Facts:

In 1983, five students at Lindbergh High School in Renton, Washington, wrote a four-page newspaper entitled Bad Astra. They did so at their own expense, off school property, and without the knowledge of school authorities. The content of Bad Astra included articles written by the five students and which were generally critical of school administration policies concerning student activities, student service card requirements and enforcement of student attendance. The newspaper also included a mock teacher evaluation poll, and poetry written by Stephen Crane, Edgar Lee Masters and Langston Hughes. The paper did not include any profanity, religious epithets or any material which could be considered obscene, defamatory or commercial. Students distributed approximately 350 copies of Bad Astra at a senior class barbecue; the president of the Lindbergh High School Parent Teacher Association, mother of one of the students, placed copies in school faculty and staff mailboxes....

The school principal censured the students for not submitting Bad Astra for predistribution review pursuant to existing school board policy. The principal placed letters of reprimand in the students' files, where they remain....

The policy in effect when the students were reprimanded ("old policy") was adopted by the Renton School District in 1977 and required prior approval by school officials of any material written by students enrolled in the school and which students wished to distribute on school premises. The material had to be free from "libel, slander, obscurity (sic), personal attacks or incitement to illegal action(s)," and free from "unauthorized solicitation." In addition, student authors were required to be identified on all materials. The school principal was authorized to direct the manner of distribution so as not to "interfere with or disrupt the normal educational process...."

After the students' unauthorized distribution of Bad Astra, but prior to this lawsuit, the school board decided to revise its predistribution review policy. The "new policy", which included an administrative review procedure, stated that prior approval was necessary for distribution of ten or more copies of written material. While the policy stated that distribution of materials would usually be allowed, the material in order to be approved had to be written by students currently enrolled in the school district, be free from advertisements for cigarettes, liquor, drugs or drug paraphernalia, and be distributed in a manner that would not materially and substantially interfere with the normal operation of the school.

In addition, under the new policy, principals were authorized to ban distribution if the expression was "inappropriate to the maturity level of the students" or was obscene, libelous, or invaded the privacy of others. Principals could also ban materials when there was evidence "which [would reasonably support] a judgment that significant or substantial disruption of the normal operation of the school" could result. The policy provided that such evidence could include expression criticizing school officials or advocating violation of school rules, or expression attacking or promoting discrimination against ethnic, religious, social or handicapped groups or females and males as a group...

There was no evidence that Bad Astra had interfered with the operation of the high school or impinged upon other students' rights. It was distributed at a school barbecue at which a rock band was playing and at which the students were already socializing. Defendants showed that a few teachers who had been mocked in the newspaper became emotionally upset, but the distribution caused no violence or physical damage, nor did it interfere with classes. Defendants admitted that if the students had submitted Bad Astra for prior review, the defendants would have allowed distribution without change. We thus are confronted with a unique and ironic situation in which a school has punished students for distribution of material which both sides acknowledge could not be suppressed under the first amendment....

The parents and the students filed this action in district court pursuant to 42 U.S.C. @ 1983 claiming that the predistribution review policy violated their right to freedom of speech guaranteed by the first and fourteenth amendments....

Distinguishing Hazelwood

In Hazelwood v. Kuhlmeier the Supreme Court reaffirmed the principles laid down in Tinker v. Des Moines Ind. Community Sch. Dist., 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), that the first amendment protects the right of high school students to communicate with each other, and further, that school officials may interfere with such communication only in narrowly defined circumstances. The Court in Kuhlmeier held that a policy of prior review and possible censorship of student writing is justified when it is a part of educators' reasonable exercise of authority over school-sponsored publications. The Court drew a clear distinction between whether "the First Amendment requires a school to tolerate particular student speech," the issue addressed in Tinker and "whether the First Amendment requires a school affirmatively to promote particular student speech," the issue addressed in Kuhlmeier. Kuhlmeier, 108 S. Ct. at 569...

This case, unlike Kuhlmeier, concerns a policy aimed at curtailing communications among students, communications which no one could associate with school sponsorship or endorsement. We therefore hold this policy does violate the first amendment...

Evidence of specific harm?

In support of its policy, the defendants offered evidence that a prior publication in a different school in the Renton School District had once harmed a student cheerleader because it contained a story concerning her alleged promiscuity. In addition, they offered evidence that other publications in another school district had caused some disruption of classes. However, only one other "underground" student publication had ever been distributed at Lindbergh High and that paper had created no disturbance. The defendants' expert admitted that he knew of no studies nor any statistics showing that school districts without a system of predistribution review and censorship of student-written communication experience educational disruption as a result of underground newspapers. He also acknowledged that the Seattle School District, the largest in the state, does not have any requirement of prior approval. There was evidence that the distribution of student-written materials in the Seattle School District has caused no problems....

The defendants themselves testified that in their view a predistribution censorship policy was necessary for the safe operation of the school, to avoid distractions, hurt feelings and career damage to the faculty, to further parental and community expectations and to avoid potential school liability. There was, however, no evidence that anyone familiar with Bad Astra confused it with any school-sponsored publication or believed its contents reflected the view of the school administration....

Undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk . . . and our history says that it is this sort of hazardous freedom -- this kind of openness -- that is the basis of our national strength and of the independence and vigor of those Americans who grow up and live in this relatively permissive, often The record in this case shows that this policy, with its censure of students for failing to present unobjectionable material for review, is the product of just such an "undifferentiated fear" of disruption. Indeed, this policy appears to be based upon far less justification than the action of the school principals in Tinker, which was directed at specific expression in an atmosphere of political turmoil. The school's action in this case is contrary to the principles laid down in Tinker.

School-Sponsored?

In this case the communications, like Bad Astra, which the school policy targets for review for censorship purposes are in no sense "school-sponsored." They are therefore not within the purview of the school's exercise of reasonable editorial control. The student distribution of non-school-sponsored material under the Supreme Court's decisions in Tinker and Kuhlmeier cannot be subjected to regulation on the basis of undifferentiated fears of possible disturbances or embarrassment to school officials, and no more than undifferentiated fear appears as a basis for regulation in this case. There is therefore no justification for this policy, which conditions all distribution of student writings on school premises upon prior school approval. Interstudent communication does not interfere with what the school teaches; it enriches the school environment for the students....

Renton's policy conditions distribution of all written materials on school premises upon prior school review for censorship purposes, and is directed at communications lacking any element of school support or endorsement. It is a blanket policy of unlimited scope and duration. For that reason, we do not need to decide under what more limited circumstances, if any, a school may impose a policy of predistribution review. We hold that Renton's policy is overbroad and violates the appellants' first amendment rights. Our holding is limited to school distribution policies which are content based, and does not pertain to regulations of time, place, and manner of distribution. Cf. Grayned v. Rockford, 408 U.S. 104, 115-16, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). Nor does our holding affect the ability of the school to punish students for unacceptable or disruptive conduct after it occurs. See Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986).

The judgment of the district court is reversed and the case remanded with instructions to enter an order enjoining further enforcement of the review policy and directing the school to purge the plaintiff-students' records of reprimands for violating the policy.