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.
Supreme Court of New Jersey
Decided September 16, 1975.
Argued September 26, 1973—Reargued November 4, 1974—
68 N.J. 301
Mrs. Joyce Usiskin and Miss Mary Ann Burgess, Deputy Attorneys General, argued the cause for respondent New Jersey State Board of Education (Mr. George F. Kugler, Jr., and Mr. William F. Hyland, Attorneys General, attorneys; Mr. Stephen Skillman, Assistant Attorney General, of Counsel; Mrs. Usiskin, on the Brief).
Mr. David Samson argued the cause for respondent Board of Education of South Orange-Maplewood (Messrs. Lieb, Wolff & Samson, attorneys; Mr. Samson, on the Brief).
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,1 see, e. g., Roe v. Wade, 410 U. S. 113,
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
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
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 сase and controversy requirement of
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
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.2 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.”3 Petitioners
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 thesе 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,4 and suspended.
A few days later a second literature-distribution incident occurred when students passed out leaflets protesting the
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
In compliance with this decision the student-staff committee met to prepare guidelines “for the distribution of materials outsidе usual school channels.” The following were submitted to the Commissioner:
A. Places On the school sidewalk in front of the main entrance to building and on the walk in front of the gym lobby. (In case of bad weather, two pupils only would be permitted each in the front main lobby and in the gym lobby. Specific approval to distribute materials inside would be required each time.)
B. Time 7:45-8:15 a.m. 2:46-3:15 p.m.
C. Approval The previous day or earlier by appropriate class dean or principal, if dean should be absent. For materials not readily classifiable or approvable more than one day should be allowed.
D. Sponsorship For a club or other regular school group, the person who serves regularly as sponsor. He may designate a substitute if he cannot be present during distribution activity. For individual students or a group not formally organized, any willing staff member mаy serve as sponsor provided he can arrange to be present to prevent problems during distribution activity.
E. Littering All distributed items which are dropped in the immediate area (on the front sidewalk and lawn adjacent to the street, for example, or the two inside lobbies and adjacent corridor for 50-75 feet) must be removed by persons distributing the material. Wastebaskets will be provided.
F. Unacceptable items So-called “hate” literature which scurrilously attacks ethnic, religious and racial groups, other irresponsible publications aimed at creating hostility and violence, hardcore pornography, and similar materials are not suitable for distribution in the schools. Materials denigrating to specific individuals in or out of the School. Materials designed for commercial purposes — to advertise a product or service for sale or rent.
Materials which are designed to solicit funds, unless approved by the Superintendent or his Assistant. Literature which in any manner and in any part thereof promotes, favors or opposes the candidacy of any candidate for election at any annual school election, or the adoption of any bond issue, proposal, or any public question submitted at any general, municipal or school election. G. Acceptable materials Materials not proscribed in section F unless dean or principal should be convinced that the items would materially disrupt classwork or involve substantial disorder or invasion of the rights of others.
H. Appeal Pupil denied approval may appeal to the Principal who with a student advisory committee of one representаtive from each class will review the matter. Should the petition be denied, the petitioner may still appeal to the Superintendent, then to the Board of Education, etc.
In keeping with his retention of jurisdiction, the Commissioner of Education reviewed the guidelines and found them “generally acceptable” with the exception of provision “D” dealing with “Sponsorship.” The Commissioner directed that the remaining guidelines “be adopted by the [local Board] as adequate and appropriate controls for the distribution of student newspapers and leaflets.”5 Because I believe these guidelines to be violative of basic constitutional rights, I would reverse the judgment of the Appellate Division which approved the administrative decision.
II
For more than fifty years the Supreme Court has acknowledged the Constitutiоn‘s vitality within the schoolhouse. See Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506-07, 89 S. Ct. 733, 736-37, 21 L. Ed. 2d 731, 737-38 (1969), and cases cited therein.
