United States Court of Appeals. Third Circuit

Transcription

1 IN THE United States Court of Appeals for the Third Circuit NO ANDREW POLICASTRO, v. Plaintiff-Appellant, THEODORA P. KONTOGIANNIS, PRINCIPAL OF TENAFLY HIGH SCHOOL, AND TENAFLY BOARD OF EDUCATION, Defendants-Appellees. ON APPEAL FROM FINAL ORDERS OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY BRIEF SUBMITTED ON BEHALF OF THE AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY AND THE STUDENT PRESS LAW CENTER AS AMICI CURIAE IN SUPPORT OF APPELLANT Of Counsel and on the brief: Jeanne LoCicero, Esq. Edward L. Barocas, Esq. THE AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY FOUNDATION Attorneys for Amici Curiae American Civil Liberties Union of New Jersey and Student Press Law Center P.O. Box Newark, New Jersey (973)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTERESTS OF AMICI...1 STATEMENT OF FACTS AND PROCEDURAL HISTORY...4 SUMMARY OF ARGUMENT...9 ARGUMENT...10 I. AS A MATTER OF LAW, THE EVENTS OF MARCH 13, 2002, DO NOT AMOUNT TO A SUBSTANTIAL DISRUPTION AS REQUIRED BY TINKER A. Tinker Contemplates That Permissible Speech Will Cause Controversy and Discussion B. The Events of March 13, 2002, Were Less Disruptive Than Those in Tinker...15 II. DEFENDANTS ENGAGED IN VIEWPOINT DISCRIMINATION BY (A) REMOVING THE MEMO INSTEAD OF DEALING WITH TEACHERS WHO RESPONDED INAPPROPRIATELY AND (B) RESTRICTING A COMMUNICATION CRITICAL OF THE UNION WHILE PREVIOUSLY PERMITTING OTHER MATERIALS, INCLUDING PRO-UNION MESSAGES A. Removing the Memo To Resolve The Controversy Instead of Dealing With Teachers Who Responded Inappropriately Amounts to a Heckler s Veto B. Defendants Engaged in Viewpoint Discrimination By Removing the Memo Because of Its Content While Permitting Other Teacher to Teacher Communications and Materials in Support of the Union..21 III. DEFENDANTS PRIOR APPROVAL POLICY IS UNCONSTITUTIONALLY VAGUE CONCLUSION...29

3 TABLE OF AUTHORITIES FEDERAL CASES Board of Regents of University of Wisconsin System v. Southworth, 529 U.S. 217, 235 (2000)...26 Child Evangelism Fellowship of New Jersey Inc. v. Stafford Township School District, 386 F.3d 514, 528 n.9 (3d Cir. 2004)...17 Clark v. Dallas Independent School District, 806 F. Supp. 116, 120 (N.D. Tex. 1992)... 14, 20, 21 Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788, 806 (1985)...22 Cox v. Louisiana, 379 U.S. 536, (1965)...26 Dwyer v. Amato, No (D.N.J.)...2 Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992)... 9, 18 Forum for Academic and Institutional Rights v. Rumsfeld, 390 F.3d 219 (3d Cir. 2004), reversed, U.S., 126 S.Ct (2005)...2 Frederick v. Morse, 439 F.3d 1114 (9th Cir. 2006)...3 Gonzaga University v. Doe, 536 U.S. 273 (2002)...3 Grove v. City of York, 342 F. Supp.2d 291, (M.D. Pa. 2004)... 20, 21 Kincaid v. Gibson 236 F.3d 342 (6th Cir. 2001)...3 Kreimer v. Morristown, 958 F.2d 1242, 1266 (3d Cir. 1992)...25 Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988)...26 Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, (1993)...22

4 NAACP v. Town of Harrison, 940 F.2d 792, 808 (3d Cir. 1991)...1 P.N. v. Clementon School District, No (3d Cir. 2006)...3 Perry Education Association. v. Perry Local Educators Association, 460 U.S. 37 (1983)...25 Pitt News v. Pappert, 379 F.3d 96 (3rd Cir. 2004)...3 Policastro v. Kontogiannis, No , 2005 WL , (3d Cir. Jan. 12, 2005)... 8, 11 Saxe v. State College Area School District, 240 F.3d 200, 211 (3d Cir. 2001)... 12, 14, 15, 20 Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d 243 (3d Cir. 2002)... 15, 26, 28 Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)... 9, 11, 12, 13, 14, 15, 17 Walker-Serrano ex rel. Walker v. Leonard, 325 F.3d 412, 416 (3d Cir. 2003)...18 West v. Derby Unified School District No. 260, 206 F.3d 1358 (10th Cir. 2000)...14 STATE CASES Abbott v. Burke, 100 N.J. 269 (1985)...19 Donato v. Moldow, No. BER-L (N.J. Super. Ct. Law Div.), affirmed, 374 N.J. Super. 475 (App. Div. 2005)...2 Joye v. Hunterdon Cent. Reg l High Sch. Bd. of Educ., 176 N.J. 568 (2003)2 L.W. v. Toms River Regional Schools Board of Education, 381 N.J. Super. 465, 487 (2005)...2

