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MOORE v. ASBURY PARK BOARD OF EDUCATION

August 23, 2005.

MAMIE MOORE, et al., Plaintiffs,
v.
ASBURY PARK BOARD OF EDUCATION, et al., Defendants.



The opinion of the court was delivered by: MARY COOPER, District Judge

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OPINION

This matter comes before the Court on the motion by plaintiffs, Mamie Moore ("Moore") and James Maynard ("Maynard") (collectively, "plaintiffs"), for preliminary injunctive relief. Plaintiffs filed the complaint on June 9, 2005 and filed the motion on June 21, 2005. The parties submitted briefs in support of and in opposition to the motion, and the Court heard oral argument on the motion on August 16, 2005. The parties waived the holding of an evidentiary hearing in favor of the Court deciding the matter on the papers submitted by the parties. The Court will grant in part and deny in part plaintiffs' request for a preliminary injunction for the reasons stated in this memorandum opinion. BACKGROUND

I. The Parties

  Plaintiffs are residents of Asbury Park, New Jersey. (Compl. at ¶¶ 7-10.) Moore is a member of both the Parent Teacher Student Organization and the Student Leadership Committee at Asbury Park High School, as well as the Government and Education Committee of the Asbury Park Concerned Christian Coalition, and is a grandmother of three children who attend Asbury Park schools. (Id.) Maynard is a public school teacher as well as the president and founder of the Asbury Park Improvement Association. (Id.) Maynard is the husband of Susan Maynard, a member of the Asbury Park Board of Education (the "Board"). (Id. at ¶ 11.)

  The Board and individual Board members are the defendants. The Board is a governmental entity responsible for administering the elementary and secondary schools of Asbury Park, and it sets policy for the school district. (Compl. at ¶ 12; Ans. at ¶ 12.) Defendant Antonio Lewis is the superintendent of the Asbury Park school system. (Compl. at ¶ 13; Ans. at ¶ 13.) Defendant Robert DiSanto ("DiSanto") is the president of the Board. (Compl. at ¶ 14; Ans. at ¶ 14.) DiSanto was elected by the citizens of Asbury Park to serve as a member of the Board in April 2003. (DiSanto Cert., ¶ 8.) DiSanto was appointed as president of the Board in May 2004 by the county superintendent. (Id.) The remaining defendants, Amsden Bernier, Frank D'Allesandro, Garrett Giberson, Adrienne Sanders, and Eileen Sonnier, are members of the Board. (Compl. at ¶¶ 15-19; Ans. at ¶¶ 15-19.)

  DiSanto was the general manager of Club Paradise (the "Club"), a night club in Asbury Park, from the time he was elected to the Board in April 2003 until September 2004. (Compl. at ¶ 28; Ans. at ¶ 28.) During that time, the Club promoted its activities in a monthly publication called "The Palm," recent and archived editions of which were available at the Club's web site, www.paradisenj.com. (Compl. at ¶¶ 31-32; Ans. at ¶¶ 31-32.) The web site is publicly accessible and imposes no age verification requirement. (Compl. at ¶ 32; Ans. at ¶ 32.) Editions of "The Palm" published during DiSanto's tenure on the Board contained an introductory statement by DiSanto along with his picture. (Compl. at ¶ 33; Ans. at ¶ 33.) These editions also contained, inter alia: a picture of an apparently naked pornography star, and a link to a pornographic web site, in connection with his appearance at the Club; promotion of a Club "sexware" party; promotion of "hot-hot go-go boys" at the Club; promotion of a "Battle of the Bulges" underwear contest at the Club ("Don't be shy kids, we're not looking for the biggest bulge, we're looking for who looks the best in their skivvies."); promotion of a movie playing at the Club called "Eating Out," which featured a photo of two shirtless, apparently teenage boys about to kiss and the text: "be prepared . . . to drool over the gorgeous boys." (Compl. at ¶ 34; Ans. at ¶ 34.)

  II. The Board Meetings

  The Board holds regular meetings at which it conducts its business. (Compl. at ¶ 22; Ans. at ¶ 22.) These meetings are open to the public, and a portion of each meeting is set aside as a public comment period. (Compl. at ¶¶ 23, 25; Ans. at ¶¶ 23, 25.)

  At the May 13, 2004 meeting, during the public comment period, Maynard said he was "upset with the County Superintendent's choice of Robert DiSanto as Board President" and asked "to know the specific criteria used in making the selection." (Excerpts of Board Minutes from 5-13-04 Meeting at 21, App. of Exhibits Supp. of Mot. for Prelim. Inj., Ex. ("Pl's Ex.") Q.)