The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures — Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes. (emphasis added)
With respect to the rights of students under the First Amendment, the Court has demonstrated conspicuous sensitivity. It has declared flаtly that “the First Amendment leaves no room for the operation of a dual standard in the academic community * * *.” Papish v. Univ. of Mo., 410 U. S. 667, 671, 93 S. Ct. 1197, 1200, 35 L. Ed. 2d 618, 622 (1973).
The force of this message is in no wise diluted by virtue of its application in this case to high school pupils as distinguished from college-age students or older adults. Tinker held that high school and junior high school officials had transgressed their authority by refusing to let students wear black arm bands in protest of the Vietnam War, a symbolic act “closely akin to ‘pure speech’ * * * entitled to comprehensive protection under the First Amendment.” 393 U. S. at 505-06, 89 S. Ct. at 736, 21 L. Ed. 2d at 737.6 It has been suggested that students’ constitutional rights are to be “applied in light of the special characteristics of the school environment,” Tinker, supra, 393 U. S. at 506, 89 S. Ct. at 736, 21 L. Ed. 2d at 737, and that First Amendment rights of
None of this is to say, however, that student speech can be subject to no regulation whatsoever. Of course it can. The Court has recognized the comprehensive authority of school officials generally to prescribe and control day-to-day operations, e. g., Epperson v. Arkansas, 393 U. S. 97, 104, 89 S. Ct. 266, 270, 21 L. Ed. 2d 228, 234 (1968), and particularly to impose “reasonable regulations with respect to the time, the place, and the manner in which student groups conduct their speech-related activities * * *.” Healy v. James, 408 U. S. 169, 192-93, 92 S. Ct. 2338, 2352, 33 L. Ed. 2d 266, 286 (1972). See, e. g., Papish v. Univ. of Mo., supra, 410 U. S. at 670, 93 S. Ct. at 1199, 35 L. Ed. 2d at 622. And, as will be seen, student speech may be interrupted and terminated in the event its continuation could reasonably be forecast to produce disruption. See Fujishima v. Bd. of Educ., 460 F. 2d 1355, 1358 (7th Cir. 1972). The problem arises — as it did in the case sub judice — when students’ rights of free expression come into collision with the school‘s interest in maintaining an atmosphere conducive to education. At that point some balancing of the competing interests
Doubtless there are those who look upon such a course as smacking too much of permissiveness.7 Certainly it is po-
While I am certain the Constitution allows regulation of student speech because of its potential for producing disorder, I am equally certain that when such regulation takes the form of prior restraints, it is presumptively invalid. See generally Gyory, “The Constitutional Rights of Public School Pupils,” 40 Fordham L. Rev. 201 (1971); Note, “Prior Restraints in Public High Schools,” 82 Yale L. J. 1325 (1973).
III
At this point some definition of the concept of prior restraint, which has been described as “curiously confused and unformed” despite an “ancient and celebratеd history,” Emerson, “The Doctrine of Prior Restraints,” 20 Law & Contemp. Prob. 648, 649 (1955), should be attempted. Professor Emerson commences:
The concept of prior restraint, roughly speaking, deals with official restrictions imposed upon speech or other forms of expression in advance of actual publication. Prior restraint is thus distinguished from subsequent punishment, which is a penalty imposed after the communication has been made as a punishment for having made it. Again speaking generally, a system of prior restraint would prevent communication from occurring at all; a system of subsequent punishment allows the communication but imposes a penalty after the event. Of course, the deterrent effect of a later penalty may operate to prevent a communication from ever being made. Nevertheless, for a
variety of reasons, the impact upon freedom of expression may be quite different, depending upon whether the system of control is designed to block publication in advance or deter it by subsequent punishment. [Id. at 648]
Prior restraints may take the form of a requirement of prior approval to publish (the “clearest form,” id. at 655); of enjoining future publication on the basis of what has been said or written before; of the imposition of specific conditions to communication (registration of lobbyists, for example); or of various kinds of secondary limitations (such as loyalty oath requirements). Id. at 655-56.
