David G. Chandler Ethan R. Depweg v. McMinnville School District Thomas Chapman Mike Hyder Carole Whitehead

978 F.2d 524 61 USLW 2294 , 78 Ed. Law Rep. 282 David G. CHANDLER; Ethan R. Depweg, Plaintiffs-Appellants, v. McMINNVILLE SCHOOL DISTRICT; Thomas Chapman; Mike Hyder; Carole Whitehead, Defendants-Appellees. No. 91-35051. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 7, 1992. Decided Oct. 28, 1992. Elizabeth McKanna, Bennett & Durham, Portland, Or., for plaintiffs-appellants. Timothy W. Grabe, Portland, Or., for defendants-appellees. Appeal from the United States District Court for the District of Oregon. Before: WALLACE, Chief Judge, GOODWIN, Circuit Judge, and LEVI, * District Judge. WALLACE, Chief Judge: 1 Chandler and Depweg appeal from a decision of the district court dismissing their action for failure to state a claim. They seek declaratory and injunctive relief and compensatory damages for violation of their First Amendment rights under the United States and Oregon Constitutions. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 , 1343. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 . We reverse and remand. 2 * On February 8, 1990, the school teachers in McMinnville, Oregon commenced a…

Chandler and Depweg appeal from a decision of the district court dismissing their action for failure to state a claim. They seek declaratory and injunctive relief and compensatory damages for violation of their First Amendment rights under the United States and Oregon Constitutions. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 , 1343. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 . We reverse and remand.

I

On February 8, 1990, the school teachers in McMinnville, Oregon commenced a lawful strike. In response to the strike, the school district hired replacement teachers. Chandler and Depweg were students at McMinnville High School and their fathers were among the striking teachers. On February 9, 1990, Chandler and Depweg attended school wearing various buttons and stickers on their clothing. Two of the buttons displayed the slogans “I’m not listening scab” and “Do scabs bleed?” Chandler and Depweg distributed similar buttons to some of their classmates.

During a break in the morning classes, a temporary administrator saw Depweg aiming his camera in a hallway as if to take a photograph. The administrator asserted that Depweg had no…

While I concur in the result, I am unable to join the majority’s opinion. I write separately to express my belief that the majority discusses matters unnecessary to decide the case. The majority opinion erodes important First Amendment protections.

There is no dispute that the district court erred in granting defendant’s Rule 12(b)(6) *532 motion. Chandler and Depweg have stated a claim for which relief may be granted. To reach this decision, however, we did not have to reach out and create a comprehensive three-part categorical scheme for deciding all student speech cases. 1

Unfortunately, the majority oversimplifies the case law and too readily disregards important factual distinctions. I am most troubled by the majority’s conclusion that the deferential Fraser standard applies to all “vulgar, lewd, obscene, and plainly offensive speech,” even if such expression occurs outside the context of an official school program or event.

The majority may have lost sight of the facts in Fraser. There, the Court held that a student delivering a vulgar, lewd and plainly offensive speech at an official school assembly could be punished by school authorities without violating his First…