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Newton v. Rockingham County Schools
The Constitution in
the Classroom
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IN THE UNITED STATES
DISTRICT COURT
FOR THE WESTERN DISTRICT OF
VIRGINIA
Harrisonburg Division
JEFFRY NEWTON, AMERICAN
LIBRARY ASSOCIATION, AMERICAN
BOOKSELLERS FOUNDATION FOR
FREE EXPRESSION, AMERICAN
SOCIETY OF JOURNALISTS AND
AUTHORS, ASSOCIATION OF
AMERICAN PUBLISHERS, INC., Civil No.
5:00CV0000 3
NATIONAL ASSOCIATION OF
COLLEGE STORES, JOSHUA DOVE,
by
his next friend and mother,
Kathy Hensley,
ERIN JOHNSON, by her next
friend and
father, Bruce Johnson, and
CHRIS
DALRYMPLE, by his next
friend and
mother, Mary Dalrymple, and
CECILIA
HENEBERRY,
Plaintiffs,
v.
C. JAMES SLYE in his official capacity as
Principal, Spotswood High School, JOHN H.
KIDD in his official capacity as
Superintendent, Rockingham County
Schools, ROCKINGHAM COUNTY
SCHOOL BOARD,
Defendants.
COMPLAINT
PRELIMINARY STATEMENT AND JURISDICTION
1. Jeffry
Newton, a high school English teacher, posted two pamphlets on the outside of
his classroom door. The pamphlets,
published annually by plaintiffs American Library Association, American
Booksellers Foundation for Free Expression, Association of American Publishers,
Inc., American Society of Journalists and Authors, and National Associations of
College Stores (the "Associations")[1]
in observance of Banned Books Week, lists books that have been banned or
challenged during the previous year.
Mr. Newton's principal directed him to remove the pamphlets, under
threat of termination. This suit seeks
a judicial determination that defendants' actions violated the rights of Mr.
Newton, the Spotswood High School students, and the Associations under the First
Amendment to the United States Constitution and Article I, § 12 of the
Virginia Constitution, and a preliminary and permanent injunction requiring
defendants to allow Mr. Newton to post the pamphlets.
2. Count I of
this action arises under the Constitution of the United States and 42 U.S. C. §
1983. This Court has jurisdiction pursuant to
Article III of the United States Constitution, 28 U. S. C. § § 1331,
and 42 U. S. C. § 1983. Declaratory relief is authorized by 28
U.S.C. §§ 2201
and 2202.
3. This Court
has supplemental jurisdiction over the state constitutional claim in Count II
pursuant to 28 U.S. C. § 1367
(a).
4. Venue is
proper in the Western District of Virginia pursuant to 28 U.S.C. § 1391
(b).
PARTIES
5. Plaintiff
Jeffry Newton is an English teacher at Spotswood High School in Rockingham
County, Virginia. He currently teaches
ninth and twelfth grade English classes.
Mr. Newton has been employed at Spotswood High School for nearly 9
years, and taught for six years prior to coming to Spotswood. He is active in professional organizations,
and was voted Virginia's Secondary Reading Teacher of the Year in 1997.
6. Plaintiff
American Library Association (ALA), founded in 1876, is a non-profit,
educational organization committed to the preservation of the American library
as a resource indispensable to the intellectual, cultural and educational
welfare of the nation. ALA's direct membership includes over 3000 libraries,
and almost 57,000 librarians and other individuals. It is one of the sponsors, authors and publishers of the Banned
Books Week pamphlets at issue here.
7. Plaintiff
American Booksellers Foundation for Free Expression (ABFFE) was organized as a
not-for-profit organization by the American Booksellers Association in 1990 to
inform and educate booksellers, other members of the book industry, and the
public about the dangers of censorship and to promote and protect the free
expression of ideas, particularly freedom in the choice of reading materials.
ABFFE is one of the sponsors, authors and publishers of the Banned Books Week
pamphlets at issue here.
