The opinion of the court was delivered by: J. Leon Holmes United States District Judge
This is a civil rights case brought by students and parents of the Watson Chapel School District against the school district, the members of the school board, and two of the school administrators. The plaintiffs have sued the school board members and the two administrators in both their individual and official capacities. The defendants have filed a motion for partial summary judgment in which they argue that the school board members and administrators are entitled to qualified immunity on all of the claims against them in their individual capacities. For the reasons stated hereinafter, the motion for partial summary judgment is granted in part and denied in part.
In 1999 the Arkansas General Assembly adopted an act entitled The School Uniform Initiative Act, which amended § 6-18-102 of the Arkansas Code. The legislature made the following findings:
The General Assembly hereby finds and determines that the clothes and footwear worn by students in the public schools often preoccupy and distract students from their major purpose for being in school, that of becoming educated in math, science, English, history, and other subjects. The General Assembly further finds that student competition over clothes and footwear has, in several instances, led to violence and injuries during school hours; whereas, in those Arkansas schools that have adopted school uniforms, disparities in student socioeconomic levels are less obvious and disruptive incidents are less likely to occur.
ARK. CODE ANN. § 6-18-102(a) (1999). The remainder of the act provided procedures by which a school district could adopt a school uniform policy.*fn1
In the spring of 2006, the Watson Chapel School Board implemented a mandatory school uniform policy "to promote equal educational opportunity through economical access to appropriate school clothing and orderly, uniform apparel standards for students." The policy for the 2007-2008 school year is substantially the same but states that its purpose "is to promote a wholesome school climate, security, equal educational opportunity, and economical access to appropriate school clothing through orderly, uniform apparel standards for students." A copy of the policy for the 2006-2007 school year is attached to this opinion as Exhibit A. A copy of the policy for the 2007-2008 school year is attached to this opinion as Exhibit B.
A number of students and parents oppose the policy, the way it is enforced, or both. Some of those students and parents organized a protest of the school uniform policy and its enforcement. On September 30, 2006, they handed out black armbands to be worn to school in protest of the policy on October 6, 2006. When October 6 came, several students wore black armbands to the junior and senior high schools. The armbands were not worn over any part of the school uniform. The students who wore the armbands were disciplined, allegedly for violating the school uniform policy. However, the school uniform policy allows students to wear jewelry, including wristbands, so long as the jewelry is not worn over any part of the school uniform.
One student, Chris Lowry, distributed a flyer criticizing the school uniform policy. Lowry did not obtain approval of the principal before distributing the flyer, as required by a different policy of the Watson Chapel School District, and he was also disciplined for that violation of the school policy.
On October 10, 2006, the plaintiffs commenced this action by filing a one-count complaint in which the only claim for relief related to the discipline imposed for wearing black armbands on October 6, and they simultaneously moved for a preliminary injunction to stop all discipline relating to the black armbands. After an evidentiary hearing, the Court granted the motion and preliminarily enjoined the defendants from disciplining any student for wearing an armband substantially similar to the armband worn by the plaintiffs on October 6.
On February 22, 2007, the plaintiffs amended their complaint. The amended complaint alleges four claims for relief: that the defendants violated the freedom of expression guaranteed by the First and Fourteenth Amendments when they disciplined students who wore black armbands to school on October 6; that the school uniform policy on its face violates the freedom of expression guaranteed by the First and Fourteenth Amendments in that it is a prior restraint on student speech; that the manner in which the school uniform policy is enforced violates the right of the students to due process; and that the student literature policy, which prohibits distribution of printed matter without prior approval by the principal, violates the freedom of expression guaranteed by the First and Fourteenth Amendments. The amended complaint seeks declaratory relief, injunctive relief, nominal damages, punitive damages, and attorneys' fees.
The defendants have filed a motion for partial summary judgment in which they argue that they are qualifiedly immune from the claims against them in their individual capacities.
Government officials performing discretionary functions are immune from suit for civil damages in a § 1983 action unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed. 2d 396 (1982). In ruling on qualified immunity, the threshold question is whether, taken in the light most favorable to the party asserting the defense, the facts alleged establish the violation of a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed. 2d 272 (2001). "This must be the initial inquiry." Id. If a constitutional violation could be made out, the next step is to ask whether the right was clearly established. This inquiry must be undertaken on a very specific level in light of the particular context of the case. Id. A right is "clearly established" when the "contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. at 202 (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed. 2d 523 (1987)). Because qualified immunity is immunity from suit, not merely immunity from ...