ZUCKER v. PANITZ No. 68 Civ. 1339.
299 F.Supp. 102 (1969)
Nathan ZUCKER, on behalf of Laura Zucker, an infant, and Jack Orentzel, on behalf of Richard Orentzel, an infant, and on behalf of all others similarly situated, Plaintiffs, v. Adolph PANITZ, as Principal of New Rochelle High School; James K. Bishop, as President of the Board of Education of New Rochelle, and George C. Clark, as Superintendent of Schools of New Rochelle, Defendants.
United States District Court S. D. New York.
May 15, 1969.
Kramer & Labaton, New York City, and Alan H. Levine, of the New York Civil Liberties Union, for plaintiffs; Edward Labaton and Alan H. Levine, New York City, of counsel.
F. Harry Otto, New Rochelle, N. Y., for defendants; John I. Bosco, New Rochelle, N. Y., of counsel.
METZNER, District Judge:
This action concerns the right of high school students to publish a paid advertisement opposing the war in Vietnam in their school newspaper. The action is brought under 42 U.S.C. §§ 1981 and 1983 for declaratory judgment and injunctive relief prohibiting violation of plaintiffs' freedom of speech by the principal of New Rochelle High School, the president of the New Rochelle Board of Education, and the New Rochelle Superintendent of Schools.
Plaintiffs move in the alternative for judgment on the pleadings, summary judgment granting an injunction enjoining interference with the right of students in the high school to place advertisements in the school newspaper or otherwise to express their views on public issues, an injunction pendente lite restraining interference with publication of the proposed advertisement, or such other relief as the court deems proper.
A group of New Rochelle High School students, led by plaintiff Richard Orentzel,
The gravamen of the dispute concerns the function and content of the school newspaper. Plaintiffs allege that the purpose of the Huguenot Herald is inter alia, "to provide a forum for the dissemination of ideas and information by and to the students of New Rochelle High School." Therefore, prohibition of the advertisement constitutes a constitutionally proscribed abridgement of their freedom of speech.
The defendants take issue with this characterization of the newspaper. They advance the theory that the publication "is not a newspaper in the usual sense" but is a "beneficial educational device" developed as part of the curriculum and intended to inure primarily to the benefit of those who compile, edit and publish it.
In sum, defendants' main factual argument is that the war is not a school-related activity, and therefore not qualified for news, editorial and advertising treatment. They have submitted issues of the newspaper from September 1968 to April 1969 to illustrate school-related subjects and the absence of other than purely commercial advertising.
If the Huguenot Herald's contents were truly as flaccid as the defendants' argument implies, it would indeed be a sterile publication. Furthermore, its function as an educational device surely could not be served if such were the content of the paper. However, it is clear that the newspaper is more than a mere activity time and place sheet. The factual core of defendants' argument falls with a perusal of the newspapers submitted to the court. They illustrate that the newspaper is being used as a communications media regarding controversial topics and that the teaching of journalism includes dissemination of such ideas. Such a school paper is truly an educational device.
For instance, on October 18, 1968, an article on draft board procedures, including discussion of the basis for graduate deferments as well as problems of initial registration appeared, as well as an article concerning a poll of high school students on national political candidates and the war. On January 31, 1969, the paper included an item that
The presence of articles concerning the draft and student opinion of United States participation in the war shows that the war is considered to be a school-related subject. This being the case, there is no logical reason to permit news stories on the subject and preclude student advertising.
Defendants further argue that since no advertising on political matters is permitted, the plaintiffs have no cause for discontent. It is undisputed that no such advertising has been permitted, but this is not dispositive. In Wirta v. Alameda-Contra Costa Transit District, 68 Cal.2d 51, 64 Cal.Rptr. 430, 434 P.2d 982 (1967) (en banc) (rehearing denied 1968), the court held that where motor coaches were a forum for commercial advertising, refusal to accept a proposed peace message violated the First Amendment guarantee of free speech.
Cf. Danskin v. San Diego Unified School District, 28 Cal.2d 536, 171 P.2d 885 (1946).
Defendants would have the court find that the school's action is protected because plaintiffs have no right of access to the school newspaper. They argue that the recent Supreme Court case of Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (Feb. 24, 1969), held only that students have the same rights inside the schoolyard that they have as citizens. Therefore, since citizens as yet have no right of access to the private press, plaintiffs are entitled to no greater privilege.
In Tinker, the plaintiffs were suspended from school for wearing black armbands to protest the war in Vietnam. The Court held that the wearing of armbands was closely akin to pure speech and that First Amendment rights, "applied in light of the special characteristics
Defendants have told the court that the Huguenot Herald is not a newspaper in the usual sense, but is part of the curriculum and an educational device. However, it is inconsistent for them to also espouse the position that the school's action is protected because there is no general right of access to the private press.
We have found, from review of its contents, that within the context of the school and educational environment, it is a forum for the dissemination of ideas. Our problem then, as in Tinker, "lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities." Id. at 507, 89 S.Ct. at 737. Here, the school paper appears to have been open to free expression of ideas in the news and editorial columns as well as in letters to the editor. It is patently unfair in light of the free speech doctrine to close to the students the forum which they deem effective to present their ideas.
Tinker also disposes of defendants contention that cases involving advertising in public facilities are inapposite because a school and a school newspaper are not public facilities in the same sense as buses and terminals (see Writa, Kissinger and Wolin, cited herein)—that is, they invite only a portion of the public.
This lawsuit arises at a time when many in the educational community oppose the tactics of the young in securing a political voice. It would be both incongruous and dangerous for this court to hold that students who wish to express their views on matters intimately related to them, through traditionally accepted nondisruptive modes of communication, may be precluded from doing so by that same adult community.
Plaintiffs' motion for summary judgment is granted. Settle order.
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