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Oxfeld v. New Jersey State Board of Education

Decided: September 16, 1975.

NANCY OXFELD, BY HER PARENT AND NATURAL GUARDIAN, EMIL OXFELD, PETITIONER-APPELLANT, AND JEFFREY GOODMAN, BY HIS PARENT AND NATURAL GUARDIAN, SAMUEL GOODMAN; DONALD STRAUSS, BY HIS PARENT AND NATURAL GUARDIAN, DR. F. STRAUSS; DANIEL LIPPMAN, BY HIS PARENT AND NATURAL GUARDIAN, DR. H. E. LIPPMAN; KENNETH SCHACHAT, BY HIS PARENT AND NATURAL GUARDIAN, HERBERT SCHACHAT; GINA NOVENDSTERN, BY HER PARENT AND NATURAL GUARDIAN, LEON NOVENDSTERN; JILL KESSLER, BY HER PARENT AND NATURAL GUARDIAN, EDWARD KESSLER; PETER SHAPIRO, BY HIS PARENT AND NATURAL GUARDIAN, DR. MYRON J. SHAPIRO, PETITIONERS,
v.
NEW JERSEY STATE BOARD OF EDUCATION AND BOARD OF EDUCATION OF SOUTH ORANGE-MAPLEWOOD, ESSEX COUNTY, RESPONDENTS-RESPONDENTS



For dismissal -- Chief Justice Hughes, Justices Mountain and Sullivan and Judge Conford. For reversal -- Justices Pashman and Clifford. Clifford, J. (dissenting). Mr. Justice Pashman authorizes me to indicate that he joins in this dissenting opinion.

Per Curiam

[68 NJ Page 302] These proceedings challenge the constitutionality of a school regulation governing student distribution of pamphlets and leaflets on school grounds. Out of deference to our dissenting colleagues we withheld announcement of our decision in the case, it being anticipated that some guidance to those who felt obliged to address the merits might be forthcoming from the United States Supreme Court. While this case was pending here, the Supreme Court heard argument in Bd. of School Comm'rs, Indianapolis v. Jacobs, 420 U.S. 128, 95 S. Ct. 848, 43 L. Ed. 2d 74 (1975), wherein students sought to enjoin enforcement of certain rules imposing restraints prior to distribution on school grounds of a student publication. The issue below had been whether the students' First and Fourteenth Amendment rights were violated by the regulations, and the students had prevailed on the merits in the District Court, Jacobs v. Bd. of School Comm'rs, Indianapolis, 349 F. Supp. 605 (S.D. Ind. 1972), and in the Court of Appeals, 490 F.2d 601 (7th Cir. 1973). However, the Supreme

Court did not reach the merits of the case, but rather determined that the matter had become moot.

This case presents substantially the same issues on federal and state constitutional grounds. It puts in question the validity of a literature-distribution regulation or "guidelines" promulgated at Columbia High School, within the jurisdiction of the Board of Education of South Orange-Maplewood. The Commissioner of Education approved the regulation and the State Board of Education affirmed that determination.

Petitioner Oxfeld appealed, and the Appellate Division affirmed unanimously in an unreported opinion which observed that "the present appeal may be moot, since it is questionable whether it asserts a justiciable claim for relief." Nevertheless the case was there disposed of on the merits by an affirmance for the reasons given by the tribunals which had heard the case below. Petitioner's appeal to this Court is based upon a substantial constitutional issue, R. 2:2-1(a)(1).

The case is indeed moot, as it was when decided in the Appellate Division. Neither the petitioner-appellant nor any of the other original named petitioners is any longer a student at Columbia High School. They are not now nor have they for some time been subject to the regulation's force. Further, we do not view this case as presenting any issue of great public importance compelling definitive resolution despite mootness,*fn1 see, e.g., Roe v. Wade, 410 U.S. 113, 93

S. Ct. 705, 35 L. Ed. 2d 147 (1973); John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576 (1971); Busik v. Levine, 63 N.J. 351, appeal dismissed, 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973); Dunellen Bd. of Educ. v. Dunellen Educ. Ass'n., 64 N.J. 17 (1973).

Under the circumstances we decline to review the decision of the educational authorities and the tribunal below. The appeal is:

Dismissed. No costs.

CLIFFORD, J. (dissenting). By declaring this case moot the Court effectively permits the survival of a regulation imposing a continuing, systematic prior restraint on student distribution of written materials on school grounds. That regulation is challenged as being violative of the First and Fourteenth Amendments to the United States Constitution and of Article I, para. 6, of the New Jersey Constitution.*fn1

The constitutional deprivation allegedly being visited upon students at Columbia High School strikes me as quite sufficient reason for deciding the case on its merits. And if that were not enough, we need only consider what we learned at oral argument -- that the Commissioner of Education approved the same regulation or "guidelines" under attack in this case as a model for other school districts, and that thereafter some 35 or 40 other districts adopted the

same regulation word for word. Consequently, under the Commissioner's imprimatur some three dozen school districts, involving thousands of students, are presently affected by the Court's decision. Hence we are dealing not with an issue of local impact but rather with one having far-reaching effects.