5 Rutgers 1000 v. Rutgers, 353 N.J.Super. 554 (App. Div. 2002)...24 STATE STATUTES N.J. Stat. Ann. 18A: N.J. Stat. Ann. 18A: N.J. Stat. Ann. 18A:27-1 to N.J. Stat. Ann. 18A: OTHER AUTHORITIES Aaron Caplan, Public School Discipline for Creating Uncensored Anonymous Internet Forums, 39 Willamette L. Rev. 93, (2004)..13

6 INTERESTS OF AMICI The participation of amici curiae will assist this Court in the resolution of issues of public importance. Participation of amici curiae is particularly appropriate in cases of general public interest by making suggestions to the court, by providing supplementary assistance to existing counsel, and by insuring a complete and plenary presentation of difficult issues so that the court may reach a proper decision. NAACP v. Town of Harrison, 940 F.2d 792, 808 (3d Cir. 1991). A case such as this one would benefit from the participation of amici curiae because it implicates the First Amendment rights of speakers on high school campuses to be free from censorship motivated by the content of their speech. Amici believe permitting state entities to define discomfort as disruption would vitiate the First Amendment and impermissibly chill the speech of teachers and students alike. The American Civil Liberties Union of New Jersey ( ACLU-NJ ) is a private, non-profit, non-partisan membership organization dedicated to the principle of individual liberty embodied in the Constitution. Founded in 1960, the ACLU-NJ has more than 15,500 members in New Jersey. The ACLU-NJ is the state affiliate of the American Civil Liberties Union, which

7 was founded in 1920 for identical purposes, and is composed of more than 500,000 members nationwide. The ACLU-NJ has long supported individuals First Amendment rights and opposed action that chills expression. See Donato v. Moldow, No. BER-L (N.J. Super. Ct. Law Div.) (defending anonymous website posters and owner against public officials libel suit), affirmed, 374 N.J. Super. 475 (App. Div. 2005); Forum for Academic and Institutional Rights v. Rumsfeld, 390 F.3d 219 (3d Cir. 2004) (supporting the right of associations to litigate on behalf of their unnamed members), reversed, U.S., 126 S.Ct (2005). It also has a history of supporting the free exercise of constitutional rights in public schools. See Dwyer v. Amato, No (D.N.J.) (defending right of eighth-grader to create a website that provided a forum for students to air grievances about their school); Joye v. Hunterdon Cent. Reg l High Sch. Bd. of Educ., 176 N.J. 568 (2003) (challenging high school s random drug policy for students in extracurricular activities and those who park on campus); L.W. v. Toms River Reg l Sch. Bd. of Educ., 381 N.J. Super. 465, 487 (2005) (urging the Court to extend anti-discrimination protections to school children subjected to bias-based bullying); and P.N. v. Clementon Sch. Dist., No (3d Cir. April 5,

8 2006) (upholding a student s right to obtain attorney s fees under the Individuals with Disabilities Education Act). The Student Press Law Center is a national, non-profit, non-partisan organization established in 1974 to perform legal research and provide information and advocacy for the purpose of promoting and preserving the free expression rights of student journalists. As the only national organization in the country devoted exclusively to defending the legal rights of the student press, the Center has collected information on student press cases nationwide and has submitted various amicus briefs, including to the Supreme Court of the United States and many federal courts of appeal. The Student Press Law Center has frequently defended the free expression rights of student and teachers. See, e.g., Pitt News v. Pappert, 379 F.3d 96 (3rd Cir. 2004) (defending the right of college newspapers to advertise products legal for the prevailing age group of their readers); Frederick v. Morse, 439 F.3d 1114 (9th Cir. 2006) (preserving the right of high school students to hold non-disruptive banners with messages at school activities); Gonzaga University v. Doe, 536 U.S. 273 (2002) (arguing that creating a private cause of action for disclosure of information in education records would create a chilling effect on the student press); Kincaid v.

