On appeal from the Superior Court, Chancery Division, Gloucester County.
D'Annunzio and Keefe, JJ. The opinion of the court was delivered by Keefe, J.A.D. D'Annunzio, J.A.D., Dissenting.
The issue to be decided in this appeal is whether defendants' action in censoring, prior to publication, two movie reviews written by plaintiff Brien Desilets for his junior high school newspaper, violated plaintiff's federal or state constitutional rights.
Plaintiff Patricia Desilets, on behalf of and as natural guardian for her son, Brien Desilets,*fn1 filed a complaint against defendants Clearview Regional Board of Education (Board), Michael Toscano, superintendent, and Charles Bishop, principal, alleging that their actions in censoring two articles written by plaintiff for the school
newspaper violated plaintiff's state and federal constitutional rights.*fn2
Defendants defended the censorship, claiming the school paper was part of the regular educational curriculum over which the Board had the authority to exercise a great deal of control, and that defendants' actions were reasonably related to a legitimate pedagogical concern.
After a plenary trial, the trial Judge issued an oral opinion in which he concluded that plaintiff's State, but not his federal, constitutional rights had been violated. Defendants now appeal that decision.
Plaintiff began attending Clearview Junior High School in September 1987 when he entered the seventh grade. In November of that year, he became involved in the school newspaper, known as the Pioneer Press. Any student could become a staff member of the paper, which covered such topics as sports, entertainment and news. The staff met after school, and had no set number of issues which it published. There were no grades or course credit given for participation on the paper. Students usually volunteered to type the articles themselves, and the student editors would select pictures to go along with the articles. The paper was distributed to all the students at the junior high school, as well as to all staff. Each issue would be reviewed by a faculty advisor assigned to the paper. The newspaper was totally funded by the Board; that is, the Board paid the faculty advisor's salary and paid for all materials and supplies.
In January 1989, when plaintiff was in the eighth grade, he submitted the following two movie reviews to the faculty advisor for publication in the Pioneer Press:
Mississippi Burning Rated R (Starring William Dafoe and Gene Hackman) Mississippi Burning is about the murder of three civil rights activists in Philadelphia, Mississippi in 1964. Two F.B.I. agents, Hackman and Dafoe, are sent to Mississippi to investigate the disappearance of the three men. When they arrive, they find themselves unwanted by the people and the local police. None of the blacks will talk to the men, because they are harassed by the KKK (Ku Klux Klan) for doing so. In the end the bodies are found, the police and Klan members are jailed and the F.B.I. leaves. The movie is worth the price of your ticket, but if you're looking for facts they're not here.
Rain Man Rated R (Starring Tom Cruise, Dustin Hoffman) In this film, Charlie Babbit (Tom Cruise) finds that he has a brother Raymond (Dustin Hoffman) that has inherited three million dollars in their father's will. However, Raymond is autistic and does not understand the concept of money. Charlie then kidnaps "Rain Man" from a mental institution, and the two leave for a week long drive across the country. On this ride the two become great friends and experience many adventures. Dustin Hoffman did an excellent job of playing an autistic savant. The movie is hilariously funny and I think that everyone should see it.
The faculty advisor had no objection to the articles and never told plaintiff that they violated school guidelines. When the February, 1989 issue of the Pioneer Press was distributed, plaintiff discovered that his movie reviews had not been published. The faculty advisor told plaintiff that defendant Bishop, the school principal, had taken the articles out because the movies were R-rated. (An R-rated film requires a child under 17 seeking admission to the theater to be accompanied by a parent or guardian). Defendant Bishop told plaintiff that he had a responsibility to the community, and that the reviews would prompt students under age 17 to see these movies. Defendant Toscano also told plaintiff that he did not think the parents of the students would like to see these articles, and that he would not let R-rated films be reviewed in a school newspaper while he was superintendent, "unless he was persuaded by good points of why they should be."
Plaintiff testified that he had seen both movies with his father and brother, and that one of his teachers had recommended the movie Mississippi Burning because it dealt with the subject of civil rights; a subject about which the class had been studying.
Superintendent Toscano, who had been with the district since October 1987, testified that he supported the principal's decision to censor the articles because they dealt with subject matter which was inappropriate for junior-high school students. Toscano admitted, however, that he had "no problem with Brien's review itself."
Toscano also felt that the mere inclusion of an R-rated movie review in the school paper would tend to encourage students to see these movies because students at this age are looking for the "hidden adventure." He also believed that the mere mention of a movie in the school paper would be viewed as an endorsement of that movie from the school district itself. In Toscano's view, nothing short of total censorship would work; that is, a disclaimer from the Board would not sufficiently counteract the implied endorsement.
Plaintiff introduced into evidence other issues of the Pioneer Press which had been published and distributed while he was a student at Clearview. Those issues began in October, 1987 and ended in June, 1990. Apparently, in a June, 1988 issue (a copy of which has not been provided on appeal), there were movie reviews of three R-rated movies: Rawhide Rats, The Stepfather, and Children of the Corn. Toscano claimed that those reviews were published prior to a time when he and the Board had a full understanding of Hazelwood v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988). According to Toscano, defendants took a different look at the contents of their school publications following Hazelwood because the decision gave school boards greater discretion in deciding the content of school-sponsored publications.
Toscano also conceded that the January, 1990 issue of the Pioneer Press had included results of a student poll regarding their favorite songs and movies from 1989. Interestingly, Rain Man was number five on the favorite movie list. Toscano also admitted that a teacher could appropriately discuss a movie such as Mississippi Burning in class, because a structured classroom Discussion regarding racial violence was far different from a movie
depicting the same subject. He did not offer to explain how such a movie could be discussed by students without it first having been seen by them in the company of a parent or guardian.
Toscano also admitted that the school board had approved an official policy regarding student publications. Specifically, the policy stated that student publications were sponsored so that pupils may learn the rights and responsibilities of the press in a free society. Such publications had to be generally suitable for all pupils at the school, and the administration was to evaluate all student-sponsored material to ascertain its suitability.
In particular, according to the policy, the following categories of materials were deemed to be unprotected by the right of free expression because they violated the rights of others: (a) items grossly prejudicial to an ethnic, religious or racial group; (b) libelous material; (c) material which sought to establish the supremacy of a particular religious point of view; (d) material which advocated the use or advertised the availability of any substance believed to constitute a danger to student health; (e) obscene material or material "otherwise deemed to be harmful to impressionable students who may receive them"; (f) material which advocated violence or force; (g) advertisements for profit-making organizations; (h) material which failed to identify the student responsible for its publication; (i) material offered for sale to other students; (j) solicitations for other than school organizations, which are not previously approved by the Board; and (k) material supporting or opposing a candidate for election to the school board, or the adoption of any bond issue. Toscano admitted that there was no specific policy regarding R-rated movie reviews. However, when the Board met subsequently to discuss plaintiff's situation, they agreed that the action taken by Bishop and Toscano was consistent with the Board's currently existing policy.
According to Toscano, the reviews in question here fell within the prohibited category "d" listed above, because they advocated the seeing of R-rated movies. No explanation was offered as to
how the review posed a "danger to student health." Toscano conceded that plaintiff's reviews did not advocate seeing these movies without parental permission.
In addition to the policy regarding student publications, another policy of the Board relating to students' rights is relevant to defendants' action herein. Board policy number 5145 provides that no student should be deprived of the basic right to equal treatment and equal access to the educational program, due process, the presumption of innocence, free expression and association, and the privacy of his or her own thoughts. However, the policy was qualified in that the Board believed that students of different ages and maturities differed in their ability to handle these rights and responsibilities. ...