  At the June 2, 2004 meeting, Susan Maynard spoke critically of DiSanto's appointment to the Board presidency and mentioned "receiving many phone calls from parents unhappy about the appointment and expressing concern about the [Club] website." (Compl. at ¶ 36; Ans. at ¶ 36.)

  At the June 14, 2004 meeting, Asbury Park resident Donna Harrison ("Harrison") and another speaker during the public comment period commented on the fact that the children of plaintiff Maynard and Board member Susan Maynard did not attend Asbury Park public schools. (Compl. at ¶ 37; Ans. at ¶ 37.) Harrison referred to criticism of DiSanto by the Maynards as "cowardly attacks." (Compl. at ¶ 38; Ans. at ¶ 38.)

  At the June 16, 2004 meeting, during the public comment period, resident John Figuerido "spoke of despicable behavior displayed by some Board Members" and "announced that he [would] begin the process for a recall vote for Susan Maynard's seat on the Board." (Compl. at ¶ 40; Ans. at ¶ 40; Excerpts of 6-16-04 Board Mtg. at 25, Pl.'s Ex. R.) Resident Tracy Stark said she would "`second' [Figuerido's] vote to remove Susan Maynard." (Compl. at ¶ 41; Ans. at ¶ 41; Excerpts of 6-16-04 Board Mtg. at 25, Pl.'s Ex. R.)

  At the September 16, 2004 meeting, two policies relating to sexual harassment (Policies 3362 and 4352) were on the Board's agenda. (Compl. at ¶ 45; Ans. at ¶ 45.) Moore was recognized to speak by DiSanto during the public comment period and she attempted to read a statement. (Compl. at ¶¶ 47-48; Ans. at ¶¶ 47-48.) She said:
I'm a member of the Concerned Christian Coalition and the statement that I'm reading tonight was prepared by Overseer Porter Brown, the founding member of the Concerned Christian Coalition and a Pastor of the Faith Baptist Tabernacle Church of Asbury Park.
These are challenging times filled with great opportunity for advancement and better relationships and understanding within the City of Asbury Park. However, if voices within the community are silenced by the loud cries of those who have different views, then we are teaching our citizens and especially our children that democracy and freedom of speech actually have no place in our culture.
The media . . . both print and broadcast have up to this point not covered the thorny issues we face [with] objective balance but have chosen to give more coverage to a certain perspective without presenting alternative views. That, too, sends a detrimental message to the citizens of our community.
So here we are tonight with the same controversy. While we do not advocate discrimination, we uphold [Biblical] demands concerning right and wrong choices people make. With that stated let's be perfectly clear. Our concern has all to do with the kind of role model the present President of the Board of Education sends to impressionable children, our children.
(Transcr. of Portion of 9-16-04 Board Mtg. at 2-3, Pl.'s Ex. A.)*fn1
  DiSanto then spoke:
Ms. Moore, we — we had already cautioned you that this is not a personal attack here tonight. That we're not going to open up to the public for personal attacks.
So, at that point I'm going to ask you to put the microphone down.
(Id. at 3.) Moore responded:
Well, I — I disagree with you that it's a personal attack . . . but I did anticipate that.
I do have copies for any of the Board Members that would like a copy.
(Id. at 3-4.)

  DiSanto then recognized Board member Sanders to speak. (Id. at 4; Compl. at ¶ 54.) Sanders spoke about, inter alia: "the fact that she is a sinner who sins every day;" her college friendship with a lesbian classmate who later married a man; DiSanto's resignation from the Club; overreaction to a photograph of DiSanto that she claimed was from a Halloween party; Coretta Scott King's views on gay marriage; and gay parents of students in the Board schools. (Compl. at ¶¶ 55-59; Ans. at ¶¶ 55-59.) No member of the Board interrupted Sanders nor attempted to terminate her speech. (Compl. at ¶ 60; Ans. at ¶ 60.) DiSanto then said, inter alia, that the photo being discussed was a misrepresentation of who he is and that he had resigned from the Club for reasons unrelated to the Board. (Compl. at ¶ 61; Ans. at ¶ 61.) Board member D'Allesandro and three Asbury Park residents, including Harrison, then spoke in support of DiSanto. (Compl. at ¶¶ 62-66; Ans. at ¶¶ 62-66.)

