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During a free reading period, a fourth grade teacher spotted the words "Condoms: The New Diploma" on a student's book and seized it. The book was talk show host Rush Limbaugh's The Way Things Ought to Be and the chapter in question ridicules the practice of schools distributing condoms to students. According to this May 2, 1996 complaint, the student's father told school officials that the student had permission to read the book, but the school refused to return the book to the boy and will not permit it to be read in the classroom. The plaintiffs claim their First Amendment rights were violated. IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA LYNCHBURG DIVISION HARVEY THOMAS GARDNER, and JASON THOMAS GARDNER, an infant who sues by his father and next friend, Harvey Thomas Gardner, Plaintiffs, vs. BRUCE BAYS, in Official Capacity as Teacher at Montvale Elementary School; RONALD MASON, in Official Capacity as Principal of Montvale Elementary School; JOHN A. KENT, Ph.D. in Official Capacity as Superintendent of Schools for Bedford County; BEDFORD COUNTY SCHOOL BOARD; ELIZABETH A. BAILEY, in Official Capacity as Chairman of Bedford County School Board; SHIRLEY B. MCCABE, in Official Capacity as Vice Chairman of Bedford County School Board; [and the individual members of the Bedford County School Board.] Defendants. CIVIL ACTION NO: COMPLAINT The plaintiffs, Harvey Thomas Gardner and Jason Thomas Gardner, by Harvey Thomas Gardner, next friend, by counsel, file this complaint and say as follows: JURISDICTION AND VENUE 1. Original jurisdiction is conferred upon this Court by title 28 United States Code, section 1343(3) as this complaint sufficiently alleges state action subjecting the plaintiffs to actual deprivation of civil rights guaranteed by the First and Fourteenth Amendments to the Constitution of the United States and arising under the Civil Rights Act. 42 U.S.C. Section 1983. Jurisdiction of this Court is also invoked pursuant to federal question subject matter under 28 U.S.C. Section 1331. This court has jurisdiction over all claims arising from Virginia state and common law through supplemental jurisdiction pursuant to 28 U.S.C. Section 1367(a). All claims in this complaint arise from the same set of operative facts and thus form part of the same case or controversy under Article III of the United States Constitution. 2. Venue lies in the Western District of Virginia under 28 U.S.C. Section 1391, the causes of action set forth herein having arisen in the County of Bedford, Virginia, within this judicial district, and wherein the plaintiffs and all defendants reside. PARTIES 3. Plaintiff Harvey Thomas Gardner (hereinafter referred to as "Father") is, and at all times mentioned in this complaint was, a resident of Bedford County, Virginia and custodial parent of Plaintiff Jason Thomas Gardner (hereinafter referred to as "Student"), a student attending Montvale Elementary School. 4. Plaintiff Jason Thomas Gardner is, and at all times mentioned in this complaint was, a nine-year-old student attending Montvale Elementary School in Bedford County, presently assigned to defendant Bruce Bays' fourth grade free reading period. Plaintiff Jason Thomas Gardner is the son of plaintiff Harvey Thomas Gardner and brings this action through plaintiff Harvey Thomas Gardner. 5. Defendant Bruce Bays (hereinafter referred to as "Teacher") is, and at all times mentioned in this complaint was, a teacher at Montvale Elementary School and is sued in his official capacity as such teacher. As a teacher at Montvale Elementary School, defendant Bruce Bays is responsible for monitoring Student's Free Reading Period. 6. Defendant Ronald Mason (hereinafter referred to as "Principal") is, and at all times mentioned in this complaint was, the principal of Montvale Elementary School and is sued in his official capacity as such principal. As principal of Montvale Elementary School, defendant Ronald Mason is responsible for implementing policies set down by the Bedford County School Board as well as overseeing day to day administration of Montvale Elementary School. 7. Defendant John A. Kent, Ph.D. (hereinafter referred to as "Superintendent") is, and at all times mentioned in this complaint was, the superintendent of Schools for Bedford County and is sued in his official capacity as such superintendent. As superintendent, he oversees the Bedford school system, setting policy and procedures in schools including Montvale Elementary School. 8. Defendant Bedford County School Board is sued in its capacity as the governing body of the Bedford County school system and specifically Montvale Elementary School, establishing school policy and curriculum. 9. Defendant Elizabeth A. Bailey is, and at all times mentioned in this complaint was, chairman of the Bedford County School Board and is sued in her official capacity as such member. 10. Defendant Shirley B. McCabe is, and at all times mentioned in this complaint was, vice-chairman of the Bedford County School Board and is sued in her official capacity as such member. 11. Defendant Wesley P. Gordon, Jr. is, and at all times mentioned in this complaint was, a member of the Bedford County School Board and is sued in his official capacity as such member. 12. Defendant Billy R. Tuck is, and at all times mentioned in this complaint was, a member of the Bedford County School Board and is sued in his official capacity as such member. 13. Defendant Jackie T. Preston is, and at all times mentioned in this complaint was, a member of the Bedford County School Board and is sued in his official capacity as such member. 14. Defendant Donna D. Templeton is, and at all times mentioned in this complaint was, a member of the Bedford County School Board and is sued in her official capacity as such member. 15. Defendant Betty L. Earle is, and at all times mentioned in this complaint was, a member of the Bedford County School Board and is sued in her official capacity as such member. 16. Defendant Stanley W. Butler is, and at all times mentioned in this complaint was, a member of the Bedford County School Board and is sued in his official capacity as such member. 17. An actual and substantial controversy exists between plaintiffs and defendants. Plaintiffs contend that Student's First Amendment rights to free speech and to receive information were and continue to be deprived by defendants taking possession of the Book, refusing to return possession of the Book to Student, and by refusing to let Student read the Book during Free Reading Period. Plaintiffs further contend that Father's constitutional right to rear and educate his child is infringed by the same actions. Upon information and belief, defendants deny that their actions are unconstitutional and intend to prevent Student from re-gaining possession of the Book and from reading the Book during Free Reading Period. A declaration is necessary to resolve this conflict. COUNT ONE - FIRST AMENDMENT 18. In his class, defendant Teacher includes a fourth grade Free Reading Period in which students bring to school books of their own choosing, without teacher pre-approval, for private, silent reading. 