8. Plaintiff
Association of American Publishers, Inc. (AAP) is the national association in
the United States of publishers of general books, textbooks, and educational
materials. Its approximately 250
members include most of the major commercial book publishers in the United
States and many smaller or non-profit publishers, including university presses
and scholarly associations. AAP's
members publish a substantial portion of the general educational, and religious
books produced in the United States and are active in all facets of the
electronic medium, including publishing a wide range of electronic products and
services. AAP is incorporated in New
York, and has its principal places of business in New York City and the
District of Columbia. AAP is one of the sponsors, authors and publishers of the
Banned Books Week pamphlets at issue here.
9. Plaintiff
American Society of Journalists and Authors (ASJA) is an organization of
independent nonfiction writers, with more than 1,000 members, and seeks to
protect its members' First
Amendment fights by advocating against censorship. The ASJA is one of the sponsors, authors and
publishers of the Banned Books Week pamphlets at issue here.
10. Plaintiff
National Association of College Stores (NACS) is a nonprofit trade association
serving college and university bookstores in the United States, Canada, and 15
other countries. NACS seeks to provide
education, information, research, and products and services to support the
business and service objectives of college stores to help them compete
effectively in a changing marketplace, and to serve as the national voice for
the college store industry. These
objectives include preserving its members' right to distribute books and other
materials free from government censorship. NACS is one of the sponsors, authors
and publishers of the Banned Books Week pamphlets at issue here.
11. Plaintiff
Erin Johnson is a tenth grade student at Spotswood High School. She is not currently in any of Mr. Newton's
classes. She sues by her next friend
and parent, Bruce Johnson.
12. Plaintiffs
Joshua Dove, Chris Dalrymple, and Cecilia Heneberry are twelfth grade students
at Spotswood High School who are in an advanced placement English class taught
by Mr. Newton. Plaintiffs Joshua Dove
and Chris Dalrymple sue by their next friends and parents, Kathy Hensley and
Mary Dalrymple, respectively. Plaintiff
Cecilia Heneberry, who is eighteen years old, sues on her own behalf
(Plaintiffs Johnson, Dove, Dalrymple, and Heneberry are referred to
collectively herein as the "student plaintiffs.")
13. Defendant C.
James Slye is the principal of Spotswood High School and Mr. Newton's immediate
supervisor. Defendant Slye is sued in his official capacity.
14. Defendant
John H. Kidd is the Superintendent of the Rockingham County Schools. The Superintendent is responsible for
promulgating and effectuating policies governing the day-to-day running of the
schools. Defendant Kidd is sued in his
official capacity.
15. Defendant
Rockingham County School Board is the public body which supervises and has
ultimate decision-making authority over the public schools of Rockingham
County, Virginia.
FACTUAL ALLEGATIONS
16. For as long as he has worked at
Spotswood High School, Jeffry Newton has posted various materials on the
outside of the door to his classroom.
These items have included cartoons, brochures, articles, and other items
of interest and value to high school students.
For example, in the fall of 1999, Mr. Newton posted articles about
Virginia's Standards of Learning, the role of education issues in the November
elections, the theory of evolution, the recent controversy about an exhibit at
the Brooklyn Museum, and the controversy over the "Harry Potter"
children's books. In posting these
items, Mr. Newton hopes and intends to educate, inform, entertain and provide
"food for thought" for his own students as well as other students
passing by the door.
17. For the past
five years, Mr. Newton has ordered reprints of the banned books pamphlets
published annually by the Associations in observance of Banned Books Week,
which takes place in September of each year.
The annual pamphlet consists of a front cover, a brief description of
the problem of censorship in public schools, a list of books challenged or
banned during the past year, and a back cover, which includes an order form for
T-shirts, posters, and similar items.
The pamphlet does not, however, contain an order form for any of the
listed books. The list of books includes the author and title of each book the
place at which the book was challenged or banned, and a brief description of
the reasons for the challenge or prohibition of the book. The purpose of the
pamphlets is to promote awareness about censorship. The 1997-98 version of the pamphlet (attached hereto and
incorporated herein as Exhibit 1) has the slogan
"Read a Banned Book" printed on the cover, and the 1998-99 version
(attached hereto and incorporated herein as Exhibit 2) has the slogan
"Free People Read Freely."