  Minister John Muhammad then questioned DiSanto about why he had not allowed Moore to finish her statement. (Compl. at ¶ 68; Ans. at ¶ 68.) In response, DiSanto said, This issue has been beaten to death. It's done . . . I'm not stepping down. The way — the way that you would handle this if you don't like me or you don't like my lifestyle, then don't vote for me again. That's how it's done. But at this meeting, the subject is done, it's dead, it's not going to change things. The state has come back to support me . . . The way that they would talk about this issue is at the polls, not in this forum, not here. Not here."

 (Compl. at ¶ 69; Ans. at ¶ 69.)

  At the October 14, 2004 meeting, two policies relating to inappropriate staff conduct (Policies 4281 and 3281) were on the Board's agenda. (Compl. at ¶ 70; Ans. at ¶ 70.) Maynard was recognized to speak by DiSanto and attempted to read a statement during the public comment period. (Compl. at ¶¶ 72-73; Ans. at ¶¶ 72-73.) The following exchange took place:
[Maynard]: My name is James Maynard, President of the Asbury Park Improvement Association.
At the last meeting on the 16th it was abruptly — abruptly terminated; you all went into Closed Session; a number of parents wanted to speak to the public.
As you know, this issue of Robert DiSanto and the fact that he is still the Board President is still under contention. In the papers he said it was a non-issue but what I want to do is bring some facts to go into the record about Mr. DiSanto.
[DiSanto]: Mr. Johnson —
[Maynard]: In April, 2004, Mr. DiSanto was appointed as President. After and before this date Mr. DiSanto placed significant objectionable material on the Club Paradise website.
[Gregory Johnson, Board counsel ("Johnson")]: Excuse me, Mr. Maynard — [Maynard]: Mr. DiSanto —
[Johnson]: Mr. Maynard —
[Maynard]: — was the general manager —
[Johnson]: — I just want to warn you that under the Board policy there's certain limits to what you could say. Those limits require that you be civil, that you be respectful, that you do not direct any comments personally to the Board Members.
[Maynard]: Have I done that?
[Johnson]: Well, we're warning — we're warning you at this point, —
[Maynard]: You warned me the times before —
[Johnson]: — please —
[Maynard]: — and I'm an intelligent person and I appreciate your warning. Now, just thank you very much.
In April, 2004, Mr. DiSanto, the Board President, —
[Johnson]: Well, I just want to let you know, before you get too far out there, that we do have the ability to ask the Police to stop you from making these comments.
(Applause.)
[Johnson]: I just want to let you know that to personally direct these comments at a particular Board Member is improper. We're not —
[Maynard]: Why — why is it improper for me to read information to educate the public about an individual?
[Johnson]: Well, as I said before —
[Maynard]: Really, why is that improper? [Johnson]: As I said before, —
[Maynard]: No, — answer that question.
[Johnson]: We have a policy —
[Maynard]: What is the impropriety there?
[Johnson]: We have a policy —
[Maynard]: What is the impropriety in a nation of freedom where you have a democratic society —
[Unidentified voice]: Why don't you read the Ordinance —
[Unidentified voice]: Come on, get out of here. Please.
[Unidentified voice]: It's disruptive.
[DiSanto]: All right, well, just let's keep some order please.
Mrs. — (indiscernible) — would you like to comment?
[Maynard]: No, — (indiscernible) —
(Applause.)
[Maynard]: — why are you — (indiscernible) — addressing me? What have I done wrong?
[Johnson]: Mr. Maynard?
[Unidentified voice]: Just keep composed.
[Maynard]: Are you going to allow me to read my statement or not?
[Johnson]: Well, if you're going to attack any Board Members personally, —
[Maynard]: Have I attacked anybody?
[Johnson]: — we're not — we're not going to allow that. [Maynard]: Have I attacked anybody?
[Johnson]: Well, we know —
[Maynard]: We know what?
[Johnson]: — that you — we know that you have certain objections to the Board President.
[Maynard]: You know what this is now? You are surmising —
[Unidentified voice]: Oh, come on. Enough's enough. Enough's enough.
[Two unidentified voices]: (Indiscernible.)
[Unidentified voice]: (Indiscernible) — public's comments should be related to agenda items.
[Unidentified voice]: Well, the other people want to talk —
[Unidentified voice]: Come on.
[Maynard]: Are you going to let me talk about —
[Johnson]: Well, if you're — if you're not going to discuss the agenda —
[Maynard]: No, no, I can discuss governmental issues —
[Johnson]: That's not — that's not an issue.
[Unidentified voice]: (Indiscernible.)
[Unidentified voice]: Mr. Johnson, we have a Board policy that says that the public comments are to be made concerning agenda items.
[Maynard]: This is an agenda item.
[Unidentified voice]: That's a personal item of yours.
[Maynard]: So, you're telling me that the public who has concerns about the educational system here cannot address anything in the educational system?
[Unidentified voice]: (Indiscernible.)
[Johnson]: I'm asking you that if you have anything to say —
[Maynard]: Let me read by [sic] statement and if you find it wrong, you can — you can — (indiscernible). Let me read my statement.
In April, 2004, Mr. DiSanto —
[Unidentified voice]: Why must we endure this?
[Unidentified voice]: (Indiscernible.)