9 Gibson 236 F.3d 342 (6th Cir. 2001) (en banc) (defending the rights of college editors to determine the content of their publications). STATEMENT OF FACTS AND PROCEDURAL HISTORY Plaintiff Andrew Policastro was at all relevant times (and remains) a teacher at Tenafly High School. (Transcript of Proceedings at 201:11-5, Policastro v. Kontogiannis and Tenafly Bd. of Educ., Civ. No (D.N.J. January 11, 2006) [hereinafter 1/11/06 Tr.].) 1 Defendant Tenafly Board of Education has the following policy regarding its mailboxes: 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. (Defendant s Ex. 1.) The policy does not place restrictions on subject matter of the flyers and does not contain criteria to define reasons for denial of approval. Dr. Kontogiannis has interpreted the policy to apply to distributions to more than half of the staff. (Transcript of Proceedings at 144:15-24, Policastro v. 1 This brief cites to the Transcripts of Proceedings dated January 10, 2006, and January 11, 2006, in Policastro, Civ. No , before the Honorable Joel A. Pisano, and the exhibits referred to therein. Plaintiff advised amici that the parties did not file a Joint Appendix and that he filed an informal brief with documents attached. He further advised that he provided the transcripts to the Court. See Certification of Edward Barocas in Support of Motion for Leave to Appear as Amici Curiae, 2.

10 Kontogiannis and Tenafly Bd. of Educ., Civ. No (D.N.J. January 10, 2006)[hereinafter 1/10/06 Tr.].) On March 13, 2002, the union representing the Tenafly teachers was to hold a ratification vote regarding a proposed contract after school. (1/11/06 Tr. at 202:4-14.) Prior to that date, the union had used the teacher mailboxes regarding union business pursuant to a contract with the district. (1/10/06 Tr. at 68:4-7.) Thirteen teachers, including the Plaintiff, drafted and signed a memo that contained questions regarding the contract negotiating team s tactics [hereinafter memo ]. (1/10/06 Tr. at 68:4-7; 1/11/06 Tr. at 202:23-203:8; Plaintiff s Exhibit 1.) The memo did not contain inflammatory language of any kind and was, in the words of Judge Pisano, pure vanilla. (1/11/06 Tr. at 208:16-18, 209:4-14.) Around 8:30 a.m., Douglas Golde, a signatory to the memo, placed a copy of the memo in each of the teachers mailboxes at Tenafly High School. (1/11/06 Tr. at 203:9-15.) At some point, Dr. Kontogiannis removed the memo from the mailboxes. (1/11/06 Tr. at 204:13-18.) Mr. Golde learned that the memos were not in the mailboxes, and returned to the mailroom to replace them in each mailbox. (1/11/06 Tr. at 203:9-15.) Dr. Kontogiannis removed the memo again and locked the mail room. (1/11/06

11 Tr. at 204:13-18.) She testified that teachers (who served as union representatives) approached her in the hall and were furious about the memo being placed in a second time and that others were offended by the contents of the memo. (1/10/06 Tr. 131:8-132:3, 135:19-24.) Dr. Kontogiannis testified that she did not invoke the prior approval policy to remove the memo but, rather, removed the memo due to the objections of other teachers: Q: So is it your testimony from before that beside the memo in front of you, plaintiff's exhibit number one, that you've never removed memos that were widely distributed in the mailboxes, from the teacher mailboxes, that you've never gone in and pulled them out? A: I have never removed anything from mailboxes, other than this document, that is correct. Q: Why did you remove plaintiff's exhibit one from the teacher mailboxes? A: I think I indicated that the reason I removed this particular document was because of the disruption that it had created. Although there was no permission granted, I did not go to the mailbox to remove it simply because there was no permission granted, to remove it. Q: Is there anything written in the memo, plaintiff's exhibit number one, is there anything written in that memo that caused you to remove it from the teacher mailboxes on March 13, 2002? A: If the content -- if you're asking if the contents of the letter, if I find this offensive in any way, personally, I don't really care

12 what the Tenafly negotiation team is sending out. However, there were other people who found this particular memo offensive and I might add that I don't think there's anything in here that is obscene or vulgar, but similar to your testifying earlier that you found in the mailbox -- A: You find the mailbox policy offensive, his Honor asked you that and you said you found this offensive. So my point is that people found this document offensive. I don't see anything in here personally that I'm offended by, but evidently other people were offended by the content of this memo. Q: What was written on the memo that caused you to have it removed from the mailboxes? A: The fact that people found -- you're asking me what was written? Q: The question is what was written? A: I have no idea what people were complaining about, what in particular. It might have been the whole thing, it might have been one sentence, I really don't know. I didn't question what part of the memo they found offensive or why it was creating a disruption. All I know is that it created a disruption in my building. (1/10/06 Tr. at 134:23-136:21.) The District Court found that as a result of the memo, some teachers were out of their classrooms discussing the contents of the memo in the hallways and that some teachers who were present in the library were not acting in a way, to use the pedagogical term, on task. (1/11/06 Tr. 204:7-205:10.) It found that the foregoing result[ed] in controversy within the Tenafly High School building. It further accepted Dr. Kontogiannis s