If we accept the principle that “freedom of expression is the rule and constraint the exception,” id. at 655, then we are led ineluctably to the notion that prior restraints are absolutely destructive of the essential freedoms guaranteed by the First Amendment.8 Prior restraints of even the most seemingly innocuous nature carry with them the seeds of destruction of expression; they “drive irresistably toward unintelligent, overzealous, and usually absurd administration.” Id. at 658.
Prior restraint lies at the very core of the evil against which the basic objectives of the First Amendment seek to protect. Near v. Minn., 283 U. S. 697, 713, 51 S. Ct. 625, 630, 75 L. Ed. 1357, 1366 (1931). See Police Dep‘t v. Mosley, 408 U. S. 92, 95, 92 S. Ct. 2286, 2290, 33 L. Ed. 2d 212, 216 (1972). Its perniciousness surfaces in its singular effectiveness in stifling an idea before it reaches the
IV
The First Amendment‘s abhorrence of prior restraint, a similar distaste for which is found in the New Jersey Constitution (see footnote 1 supra, at 304), is by force of logic carried into the schoolhouse along with other accoutrements of that Amendment‘s preferred status.
Tinker tells us that to justify suppression of student expression the authorities must be able to demonstrate “facts which might reasonably have led [them] to forecast substantial disruption of or material interference with school activities,” 393 U. S. at 514, 89 S. Ct. at 740, 21 L. Ed. 2d at 742, or which involved “substantial * * * invasion of the rights of others.” Id. at 513, 89 S. Ct. at 740, 21 L. Ed. 2d at 741. This reasonable forecast of disruption is a thresh-
In making that forecast there must be kept in mind the established principle that hostile audiences which threaten disruption are alone not justification for curbing a speaker. Rather, it is the audience which must be quieted. See Terminiello v. Chicago, 337 U. S. 1, 5, 69 S. Ct. 894, 896, 93 L. Ed. 1131, 1135 (1949). Thus, when the apprehended result of speech is disruption, it is only when such words create a clear and present danger, see Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470, 473-74 (1919), or when the speaker‘s words become “fighting words,” see Chaplinsky v. New Hampshire, 315 U. S. 568, 572, 62 S. Ct. 766, 769, 86 L. Ed. 1031, 1035 (1942), that expression may be suppressed.10
Application of this “forecast” rule is not without difficulty. As indicated in Note, “Prior Restraints in Public High Schools,” supra, 82 Yale L. J. at 1332:
On its face, the Tinker rule, which permits regulation to be based on a “forecast” of disorder, might seem to sanction prior restraints as a means of making that forecast. This possibility must be dismissed, however, when the relationship of the Tinker test to other tests is understood. Consider the “clear and present danger” and the “incitement” tests. They are of the same type as the Tinker test in two respects. First, each identifies a level of disorder justifying state regulation of speech. And second, each is “prediction” oriented: Neither requires the state to wait until the forbidden level of disorder has developed before taking action. But neither test notwithstanding the sanction for regulation based on prediction has been thought to authorize prior restraints as a means of disorder prediction. These tests differ from the Tinker test in the level of disorder which justifies regulation, not in the means of prediction which are appropriate. (emphasis in original)
The ease with which the test is expressed does not mask the difficulty of its application. Perhaps by this point the complexities of this general area of First Amendment law have become apparent. If not, a perusal of the lower court cases may make them so.11 As one might anticipate, they are not in complete accord. Those which follow the formula of denying regulation of content usually make the point that the prior restraints are not per se unconstitutional, and that control of the time, place and manner of speech or of written material‘s distribution is permissible. Those which uphold the concept of what they call prior restraint generally emphasize the authority of the
In order to decide the case at hаnd, fortunately one need not harmonize the discordant results referred to above. No matter how weak or strong a standard is applied — and, to be sure, without resort to what Mr. Justice Stewart has referred to as a “doctrinaire, knee-jerk application of the First Amendment,” Ginsberg v. New York, supra, 390 U. S. at 648, 88 S. Ct. at 1285, 20 L. Ed. 2d at 209 — the guidelines in question should be invalidated because of their constitutional infirmity.