[Unidentified voice]: We don't want to hear this.
[Johnson]: Mr. Maynard? Mr. Maynard? Mr. Maynard, we're not going to listen to that. If you —
[Maynard]: Why?
[Johnson]: — want to discuss that, then we're going to ask the Police Officer to remove you.
[Maynard]: Go ahead and have me removed. I have — have him remove me then.
[Unidentified voice]: Enough's enough.
[Maynard]: You go ahead then. (Indiscernible) — that statement.
In April of 2004, —
[Unidentified voice]: All right, I don't want to hear it —
[Unidentified voice]: Adhere to the policy.
[Maynard]: After and before this date, Mr. DiSanto has placed significant objectionable material —
[Unidentified voice]: (Indiscernible) — [Maynard]: Are you going to tell this gentleman here —
(Indiscernible portion, several people speak at the same time.)
[DiSanto]: Let's — let's get some order in here.
[Maynard]: Thank you very much.
[DiSanto]: Mr. Maynard, please. We are trying to conduct a positive meeting here.
[Maynard]: I agree.
[DiSanto]: We have heard your concerns.
[Maynard]: You haven't heard my concerns. I'm going to read them tonight.
[DiSanto]: I believe we've heard it before.
[Maynard]: How can you surmise what someone's about to read?
[DiSanto]: Could we make it brief, please?
[Maynard]: You're going to give me my two minutes? And after those two minutes I can come back and get another two minutes. Thank you very much.
In April of 2004, Mr. DiSanto —
[Johnson]: Mr. President, wait, I would recommend that we have a Resolution going into Executive Session because we do have another legal matter and we can return after members of the Board have heard — have met with the attorney who's a special counsel.
[D'Allesandro]: I make a motion we go into Closed Executive Session.
[DiSanto]: Motion to go into Closed Executive Session made by Mr. D'Allesandro. Seconded by Mrs. Sonnier. To discuss personnel, litigation and matters of attorney/client privilege. [Roll call was taken and the Board went into closed session.]
(Tr. of Portion of 10-14-04 Board Mtg. at 2-10, Pl.'s Ex. B.)
  The Board reopened the public comment period following a closed session. (Id. at 10-12.) The first speaker during this second public session was Dennis Caufield ("Caufield"), plaintiffs' counsel in this action. (Id. at 12.) Caufield introduced himself as an attorney in consultation with Maynard and said, "What I'd like to do is address a topic that Mr. Maynard had wanted to put on record. They're simply facts that exist on a website located at Club Paradise." (Id.) Caufield and Johnson, following a few remarks by each, then had the following exchange:
[Johnson]: Mr. Caufield, I believe that your client did get an opportunity to speak earlier and he was interrupted because his speech or his statement was a personal attack upon one of the Board Members. And we really don't want to get into that. We believe we have the authority to limit areas that the public can talk about, so, you know, we would like to open the public participation up to other members of the public to talk.
There are concerns that people of the public may have. We've listened to what your client had to say tonight, so I'd ask you — we're asking you —
We don't want to hear that. Okay? We — we heard your client make a statement not only tonight but at previous Board meetings.
[Caufield]: Sir, you're assuming what he's going to put on the record. He's not going to put on the record tonight what he put on at other business meetings — rather other Board meetings. [Johnson]: Well, we know what he said before and he's already spoken about that issue. So, —
[Caufield]: (Indiscernible) — he was not given an opportunity. I'm going to speak about something different than what you anticipate . . .
. . .
[Johnson]: Does that concern a member of the Board of Education? That's what I'm — all I'm asking you?
Your speech, will that concern a member of the Board of Education?
[Caufield]: Yes, it will, sir.
[Johnson]: Okay, sir, we don't have to go into that.
. . .
[Caufield]: You haven't heard what I have to say.
[Johnson]: You just said that you're going to comment about an individual Board Member. We — you know that is a personal attack.
[Caufield]: It's — no, what I'm going to represent are only materials that he placed on the website.
[Johnson]: No, no, no, no, no.
(Id. at 12-15.)
  Johnson then recognized a Mr. Crudup, who spoke about agenda items. (Id. at 16.) Maynard then spoke again, and had the following exchange with an unidentified Board member or members:
[Maynard]: My name is James Maynard . . . and I have a question about the minutes.
If you look at item 10(a), which was referred to Mr. Crudup, they talk about the — this — inappropriate staff conduct, policy 4281.
[Board member]: May I have a point of order?
[Johnson]: Yes.
[Board member]: Is this staff conduct or Board of Education conduct?
[Johnson]: Staff members.
[Board member]: Staff conduct. We are not members of the staff.
[Johnson]: That's right.
[Board member]: This particular policy does not apply to the Board of Education. It applies to the staff of the Board of Education. Therefore, the policy that they're talking about has nothing to do with the Board of Education and we will not accept personal attacks upon the Board of Education. That is outside of our policy. Our policy does not permit it.
[Maynard]: Has there been a personal attack? I'm asking about the minutes here.
(Id. at 16-17.)