19. By establishing a free reading period in which Student was given discretion in choosing reading material, defendants created and afforded Student a constitutional First Amendment right to receive information from the literary source of his choosing during the Free Reading Period. 20. On or about May 16, 1996, plaintiff Jason Thomas Gardner brought in the book, The Way Things Ought To Be (hereinafter referred to as the "Book"), written by Rush Limbaugh. Student read the Book in his Fourth Grade Free Reading Period and in accordance with the rules of Free Reading Period. 21. During the Free Reading Period on May 16, 1996, defendant Teacher seized the Book from Student, preventing Student from continuing to read the Book for the duration of the period. 22. Defendant Teacher inquired and was informed by the Student that he had parental permission to possess and read the Book. 23. Defendant Teacher then turned possession of the Book over to Principal. 24. Principal contacted Father and was informed that the Student had Father's permission to possess and read the Book. 25. Father wrote a letter delivered to Principal requesting that the Book be returned to his son. 26. Defendant Principal refused and continues to refuse to return possession of the Book to Student, from whom the Book was seized. 27. At no time during free reading period did Student show the book to any other student, communicate the Book's contents, or in any way create a disturbance. 28. No substantial government interest was served by terminating Student's possession of the Book. 29. The Book is a work of at least some value that would have no harmful effect on the Student or any other person attending Montvale Elementary School. 30. Access to and reading the Book promotes free thinking and public exchange of ideas, regardless of whether one agrees or disagrees with its content or author. Its purpose is at the very core of free speech constitutional protections. 31. Montvale Elementary School, defendants Teacher and Principal are presently in possession of the Book with no legitimate reason to retain possession. 32. Upon information and belief, Superintendent and the Bedford County School Board and its members are responsible for all Montvale Elementary School policy and procedure, and, through their acts and omissions allowed and continue to allow the alleged constitutional violations to occur and continue to occur. 33. Plaintiffs request judgment against defendants as set forth below. COUNT TWO - PARENTAL RIGHTS 34. Plaintiffs reallege Paragraphs 1 through 33 of this complaint as set forth in full. 35. Plaintiff Harvey Thomas Gardner possesses a constitutionally protected right to raise Student, his son. 36. Defendant's Free Reading Period allowed control over the choice of the Student's Free Reading Period reading material be left to the discretion of Father. Defendants had developed no curriculum associated with the Free Reading Period, nor were pursuing any educational goal beyond encouraging Student's interest in reading. 36. Defendants Teacher and Principal were each informed that Student enjoyed Father's permission to possess and read the Book. 37. Defendants originally provided the student the right to read the book of his choice during the Free Reading Period. Defendants thereafter decided the book chosen by the student did not promote Defendants' ideas and philosophies. 38. Defendants, by taking and retaining possession of Book, condemning the Book, and refusing to allow Student to read Book during Free Reading Period have infringed on the Father's constitutional right to raise his son. Defendants' actions further no educational or disciplinary purpose; as such, defendants, as agents of the state are constitutionally barred from contravening decisions made by a parent concerning his child. 39. Plaintiff Harvey Thomas Gardner requests judgment against defendants as set forth below. 40. Father and Student are entitled to permanent injunctive and preliminary injunctive relief because: a. Each will suffer irreparable harm if the injunction is not granted; b. Said harm outweighs possible adverse effects, if any, potentially suffered by the respective defendants; c. Plaintiffs, respectively, are likely to succeed on the merits of the case; d. The public interest lies with granting the relief requested. 41. The First Amendment protects the student's access to ideas and philosophies of all types and sources, regardless of the government's annoyance or support of such views. Its tenants are not to limit but to expand the student's exposure in a forum which allows examination, and acceptance or rejection. To seize the student's book, for the student and society, is to close the door of learning afforded by the First Amendment and deny the very goal of education. WHEREFORE, the plaintiffs respectfully request that this Court: 1. Enter judgment declaring defendants' refusal to return the Book to Student and refusal to allow Student to read the Book during Free Reading Period unconstitutional as a violation of the right of free speech and the right to receive information guaranteed by the First Amendment to the Constitution of the United States as applied to the Commonwealth of Virginia under the Fourteenth Amendment to the Constitution of the United States. 2. Enter judgment declaring unconstitutional defendants' refusal to honor Father's decision that the Book is appropriate reading material for Student's private reading in Free Reading Period, as such refusal interferes with Father's right to rear and educate his son as protected by the Fourteenth Amendment. 3. Plaintiffs request this Court issue preliminary and permanent injunctions requiring defendants to return possession of the Book to Student and to permit Student to read the Book during Free Reading Period. 4. Plaintiffs further request that the Court award the costs of this action including all reasonable attorney's fees as well as other and further relief as the Court considers just and proper. Respectfully submitted, HARVEY THOMAS GARDNER By: ___________________ Counsel JASON THOMAS GARDNER, an infant who sues by his father and next friend, Harvey Thomas Gardner By: ___________________ Counsel John E. Lichtenstein John P. Fishwick, Jr. Lichtenstein & Fishwick, P.L.C. Liberty Trust Building Suite 505 101 South Jefferson Street P.O. Box 601 Roanoke, Virginia 24004-0601 (540) 343-9711 Virginia State Bar #27048 Virginia State Bar #23285   |