This Court does not labor under quite the same strictures as does the United States Supreme Court in determining whether or not to decide a case. While the Supreme Court is "limited by the case and controversy requirement of Art. III to adjudication of actual disputes between adverse parties," Richardson v. Ramirez, 418 U.S. 24, 36, 94 S. Ct. 2655, 2662, 41 L. Ed. 2d 551, 560 (1974), rev'g sub nom. Ramirez v. Brown, 9 Cal. 3d 199, 107 Cal. Rptr. 137, 507 P. 2d 1345 (Sup. Ct. 1973), as was the case in Bd. of School Comm'rs, Indianapolis v. Jacobs, 420 U.S. 128, 129, 95 S. Ct. 848, 850, 43 L. Ed. 2d 74, 78 (1975) ("a case or controversy no longer exists"), our State constitution imposes no such similar restraint on the exercise of our judicial power. Crescent Park Tenants Ass'n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 107 (1971). Rather, we look to "a sufficient stake and real adverseness" in the litigants, id., or to "issues of great public importance * * *." In re Geraghty, 68 N.J. 209, 212 (1975). See State v. Perricone, 37 N.J. 463, 469, cert. den., 371 U.S. 890, 83 S. Ct. 189, 9 L. Ed. 2d 124 (1962); John F. Kennedy Memorial Hosp. v. Heston, 58 N.J. 576, 579 (1971).

Inasmuch as all the parties refrained from raising the mootness issue in this Court despite the clear signal from the Appellate Division, I would assume that "all are desirous of having some judicial expression * * * for future guidance." Dunellen Bd. of Educ. v. Dunellen Educ. Ass'n, 64 N.J. 17, 22 (1973). Under the circumstances I conclude that there still exists an adversary proceeding, that a broad public interest against prior restraints is involved, that the circumstances which gave rise to this litigation are

likely to recur, and that the issue presented is one requiring statewide uniformity of resolution. See Ramirez v. Brown, supra, 9 Cal. 3d at 203, 107 Cal. Rptr. at 139, 507 P. 2d at 1347. Accordingly, I would decide the case on the merits.

I

This case originated with the filing of a petition with the Department of Education of the State of New Jersey on behalf of eight students at Columbia High School, which comes under the general direction and supervision of the Board of Education of South Orange-Maplewood (hereinafter local Board) and is the senior high school in its District. That petition alleged that on or about December 1, 1968, the local Board promulgated a regulation prohibiting students at the high school "from distributing pamphlets and leaflets in Columbia High School and on the grounds appurtenant thereto."

It further charged that on March 27, 1969, the student petitioners and others were suspended from classes by the principal of Columbia High School, Robert L. Amsden, for distributing leaflets and pamphlets contrary to the regulation.*fn2 Petitioners claimed they were told the students would be reinstated "only if they would promise not to again thus avail themselves of their said right" to distribute literature. Relief was sought not only for petitioners but also "in behalf of the entire class of Columbia High School students suspended on March Twenty-Seventh, 1969 * * * and, with regard to the chilling effect of the said regulation, on behalf of all students at Columbia High School."*fn3 Petitioners

sought (a) a declaration that the regulation was void, (b) revocation of the suspensions, and (c) a stay of enforcement of the regulation and of the suspensions until final disposition of the petition.

The local Board filed an answer denying that it promulgated the regulation but conceding that the regulation was adopted by the high school principal. While admitting that the student petitioners were suspended from classes, it denied that the distribution of leaflets and pamphlets was protected by any constitutional right of free speech. Separate defenses undertook to justify the regulation by reference to its content, to the circumstances at Columbia High School at the time it was promulgated, and to the obligation of the local Board to "care for as well as educate" children during school hours.

At a hearing conducted in the Department of Education it was revealed that the original regulation grew out of two incidents involving students distributing literature on school grounds. The first of these occurred on Election Day -- November 5, 1968 -- when a student distributed a handbill in the foyer of the main entrance to the school before classes started. The handbill, which students were free to accept or reject as they wished, criticized the presidential candidates and the way they were selected. Although the activity did not interfere with access to the school and no littering occurred, the student was summoned to the principal's office, informed that his activities were in violation of a New Jersey statute,*fn4 and suspended.

A few days later a second literature-distribution incident occurred when students passed out leaflets protesting the

first student's suspension and advocating freedom of speech. Again the distribution was made before school hours, and there were no acts of violence or disruption of normal school activities. Nevertheless, these students also were instructed to cease the distribution and to report to the principal's office.

It was less than one month later, on December 1, 1968, that a rule prohibiting all literature distribution on school grounds was promulgated by Mr. Amsden. The testimony of the principal and teachers made plain that it was the general atmosphere of hostility and violence which existed throughout American society at that time, as well as tension and polarization which they sensed in the student body itself, which had led to the literature-distribution ban, rather than any specific acts of violence connected with the distributions or any identifiable racial tensions within the student body.

The distribution incident which gave rise to this suit occurred on the morning of March 27, 1969, when a group of 40 to 50 students passed out leaflets inside and outside the entrances to the school, before the start of classes. These leaflets advocated support for an antiwar rally. There was no littering or violence but the students involved were suspended.

The Commissioner of Education, in his Decision, concluded that to the extent this original regulation constituted "an outright interdiction of any distribution of printed material," it was suppressive and therefore "an improper encroachment upon freedom of expression," and, as such, not sustainable. He went on, however, to hold that there was a "common sense middle ground between the extreme of total proscription and absolute liberty which represents a sound approach to the solution of this problem," and remanded the case to the local Board for the development of guidelines. These were to be cooperatively developed by pupils and faculty, so as not only to define the times and places when materials could be distributed without interfering with the work of the school, but also to include criteria by which the "appropriateness" of the material to be handed out could be adjudged. The Commissioner also held that the current regulation barring

leaflet distribution would be continued in effect until appropriate guidelines and criteria had been adopted and promulgated. He declined to consider the earlier suspensions because those suspended had been reinstated promptly with no damage to ...


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