18. Among the
challenged or banned books listed in the 1997-98 pamphlet are Tom Clancy, The
Hunt for Red October; Arthur Miller, Death of a Salesman; Toni
Morrison, Beloved; John Steinbeck, Of Mice and Men; Mark Twain, The
Adventures of Tom Sawyer; and Richard Wright, Black Boy.
19. Each year,
Mr. Newton hangs the new banned books pamphlet on his door with the other items
posted there. He does so because he
feels the message about censorship contained in the pamphlets is important for
all students and teachers, not just those in his own classroom.
20. On August 12,
1998, Mr. Newton ordered 50 reprints of the 1997-98 banned books list from the
ALA. As he had in years past, he
purchased the pamphlets using a Rockingham County School Board purchase order,
which was reviewed and signed by defendant C. James Slye. The pamphlets arrived in the fall of 1998,
and Mr. Newton posted one of the pamphlets on the outside of his classroom
door.
21. On September
13, 1999, after the pamphlet had been displayed for about a year, Mr. Newton
received an e-mail that stated as follows:
"Mr. Newton, I went by your classroom [sic] last week and saw a
pamphlet on your door titled 'Read A Banned Book'. Could you explain why you had that on your door? Thank-you for your time, Mary Jane
Michael."
22. On September
14, 1999, Mr. Newton wrote an e-mail in response to Ms. Michael in which he
explained the purpose of the annual banned books list, provided the ALA mailing
address and website address, and offered to send Ms. Michael a copy of the list
posted on the door or the 1998-99 list, which he would be ordering soon. Before sending the e-mail, Mr. Newton showed
a draft of it to the principal, C. James Slye, who agreed that it was an
appropriate response.
23. On September
15, 1999, Ms. Michael responded by e-mail:
"Thank you for your response. Please send me the latest list of
banned books. It would be very helpful to me." Mr. Newton responded on the same day, "I'll be happy to,
Mary Jane. I haven't yet ordered them, so it will be about a month before
we get the 1998-99 pamphlet.
Thanks." Ms. Michael
responded on September 16, 1999:
"Thank-you so much! Just
curious. . . why would you want a child to read a book that contains
objectionable material?" Mr.
Newton took several days to draft a reply ,to this e-mail.
24. On or about
September 15, 1999, Mr. Newton ordered 50 reprints of the 1998-99 banned books
pamphlet, this time using his personal credit card over the telephone.
25. Upon
information and belief, Ms. Michael contacted school board chair Dan Breeden to
complain about the banned books list. Mr. Breeden came to Spotswood High School
after school hours on September 15, 1999, and had a school employee make a copy
of the banned books pamphlet hanging on Mr. Newton's door. Upon information and belief, Mr. Breeden
then contacted superintendent John Kidd, who, in turn, contacted principal C.
James Slye. On September 20, 1999, Mr.
Newton received a note in his school mailbox, asking him to see Mr. Slye about
the "banned books opportunity."
26. After
receiving the note from Mr. Slye, Mr. Newton sent an e-mail to Ms. Michael in
which he attempted to clarify his position regarding the banned books
list. He stated that he had helped to
write, and fully supported, the Rockingham County Public Schools policy
statement providing, "No child shall be forced to read a book she finds
objectionable." Mr. Newton's
e-mail concluded, "Thankfully, here in Rockingham County, we have a
literature program that respects the rights of all parents, i.e. those who do
find these books objectionable can rest assured their children will never be
required to read them, while those who see instead their literary value can be
assured their children will have access to them. That is the First
Amendment principle that the Center on Intellectual Freedom, the American
Library Association, and the Center for the Book of the Library of Congress
seek to sustain through their annual publication of the 'Banned Books
List."' The entire correspondence between
Mr. Newton and Ms. Michael is attached hereto as Exhibit 3 and incorporated
herein by reference.
27. At some point
prior to September 29, 1999, Mr. Newton received the 1998-99 banned books
pamphlets that he had ordered, and posted one of them on his classroom door.
28. On September 22, 1999, Mr. Newton met briefly with
Mr. Slye. Mr. Slye said that one of the
titles on the 1997-98 banned books list, The Joy of Gay Sex, was
unacceptable, but he did not say what Mr. Newton should do about it.