13 characterization of the teachers behavior as confusion and disruption to which she responded by physically clos[ing] the mail room in order to restore order to the community. (1/11/06 Tr. at 204: 9-18.) It also found that the library monitor s testimony described a significant disruption in the library. (1/11/06 Tr. at 204:21-205:2.) This disruption, however, consisted only of discussions in the hall and library and complaints to Dr. Kontogiannis. There was no evidence presented that students were aware of the existence of the memo or its contents, much less involved in any of the discussions in response to the memo. Mr. Policastro filed a complaint in the District Court of New Jersey challenging that the actions of Defendants and the prior approval policy violated his First Amendment right to freedom of expression. Policastro v. Kontogiannis, No , 2005 WL , *1 (3d Cir. Jan. 12, 2005). Ruling on Defendants Motion to Dismiss, the Honorable Judge Joel A. Pisano dismissed the complaint. Id. Mr. Policastro appealed that decision to this Court. In a decision dated January 12, 2005, this Court held that Mr. Policastro had stated claims that the removal of the memo was not reasonable and not viewpoint neutral and that the prior approval policy impermissibly extends to speech that cannot be restricted. Id. at *3

14 (citation omitted). The case was vacated and remanded for further proceedings, which resulted in the trial and order in favor Defendants. At trial, the district court determined two issues: whether there was a substantial disruption that would have justified the actions of Dr. Kontogiannis and whether the Board s prior approval policy was constitutional. (1/10/06 Tr. at 201:11-5.) After a one-day bench trial, Judge Pisano ruled in favor of Defendants on January 11, 2006, and entered an order dismissing the case. (1/11/06 Tr. at 211:24-212:4.) SUMMARY OF ARGUMENT When Defendants removed the memo from the teacher mailboxes on March 12, 2002, their actions violated the constitution. First, the discomfort and objections of other teachers to the contents of the memo do not amount to a substantial disruption as required in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), to justify restrictions on speech that is not school-sponsored and not lewd or vulgar. Second, Defendants engaged in viewpoint discrimination when the memo was removed. The principal testified that her sole reason for removing the memo was because of the reaction of other teachers. The Supreme Court has made clear that restrictions based on the reactions of others is impermissible viewpoint discrimination. Forsyth County v.

15 Nationalist Movement, 505 U.S. 123, 134 (1992). Furthermore, although school administrators may have a degree of authority to respond to student reactions to speech, the Court must take into account that Defendants were dealing with the reactions of adult employees. Because Plaintiff, as a teacher, was a member of a class entitled to use the mailboxes, Defendants also engaged in viewpoint discrmination when they removed the memo while permitting (1) other teacher to teacher communications and (2) materials in support of the union. Finally, Defendants did not invoke their prior approval policy to justify the removal of the memo. Even if they had, the policy could not justify the action because it is unconstitutionally vague. The policy has no substantive guidance on what will be approved for distribution, which has the effect of chilling speech. It also places unfettered discretion in the hands of school administrators to determine what is acceptable, therefore inviting them to engage in impermissible viewpoint discrimination. ARGUMENT I. AS A MATTER OF LAW, THE EVENTS OF MARCH 13, 2002, DO NOT AMOUNT TO A SUBSTANTIAL DISRUPTION AS REQUIRED BY TINKER. On the prior appeal in this case, this Court held that Mr. Policastro had stated a claim that the [m]emo was not within the scope of speech that

16 could be constitutionally restricted. Policastro, 2005 WL at *3. According to the Court, because the speech was not school-sponsored, the school s actions would be analyzed under the standard articulated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Id. Thus, it would only be permissible for Defendants to remove the memo if it would substantially disrupt school operations or interfere with the right of others. Id. at *2 (quoting Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214(3d Cir. 2001)). Simply put, in the current case, the level of disruption contemplated by the Tinker Court to warrant a restraint of speech did not occur. The district court found that, as a result of the distribution of the memo on the morning of March 13, 2002, teachers discussed the issues raised in the memo in the hallways and in the library. (1/11/06 Tr. at 204:7-205:10.) The court determined that because the teachers were not on task, there was a disruption and thus Dr. Kontogiannis s removal of the memo did not amount to a constitutional violation. (1/11/06 Tr. 204:7-205:10.) Tinker and its progeny, however, clearly demonstrate that talking in halls and in the library does not rise to the level of disruption that justifies a deprivation of the Plaintiff s First Amendment rights. As this Circuit has explained the Tinker standard, regulation of speech is generally permissible

