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Policastro v. Tenafly Board of Education

May 7, 2010


The opinion of the court was delivered by: Debevoise, Senior District Judge



This matter comes before the Court on cross-Motions for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 submitted by Defendants, the Tenafly Board of Education ("the Board"), Dr. Eugene Westlake, and Dr. Theodora Kontogiannis, and Plaintiff, Andrew Policastro. Mr. Policastro, a teacher at Tenafly High School ("the school"), claims that Defendants violated his rights under the First Amendment to the United States Constitution by promulgating a policy requiring teachers to seek permission before distributing personal correspondence through the mailboxes at his school. On April 2, 2009, he deliberately violated that policy by placing over 100 memoranda in the teacher mailboxes in a transparent attempt to provoke the Defendants into taking disciplinary measures against him that could serve as the basis for this suit. His efforts were successful: on April 13, 2009, the Defendants issued an official letter of reprimand informing Mr. Policastro that future violations of the school's mailbox policy might lead to the loss of his tenure.

Mr. Policastro responded on April 15, 2009 by filing a Complaint in which he challenged the policy on the bases that it is vague, overbroad, and unconstitutional as applied to him -- and asserted claims based on those contentions against all Defendants under 42 U.S.C. § 1983.*fn1

Noting that Mr. Policastro had filed a similar suit in 2004, Defendants moved to dismiss on the grounds that his claims in this litigation were barred by the doctrines of res judicata and collateral estoppel. In a ruling issued July 24, 2009, the Court granted the Defendants' Motion with respect to Mr. Policastro's overbreadth and vagueness challenges, but declined to dismiss his contention that the policy was unconstitutional as applied to him. See Policastro v. Tenafly Bd. of Educ., 2009 WL 2232525 (D.N.J. 2009) (hereinafter "Policastro I"). Accordingly, only Mr. Policastro's "as-applied" challenge to the policy and his attendant § 1983 claims remain at issue.

Arguing that Mr. Policastro's actions in placing the memoranda in the teacher mailboxes were not protected by the First Amendment, Defendants now move for summary judgment on his remaining claims. In doing so, they assert that the speech at issue in this case -- Mr. Policastro's dissemination of memoranda through the teacher mailboxes -- fails the test for determining whether the First Amendment applies to expressive conduct by teachers and other government employees first announced by the Supreme Court in Pickering v. Board of Education of Township High School District 205, Will County, 391 U.S. 563 (1968). Under that standard, which the Supreme Court recently refined in Garcetti v. Ceballos, 547 U.S. 410 (2006), expressive conduct by government employees is protected by the First Amendment if (1) the employee spoke as a citizen, (2) on a matter of public concern, and (3) the employee's interests in disseminating the particular ideas expressed outweigh those of the employer in restricting them.

Citing the fact that "[n]either teachers [n]or students shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1968), Mr. Policastro argues that the reprimand he received for distributing the memoranda through the teacher mailboxes without first seeking permission violated his rights under the First Amendment. In support of that argument, he cites a number of cases that are not applicable to his claims either because they were decided by tribunals whose rulings are not binding on this Court, dealt with factual circumstances different from those at issue in this litigation, or both. Additionally, Mr. Policastro notes the writings of various legal scholars -- most of which stand for the general assertion that the First Amendment protects political speech rather than dealing with the specific circumstances at issue here.*fn2

For the reasons set forth below, Defendants' Motion for Summary Judgment will be granted. The legal arguments advanced by both parties are inapposite. Both the Tinker and Pickering/Garcetti lines of cases deal with attempts by government officials to restrict speech based on its content. The parties agree that the mailbox policy in this case was content-neutral -- it applied equally to all materials distributed through the mailboxes regardless of their subject-matter. Accordingly, the policy is best viewed as a time, place, and manner limitation on expressive conduct, and the legality of the Defendants' decision to reprimand Mr. Policastro for violating that policy must be analyzed under the test applicable to such restrictions. Under that standard, it is clear that Mr. Policastro's actions in distributing the memoranda without first seeking permission to do so were not protected by the First Amendment. Therefore, the Defendants did not violate his constitutional rights by reprimanding him, and his § 1983 claims must be dismissed.


The facts underlying this dispute were set forth in the Court's July 24, 2009 Opinion, the "background" section of which is incorporated herein by reference. See Policastro I, 2009 WL 2232525 *2-4. In order to provide context for today's ruling, some of those facts are repeated below.