29. On September
29, 1999 Mr. Slye called Mr. Newton into his office for a meeting. Mr. Slye said that he had been
"hammered" about the pamphlet, and directed Mr. Newton to remove it
from his door. He gave Mr. Newton two
days to decide what to do.
30. That evening,
Mr. Newton sent an e-mail to Mr. Slye, asking him to put in writing what he
must do, and the consequences for not doing it.
31. On September
30, 1999, Mr. Slye hand-delivered a letter to Mr. Newton which stated, among
other things,
The reason I feel so
strongly about this is because of several titles included in the pamphlet such
as:
• Understanding Sexual
Identity: A Book for Gay Teens & Their Friends
• Women on Top; How
Real Life Has Changed Women's Fantasies
• The Joy of Gay Sex
The letter concluded:
As a result of our
conference, I direct you to remove the Banned Books pamphlets, which includes
the new one for 1998-1999. They are not
to be posted again.
This directive is to be
followed immediately upon receipt or I will have no alternative but to report
you to the Superintendent for failure to follow a directive from the principal.
The letter is attached
hereto as Exhibit 4 and incorporated herein by reference.
32. Mr. Newton reasonably interpreted the letter
from Mr. Slye to mean that his employment would be terminated if he did not
remove the banned books pamphlets from the classroom door. Mr. Newton therefore
removed the pamphlets.
33. The Rockingham County Public Schools policy
on Controversial, Sensitive, and Challenged Materials provides, in part:
A. Procedure - A person
who questions the use of any specific instructional material in a school should
be given an explanation of the following procedure for challenged materials.
1. The complainant
should be invited to have a conference with principal and the professional
person on the staff responsible for the use of the challenged material to see
if the matter can be resolved to the satisfaction of all parties.
The policy goes on to articulate
further procedures and levels of review if the matter cannot be resolved by the
conference with the principal. The
final level of review is the School Board, which is to "make the final
decision by instructing the principal to retain, modify, or withdraw the
challenged materials." See Exhibit
5, attached hereto and incorporated herein by reference.
34. During his discussions with Mr. Slye on this matter,
Mr. Newton requested that the procedures set forth in the Controversial,
Sensitive, and Challenged Materials policy be followed. Mr. Slye refused to follow these procedures,
giving as his reason that the banned books pamphlets were not
"instructional material" pursuant to the policy. Defendants Slye and Kidd also told at least
one member of the press that the procedures were not followed because the
pamphlets were not instructional material.
35. At the September 29, 1999 meeting and thereafter,
Mr. Slye told Mr. Newton that, although he would not be permitted to post the
banned books pamphlets on his door, he could use the pamphlets in class for the
purpose of classroom instruction.
36. Until Mr. Newton was directed to take down the
banned books pamphlets, it had 'been the policy and/or practice of defendants
to allow teachers to post things on the doors of their classroom. Other than the banned books pamphlets, Mr.
Newton has never been directed to remove anything from his classroom door,
although he has posted material there for as long as he has worked at Spotswood
High School. Plaintiff knows of no
other instance in which a teacher in the Rockingham County School System has
been directed to remove any materials from his or her classroom door.
37. The issue of censorship in public schools and
libraries is a matter of public concern.
38. During the five years that Mr. Newton has posted the
banned books pamphlets on his classroom door, the pamphlets have never caused
any disruption to operation of the school or the educational process. To the best of plaintiffs' knowledge, the
banned books pamphlets have never caused any student to procure or read a book
against the wishes of his or her parents.
No parent had ever complained about the pamphlets until Ms. Michael's
e-mails to Mr. Newton in September.
Nearly all the students at Spotswood High School are between the ages of
fourteen and eighteen.
39. At least 23
letters and e-mail messages in support of Mr. Newton's right to post the banned
books pamphlets were sent to defendant C. James Slye and/or the other
defendants. The authors of these letters
included parents of students at Spotswood High School and other schools in
Rockingham County, Spotswood High School teachers, university professors, and a
representative of the National Council of Teachers of English.
