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Desilets on Behalf of Desilets v. Clearview Regional Bd. of Educ.

Decided: September 22, 1994.

PATRICIA DESILETS, ON BEHALF OF AND AS NATURAL GUARDIAN OF BRIEN DESILETS, PLAINTIFF-RESPONDENT,
v.
CLEARVIEW REGIONAL BOARD OF EDUCATION, MICHAEL P. TOSCANO, SUPERINTENDENT AND CHARLES BISHOP, PRINCIPAL, DEFENDANTS-APPELLANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 266 N.J. Super. 531 (1993).

Handler, O'Hern, Garibaldi, Clifford, Stein, Pollock, Wilentz

Per Curiam

Per Curiam

The mother of a junior high school student brought this action against a school board and the school's superintendent and principal challenging their refusal to publish in the student newspaper her son's movie reviews of R-rated films. She contended that the action taken by the school authorities violated her son's freedom of expression under the state and federal constitutions. The school authorities assert that they did not violate the student's right to free expression because the decision to withhold publication of the movie reviews was based on valid educational policy.

The trial court ruled that the school principal's decision to delete the pupil's movie reviews from the school newspaper did not violate his expressional rights under the First Amendment of the Federal Constitution because such action was reasonably related to legitimate pedagogical concerns, as required by the United States Supreme Court in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988). Nevertheless, the trial court determined that the student's rights had been violated under the State Constitution, which, it found, provided broader protection of free expression than the First Amendment.

The Appellate Division, with a Dissent, affirmed the judgment of the trial court. 266 N.J. Super. 531 (App. Div. 1993). The Appellate Division majority reasoned that the school authorities had violated the student's First Amendment rights, not the State Constitution, because under Hazelwood, no legitimate pedagogical reasons justified the censorship of the R-rated movie reviews. However, the Dissent concluded that under Hazelwood the student's expressional rights had not been violated because the actions taken by the school authorities were reasonably related to legitimate pedagogical concerns.

We granted the certification petition of the school board, 134 N.J. 565 (1993).

We now affirm the judgment of the Appellate Division substantially for the reasons set forth in the opinion of Judge Keefe, and rely on the Appellate Division's rendition of the case's facts and procedural history. We comment only briefly on that opinion to address the issue related to the relevance of the type of student expression that may be subject to restrictive school policy and, further, to indicate the appropriate procedures for adjudicating this kind of controversy in the future.

I

In Hazelwood, the United States Supreme Court determined that a school principal's censorship of student-written articles for

the student newspaper was not violative of the First Amendment because the decision of the school authorities was reasonably related to legitimate pedagogical concerns. 484 U.S. at 260, 108 S. Ct. at 562, 98 L. Ed. 2d at 592.

The Supreme Court rejected the students' claims that the student newspaper was a public forum. The Court ruled that "public schools may be deemed to be public forums only if school authorities have 'by policy or practice' opened those facilities 'for indiscriminate use by the general public' or by some segment of the public, such as student organizations." Id. at 267, 108 S. Ct. at 568, 98 L. Ed. 2d at 603 (quoting Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460 U.S. 37, 47, 103 S. Ct. 948, 956, 74 L. Ed. 2d 794, 806 (1983)). "If the facilities have instead been reserved for other intended purposes," then the forum is not a public one, and the school "may impose reasonable restrictions on the speech of students, teachers, and other members of the school community." 484 U.S. at 267, 108 S. Ct. at 567-68, 98 L. Ed. 2d at 603. The Supreme Court concluded that the newspaper was not a public forum because the student newspaper was part of the school curriculum, a faculty member taught the newspaper course during regular school hours, and the students received grades and academic credit for participating on the newspaper. Id. at 268-69, 108 S. Ct. at 568-69, 98 L. Ed. 2d at 603-04.

Whether a school newspaper is a "public forum" can be determinative of whether attempts to limit or control the expressional activities undertaken by the newspaper violate constitutional rights. The power of the State to limit expressional activity using public forums, that is, in places that have been devoted to assembly and debate, such as streets and parks, is severely limited. Perry, supra, 460 U.S. at 45, 103 S. Ct. at 954, 74 L. Ed. 2d at 804. A state may enforce a content-based regulation restricting expressional activity in such public forums only if such a regulation is necessary to serve a compelling state interest and that regulation is narrowly drawn. Ibid. In addition, time, place, and manner restrictions may also be imposed on expression if those

restrictions are content-neutral, narrowly tailored to serve a significant governmental interest, and "leave open ample alternative channels of communication." Ibid. Those strictures, however, do not apply to speech or expression that is undertaken in a public forum, as exemplified by the Supreme Court's decision in Hazelwood.

The Appellate Division was soundly guided on this issue by the Supreme Court. It ruled that the student newspaper, Pioneer Press, is not a public forum. 266 N.J. Super. at 538. Concededly, students participating in the Pioneer Press, unlike those in Hazelwood, did not receive grades or academic credit for their participation in the newspaper. See Hazelwood, supra, 484 U.S. at 268-69, 108 S. Ct. at 568-69, 98 L. Ed. 2d at 603-04. Nor was the publication part of regular classroom assignments. See ibid. However, the publication was supervised by a designated faculty member. Moreover, as the Appellate Division noted, "students, parents and members of the public might reasonably perceive [school-sponsored publications] to bear the imprimatur of the school," id. at 271, 108 S. Ct. at 569-70, 98 L. Ed. 2d at 605, "whether or not [such activities] occur in the traditional classroom setting, as long as [those activities] are supervised by faculty members and [are] designed to impart knowledge or skills to the student participants and their audiences," 266 N.J. Super at 540.

We therefore agree with the determination of the Appellate Division that the Pioneer Press is not a public forum.

II

The Supreme Court recognized that although neither students nor teachers "shed their constitutional rights of freedom of speech or expression at the school house gates," Tinker v. Des Moines School Dist., 393 U.S. 503, 506, 89 S. Ct. 733, 736, 21 L. Ed. 2d 731, 737, speech occurring in a non-public forum, as in Hazelwood, may be subject to reasonable restrictions. With respect to a school publication, it ruled in Hazelwood that "educators

do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." 484 U.S. at 273, 108 S. Ct. at 571, 98 L. Ed. 2d at 606. The Court provided examples of legitimate pedagogical concerns, which included "speech that is . . . ungrammatical, poorly written, inadequately researched, biased or ...


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