A. The Policy

Tenafly High School maintains a central set of mailboxes for the teachers and other staff members who work at that institution. The room containing the mailboxes is normally open to all school staff. However, school policy requires that teachers or staff members who wish to distribute mail internally must seek permission before doing so. Specifically, the policy states that:

Mailboxes are the property of the Tenafly Board of Education and should be used for school business. Any staff member wishing to distribute flyers/announcements etc. (via the mailboxes) must have prior approval from the principal or vice-principal.

In addition to their physical mailboxes, teachers may communicate with one another through the school's electronic mail system. In order to facilitate discussion between the teachers on union matters and other topics of concern, Defendants specifically created a mailing list for that system that omits school administrators. Teachers are allowed unlimited use of the list, free of charge, to distribute correspondence on any topic. Mr. Policastro concedes that he uses the electronic mail system regularly to communicate with his colleagues, and that doing so is more convenient than placing physical memoranda in the teacher mailboxes.

B. Prior Proceedings

The long-running and vitriolic dispute between the parties that gives rise to this litigation began on March 13, 2002, when Mr. Policastro used the teacher mailboxes to distribute a memorandum relating to a labor dispute between the teachers at Tenafly High School and their union over the negotiation of a proposed collective bargaining agreement. The memorandum apparently caused quite a stir among the school's teachers, including a kerfuffle in the library and several arguments. After receiving several complaints about the memorandum, Dr. Kontogiannis, the school's principal, decided that it was unacceptably disrupting school activities and ordered all copies that had not already been collected from the teacher mailboxes removed. Shortly thereafter, a teacher reported that copies had been reinserted in the mailboxes. Dr. Kontogiannis again ordered them removed, and locked the mailroom door for the remainder of the school day.

Two years later, on March 14, 2004, Mr. Policastro brought suit in this Court against Dr. Kontogiannis and the Board. He alleged that that the school's policy of requiring teachers to seek prior approval before placing personal correspondence in the mailboxes was unconstitutionally overbroad and had infringed his rights under the First Amendment in the manner it was applied to him, and asserted a § 1983 cause of action against Dr. Kontogiannis based on his claim that her removal of the memorandum had violated his constitutional rights.

After a bench trial at which Mr. Policastro appeared pro se, the Honorable Joel A. Pisano of this Court ruled in favor of Dr. Kontogiannis and the Board. In doing so, Judge Pisano held that the school's policy relating to the teacher mailboxes is not unconstitutionally overbroad, and the application of that policy to Mr. Policastro did not violate his rights under the First Amendment. Mr. Policastro sought relief from the Court of Appeals for the Third Circuit, which on January 24, 2008 affirmed this Court's judgment that the school's policy requiring staff members to seek permission before placing personal items in the teacher mailboxes is not unconstitutionally overbroad, and dismissed Mr. Policastro's challenge to the policy as it was applied to him and § 1983 claims as moot. See Policastro v. Kontogiannis, 262 Fed. App'x 429, 434 (3d Cir. 2008). In connection with the latter ruling, the Court of Appeals noted that Mr. Policastro had not sought damages as part of his § 1983 claim, and held that he was without standing to seek injunctive relief because the actions that gave rise to his suit were not likely to recur. Id. at 434 n.7 ("The prospect of a similar memorandum being removed from teacher mailboxes under the facts present here is too speculative to warrant invocation of [the "capable of repetition yet evading review'] exception" to mootness.).

Dissatisfied with the ruling by the Court of Appeals, Mr. Policastro submitted a petition for certiorari to the Supreme Court of the United States, which was denied on October 6, 2008. See Policastro v. Kontogiannis, 129 S.Ct. 46 (2008). Mr. Policastro then requested that the Supreme Court stay the judgment of the Court of Appeals. On January 21, 2009, the Supreme Court denied that request, see Policastro v. Kontogiannis, 129 S.Ct. 1031 (2009), thus ending the five years of legal proceedings that resulted from the removal of Mr. Policastro's March 13, 2002 memorandum from the teacher mailboxes.

C. The Pending Suit

Or so it seemed. But, unsatisfied with the ruling by the Court of Appeals that his ยง 1983 claims were moot because he had not sought damages and the conditions that led to the removal of his March 13, 2002 memorandum from the teacher mailboxes were not likely to recur, Mr. Policastro set out to deliberately manufacture such a recurrence. He prepared over 100 memoranda comparing the salaries of Tenafly High School teachers to those of ...

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