40. The American
Civil Liberties Union of Virginia (ACLU of Virginia) sent a letter to the
Rockingham County School Board on October 28, 1999 asking for an investigation
of the removal of the pamphlets. The
ACLU of Virginia did not receive a response to this letter.
41. A group of professors
at James Madison University (JMU) drafted a petition in support of the posting
of the banned books pamphlets, which was read aloud at the October 14, 1999
School Board meeting by Professor Teresa Murden. Professor Murden stated that
the petition was still being circulated for signatures and would be presented
to the School Board at a future meeting.
Another JMU professor attended the November 11, 1999 school board
meeting, but were denied the opportunity to comment or ask questions regarding
the removal of the banned books pamphlets.
42. On November
30, 1999, the ACLU of Virginia, on behalf of Mr. Newton, sent a letter to all
the defendants, stating that the directive ordering Mr. Newton to remove the
banned books pamphlets violated his rights and the rights of Spotswood High
School students under the First
Amendment to the United States Constitution. The letter requested that the defendants immediately allow Mr.
Newton to post the banned books pamphlets, or, in the alternative, that the
defendants follow the procedures set forth in the Controversial, Sensitive, and
Challenged Materials policy. The letter
further requested the defendants to respond by December 15, 1999.
43. On December
16, 1999, in response to a request from defendants' attorney, the ACLU of
Virginia sent a letter stating the facts and legal basis for this case. The letter requested that the principals of
all Rockingham County schools be directed to preserve the state of all
classroom doors as they were on September 30, 1999. The letter also reiterated Mr. Newton's desire to avoid
litigation by following the Controversial, Sensitive, and Challenged Materials
Policy, and requested a written explanation for why this had not been
done. To date, the ACLU of Virginia has
not received a response to this letter.
CLAIMS FOR RELIEF
COUNT 1
44. Defendants'
actions in requiring Mr. Newton to remove the banned books pamphlets from his
classroom door violated Mr. Newton's and the Associations' freedom of speech
under the First
Amendment to the United States Constitution as applied to the states by the
Fourteenth Amendment to the United States Constitution.
45. Defendants'
actions in requiring Mr. Newton to remove the banned books pamphlets from his
classroom door violated the student plaintiffs' right to receive information
and ideas under the First
Amendment to the United States Constitution as applied to the states by the
Fourteenth Amendment to the United States Constitution.
COUNT II
46. Defendants'
actions in requiring Mr. Newton to remove the banned books pamphlets from his
classroom door violated Mr. Newton's and the Associations' freedom of speech
under Article I, § 12
of the Virginia Constitution.
47. Defendants'
actions in requiring Mr. Newton to remove the banned books pamphlets from his
classroom door violated the student plaintiffs' right to receive information
and ideas under Article I,
§ 12 of the Virginia Constitution.
PRAYER FOR RELIEF
Plaintiffs respectfully
request that this Court grant the following relief:
A. A declaratory
judgment finding that defendants' actions in requiring Mr. Newton to remove the
banned books pamphlets from his classroom door violated the First
Amendment of the United States Constitution and Article I, § 12 of the
Virginia Constitution;
B. A
preliminary and permanent injunction requiring defendants to allow Mr. Newton
to post the banned books pamphlets on his classroom door and restraining them
from any further interference with his First
Amendment right to post material on the door;
C. Plaintiffs
costs and attorney's fees, pursuant to 42 U.S.C. §
1988; and
D. Such other
orders and further relief as this Court deems just and equitable.
Dated: January 12, 2000
Respectfully Submitted,
REBECCA K. GLENBERG
Virginia State Bar No. 44099
American Civil Liberties
Union of Virginia
Foundation, Inc.
6 North 6th Street, Suite
400
Richmond, Virginia 23219
(804) 644-8080
MICHAEL A. BAMBERGER
Sonnenschein Nath &
Rosenthal
1221 Avenue of the Americas
New York, New York 10020‑1089
(212) 768-6756
Attorneys for Plaintiffs
[1] One additional sponsor of the pamphlet, the American Booksellers Association, is not a plaintiff herein.