been cleared with the student activities director. The vice principal issued a formal warning to Barcik and informed him that he had three options with regard to the proposed underground publication: (1) not publish it; (2) submit it to the school administration for approval before distribution; or (3) publish it without using any of the school's resources and distribute it off school grounds.
On January 13, 1992, Barcik and Jansen circulated "Low-Spots" to students on school property without the administration's prior approval. Defendant Kubiaczyk, the principal at the high school, informed Barcik and Jansen that "Low-Spots" was unacceptable, because it contained profanity and had not been submitted to the administration for prior approval. Imposition of disciplinary measures was suspended pending the circuit court's decision in this matter.*
______________________
* The court held that the administration's efforts to censor "Low-Spots" before it was published constituted an impermissible "prior restraint" on Jansen's and Barcik's constitutional right of free expression. The court ordered that their disciplinary records be expunged of all reference to the "Low-Spots" controversy. Neither party appeals that ruling.
_______________________
On January 23, a different underground publication, "The Spots On My Dog," was circulated on the school grounds. None of the plaintiffs was involved in the publication or distribution of that publication, which contained the following language:
"Rather than say 'fuck the principal,' try saying 'fuck the system.' Mr. Kubiachyczk (whatever) may or may not be the greatest principal on the face of the earth, but he's the only one we've got. So if you must do something to him, don't insult him, kill him. Put that sorry excuse for an authority figure out of his misery in a shallow grave of term papers and vomit. "In America, talk is cheap, don't say something about it, do something about it."
______________________________
"Hi-Spots" is the official newspaper of Tigard High School. The editorial board of "Hi-Spots" consisted of Kasten, Edwards, Lowery and Frost. After the distribution of "Low-Spots," but before the appearance of "The Spots On My Dog," the "Hi-Spots" editorial board decided to write an editorial on underground student works. Frost drafted the piece, entitled "Low-Spots Says a Lot About Freedom," in which he said, inter alia, that the "Hi-Spots" staff "appreciate[d] the underground paper's special opinion and angle." Kubiaczyk was concerned that the "Hi-Spots" editorial would be perceived as a blanket endorsement of all underground publications, including "The Spots On My Dog." He contacted defendant Joki, the district superintendent, and told him of the proposed "Hi-Spots" editorial and of the content of "The Spots On My Dog." Joki sent defendant Davidian, the assistant superintendent, to the high school to investigate the matter. Davidian reviewed a copy of "The Spots On My Dog" and took a copy of the "Hi-Spots" editorial to the district's attorneys. Meanwhile, publication of the editorial was put on hold. During the evening of January 23, the School Board was shown copies of "Low-Spots," "The Spots On My Dog," and the "Hi-Spots" editorial.
On January 24, Kubiaczyk met with the "Hi-Spots" editorial board. He told them that the School Board had unanimously requested that the editorial be revised, and he informed them that the piece could not be printed as written. Kasten and Edwards called the printer and instructed it to delete the editorial and to substitute in red ink, "CENSORED BY: MARK KUBIACZYK, RUSS JOKI, AL DAVIDIAN, TIGARD-TUALATIN SCHOOL BOARD."* The issue ran without the editorial.
----------------------------------------------
*The court found that the editorial neither threatened to materially disrupt school activities nor represented an imminent danger of violence. Accordingly, it held that Kasten's, Edward's, Lowery's and Frost's rights of free speech had been transgressed. Neither party challenges that ruling on appeal.
----------------------------------------------
SCHOOL'S PUBLICATION POLICY:
"School publications, productions or displays which are or may be fairly
characterized as school-sponsored or as part of the District curriculum, whether or not they occur in a traditional classroom setting, are subject to review and evaluation by school administrators. The final decision about the suitability of any material in question shall rest with the principal, after review and consultation with the teacher/advisor and student representative(s) prior to publication, production or display....
"Such publications, productions or displays shall be reviewed in light of the District's legitimate pedagogical concerns which include, but are not limited to:
"whether the material is or may be defamatory or libelous;
"whether the material is inappropriate for the age, grade level, and/or maturity of the audience;
"whether the material is poorly written, inadequately researched, or biased or prejudiced;
"whether the material is or may be otherwise disruptive to the school environment. For example, such disruption may occur if the material uses, advocates or condones the use of vulgar or profane language, or advocates or condones the commission of unlawful acts, or advocates violation of school rules, Board policy, or the Student Rights and Responsibilities Handbook;
"whether there is an opportunity for a named individual or individuals to make a response; or
"whether specific individuals may be identified even though the material does not use or give names.
"The decision may be appealed to the superintendent for review and final decision."
The administrative regulations for unofficial student publications provide:
"All nonschool-sponsored ('unofficial') publications which students want to distribute on District property or at District activities are subject to prior review, as described below. Publications will be reviewed to determine whether:
"1. the material is or may be defamatory or libelous;
"2. the material does or may reasonably be perceived to threaten or intimidate any individual or group;
"3. the material is obscene as to minors;
"4. the material contains vulgar and offensive language;
"5. the material advocates breaking school rules or District rules, or advocates unlawful acts; or
"6. the material will or reasonably could be anticipated to result in a
substantial disruption of or a material interference with school work, school activities, discipline, the educational environment, or the rights of others within the school."
Violations of the policy on unofficial student publications
"may result in discipline pursuant to District policy and any applicable provisions of the Student Rights and Responsibilities Handbook."
.....
On January 30, 1992, the district adopted the challenged regulations. From then until the end of the school year, the school administration, acting pursuant to the regulations, reviewed each edition of "Hi-Spots" before publication.
--------------------------------------------------------
THE ISSUE OF JUSTICIABILITY
The parties stipulated in circuit court that this case presents a justiciable controversy. Consequently, neither party raises the issue of justiciability on appeal. However, it is fundamental that a court "cannot exercise jurisdiction over a nonjusticiable controversy because in the absence of constitutional authority, the court cannot render advisory opinions." Brown v. Oregon State Bar, 293 Or 446, 449, 648 P2d 1289 (1982). In sum, on the date of the circuit court's judgment, the plaintiffs who are members of the graduating class of 1992 were no longer students in the Tigard-Tualatin School District and, consequently, their request for relief against enforcement of the regulations was moot. Further, because they could not be subject to the regulations after they graduated, they lack standing to challenge future application of the regulations. Accordingly, the circuit court should have dismissed their claim after their graduation.