  At the November 18, 2004 Board meeting, Maynard attempted to read a statement during the public comment period. (Compl. at ¶¶ 88-89; Ans. at ¶¶ 88-89.) The minutes reflect that, in response to Maynard, Board counsel "clarified that Policy # 4281 applies to staff only, not Board Members. He further explained that this Board has no jurisdiction over misconduct of a Board Member." (Excerpts of Board Minutes from 11-18-04 Meeting at 27, Pl.'s Ex. V.) III. The Challenged Policy

  Plaintiffs challenge the constitutionality of certain provisions of Board Bylaw 0167 (the "Bylaw") and seek a preliminary injunction to prevent the Board from enforcing those provisions. The Bylaw, entitled "Public Participation in Board Meetings," states:
The Board of Education recognizes the value of public comment on educational issues and the importance of allowing members of the public to express themselves on school matters of community interest.
In order to permit the fair and orderly expression of such comment, the Board shall provide a period for public comment at every public meeting.
Public participation shall be permitted at the discretion of the presiding officer.
Public participation shall be extended to residents of this district, persons having a legitimate interest in the actions of this Board, persons representing groups in the community or school district . . . except when the issue addressed by the participant is subject to remediation by an alternate method provided for in policies or contracts of the Board.
Public participation shall be governed by the following rules:
1. A participant must be recognized by the presiding officer . . .
2. Each statement made by a participant shall be limited to three minutes' duration, or at the discretion of the presiding officer;
3. No participant may speak more than once on the same topic until all others who wish to speak on that topic have been heard; 4. All statements shall be directed to the presiding officer; no participant may address or question Board members individually;
5. The presiding officer may:
a. Interrupt, warn, or terminate a participant's statement when the statement is too lengthy, personally directed, abusive, obscene, or irrelevant;
b. Request any individual to leave the meeting when that person does not observe reasonable decorum;
c. Request the assistance of law enforcement officers in the removal of a disorderly person when that person's conduct interferes with the orderly progress of the meeting;
d. Call for a recess or an adjournment to another time when the lack of public decorum so interferes with the orderly conduct of the meeting as to warrant such action; and
e. Waive these rules when necessary for the protection of privacy or the efficient administration of the Board's business.
(Asbury Park Board of Educ. Bylaw 0167, Pl.'s Ex. E.)
  Plaintiffs specifically challenge the following phrases:
• The phrase "at the discretion of the presiding officer" in the third full unnumbered paragraph ("paragraph three");
• The phrase "personally directed" in numbered paragraph 5(a) ("paragraph 5(a)"); and
• The phrase "Waive the rules when necessary for the protection of privacy or the efficient administration of the Board's business," in numbered paragraph 5(e) ("paragraph 5(e)"), i.e., all of paragraph 5(e).*fn2
  Plaintiffs challenge the Board's policies and practices both facially and as applied on the grounds that the policies (1) constitute impermissible viewpoint-based restrictions in violation of the First Amendment to the United ...

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