February 15, 2005
By BRIAN ECKHOUSE
New Hampshire Union Leader Correspondent
http://www.theunionleader.com/articles_showa.html?article=50844

LONDONDERRY, New Hampshire --A federal judge yesterday rejected Londonderry High School senior Blake Douglass’ request for a preliminary injunction to compel school officials to publish his submitted yearbook photo, which features a broken-open shotgun slung over his shoulder.

Had the court ruled otherwise, the yearbook’s publication could have been delayed until Douglass’ suit against the district is resolved. The suit is still pending.

“Obviously, we’re very pleased,” Principal James Elefante said. “Our goal was to continue on and get the yearbook out for the kids.”

Douglass’ Concord-based attorney, Penny Dean, did not return several calls to her office and mobile phone last night. The Douglass family also did not return a call.

In federal court, Dean argued that the district’s refusal to publish the sports shooter’s chosen photograph in the senior portrait section of the yearbook amounts to unconstitutional viewpoint discrimination.

But in U.S. District Court in Concord yesterday, Judge Steven McAuliffe ultimately disagreed.

In his order, McAuliffe noted that the yearbook student editors were vested with “editorial discretion and they apparently made the controlling decision not to publish the photograph Blake originally submitted. Absent state action, the students’ decision not to publish Blake’s chosen photograph . . . cannot be said to have violated Blake’s First Amendment rights.”

After establishing that the students are private citizens -- and not state actors like the school administrators -- McAuliffe wrote, “In simple terms, the state has not, it seems, suppressed Blake’s speech; his fellow students have done so, for reasons they deemed appropriate in developing, editing, organizing, and publishing the yearbook. The First Amendment to the Constitution simply does not preclude such conduct by private citizens.”

Elefante, before announcing his decision to deny Douglass’ photo, consulted with the yearbook’s editorial staff and the yearbook’s two advisers. The district’s superintendent and school board later endorsed his decision.

In January, the school board passed a district-wide policy that bans all props in portraits, including musical instruments, pets, athletic equipment or vehicles, and prohibits students from wearing clothes with slogans or political statements.

McAuliffe said the yearbook policy to deny all props is not unconstitutional, noting that the new guideline “does not single out any particular viewpoint(s) for preferential treatment, nor does it single out any for unfavorable treatment.”

In his conclusion, McAuliffe wrote that “unless a genuine dispute of material fact exists regarding the student editors’ decision, or their status as private citizens, the (impending court) case would seem to be ripe for summary judgment disposition.”

Despite yesterday’s ruling, Londonderry attorney Russell F. Hilliard said Dean could appeal McAuliffe’s decision to the federal appellate court in Boston.

“But given his findings, there’s not much room,” Hilliard added. “He’s found that the plaintiff is not likely to succeed.”

Elefante predicted that Dean would indeed appeal McAuliffe’s decision.

“I’m sure there are still avenues that she can and will take,” he said. “I would hope that that’s not the case; I would hope that we can move beyond and get the yearbook done.”