First, this school rule contemplates a blanket and continuous restraint with no defined duration. My own examination of the record makes abundantly clear that there was not an acceptable basis for the restraint when first imposed, there being no more than an “undifferentiated fear or apprehension of disturbance,” found in Tinker to be “not enough to overcome the right to freedom of expression.” 393 U. S. at 508, 89 S. Ct. at 737, 21 L. Ed. 2d at 739. Whatever concern the authoritiеs may have had about possible disruption in the high school was traceable to their perceptions of general conditions in American society and polarization within the student body. This is, needless to say, a legitimate concern; but on the record in this case it is entirely unconnected with the students’ exercise of their First Amendment rights.
In addition to constituting a patent and unabashed regulation of content by banning specified “unacceptable materials,” these guidelines suffer on account of vagueness. What is material which is “denigrating to specific individuals“? What would fall into the classification of “irresponsible publications aimed at creating hostility and violence“? These terms could include mildly critical declarations to profane and violent name-calling, and would permit the systematic exclusion of ideas with which the authorities do not want to contend. It seems fair to assume that most
Likewise, there are no criteria to guide the superintendent or his assistant in determining whether to allow solicitation of funds on school grounds. Certainly such solicitation is, as a general rule, a protected activity when it is part of a presentation of political and social views, see Schneider v. Irvington, 308 U. S. 147, 60 S. Ct. 146, 84 L. Ed. 155 (1939); Murdock v. Pennsylvania, 319 U. S. 105, 63 S. Ct. 870, 87 L. Ed. 1292 (1943). And just as certainly solicitation for private profit can be prohibited in public school and measures can be taken to prevent fraudulent appeals. But there cannot be unbridled discretion in a school official to approve or disapprove soliciting, and the regulation here does not address that problem. See Schneider v. Irvington, supra; Jacobs v. Bd. of School Comm‘rs, Indianapolis, supra.
In addition there is at least one procedural defect. The regulatiоn places no limitation on the time in which an answer must be given by the administration. See Eisner v. Stamford Bd. of Educ., supra, 440 F. 2d at 810. Thus, students are likely to be hampered in spontaneous expressions, held to be a significant aspect of First Amendment rights. See, e. g., Baughman v. Freienmuth, 478 F. 2d 1345, 1348-49 (4th Cir. 1973).
Lastly, I am drawn to the conclusion that in its requirement of submission of materials for approval in advance of distribution (the “clearest form” of prior restraint, according to Emerson), the regulation in question is plainly unconstitutional. While school discipline may very well justify punishment of students for the exercise of some expressional activity, or require the termination of speech or literature distribution which is about to produce a disruption, it cannot stand as the basis for creating a system of prior approval and licensing designed to prevent the exercise of First Amendment rights. Fujishima v. Bd. of Educ., supra, 460 F. 2d 1355 at 1358. While in practice this may result in
VI
The notion that courts should not be in the business of operating public schools on a day-to-day basis, while perhaps platitudinous, is nevertheless eminently sound. By this minority opinion I do not intend to signal the desirability of this Court‘s plunging into that business. I appreciate full well the delicate nature of the difficult task confronting school officials and would only with great reluctance interfere with a good-faith effort to satisfy the problems and needs of Columbia High School. However, the regulation challenged here so directly and sharply implicates basic constitutional values as to justify the intrusion of the judicial process in a high sсhool setting to protect and maintain the integrity of those values.
Singularly appropriate is the following language from Tinker:
Any departure from absolute regimentation may cause trouble. Any variation from the majority‘s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk * * * and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society. [393 U. S. at 508-09, 89 S. Ct. at 737, 21 L. Ed. 2d at 739 (citation omitted)].
Inasmuch as I view the regulation in question as being invalid and would not permit its enforcement (much less its use as a model), I would reverse the judgment of the Appellate Division.
Fоr dismissal—Chief Justice HUGHES, Justices MOUNTAIN and SULLIVAN and Judge CONFORD—4.
For reversal—Justices PASHMAN and CLIFFORD.—2.