17 only when the speech would substantially disrupt or interfere with the work of the school or the rights of other students. Saxe v. State College Area Sch. Dist., 240 F.3d 200, 211 (3d Cir. 2001). A. Tinker Contemplates That Permissible Speech Will Cause Controversy and Discussion. When the Supreme Court decided that the schools could restrict speech only when faced with a situation that would materially and substantially disrupt the work of the school, Tinker, 393 U.S. at 513, the record before the Court indicated that the speech at issue previously had caused controversy and disturbance in the school environment. Id. at (J. Black, dissenting). The plaintiffs each wore a black armband to protest the Vietnam War and were suspended the same day from school. Id. at 504. According to Justice Black, the record included: detailed testimony by some of [the witnesses] shows [plaintiffs ] armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older football player that other, nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics had his lesson period practically 'wrecked' chiefly by disputes with Mary Beth Tinker, who wore her armband for her 'demonstration.' Even a causal reading of the record shows that this armband did divert students' minds from their regular lessons, and that talk, comments, etc., made John Tinker 'selfconscious' in attending school with his armband. While the absence of obscene remarks or boisterous and loud disorder perhaps justifies the Court's statement that the few armband students did not actually 'disrupt' the classwork, I think the record overwhelmingly shows that the armbands did exactly

18 what the elected school officials and principals foresaw they would, that is, took the students' minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war. Id. at (J. Black, dissenting). Thus, the Court faced: (1) comments and warnings by non-protesters; (2) a practically wrecked lesson ; and (3) students whose minds were not on their class work, i.e., not on task. Id. With these facts in mind, the majority held that whatever disturbances existed did not amount to a substantial disruption that would permit a school to restrict such speech. Id. at 509. Indeed, the court acknowledged that [a]ny 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. Id. at (internal citation omitted). As one commentator has noted, the Court thus recognized that, as a result of its ruling, there may be times when speech in a school cause[s] life to deviate from its normal course. See Aaron Caplan, Public School Discipline for Creating Uncensored Anonymous Internet Forums, 39 Willamette L. Rev. 93, (2004).

19 Third Circuit cases further support the Tinker principle that a substantial disruption amounts to more than discussion and controversy. In Saxe, this Court reiterated Tinker s general rule that [speech that is not school-sponsored or lewd, vulgar or profane] may be regulated only if it would substantially disrupt school operations or interfere with the rights of others. Id. at 214. Notably, this Court spoke favorably of the decision in Clark v. Dallas Independent School District, 806 F. Supp. 116, 120 (N.D. Tex. 1992), wherein the district judge held that the school district had failed to establish that the distribution of religious material gave rise to a substantial disruption of the school s operation. Saxe, 240 F.3d at 212. This Court emphasized that opposition to speech would not satisfy the substantial disruption standard noting that, as held in Clark, [i]f school officials were permitted to prohibit expression to which other students objected, absent any further justification, the officials would have a license to prohibit virtually every type of expression. Id. (quoting Clark, 806 F. Supp. at 120). In contrast, this Court in Saxe acknowledged the type of disruption that would meet the Tinker standard. Id. Addressing a case involving a student s drawing of a Confederate flag, West v. Derby Unified School District No. 260, 206 F.3d 1358 (10th Cir. 2000), the court explained that the school district had demonstrated a concrete threat of substantial

20 disruption because the school had demonstrated a recent history of actual hostile confrontations including a fight relating to the Confederate flag. Id. (quoting West, 206 F.3d at 1366). In Sypniewski v. Warren Hills Regional Board of Education, this Court again closely examined the type of disruption sufficient to suppress speech, holding that a school could not ban a t-shirt with redneck on it because it was not sufficiently similar to the previous history of disruption related to the confederate flag and a gang called the Hicks. 307 F.3d 243, (3d Cir. 2002). The court did note that the record likely supported a ban on displays of the Confederate flag because of the same history of prior disruption. Id. at 254. Significantly, the relevant history of pervasive racial disturbances that could support the finding of a substantial disruption included racial hostility and harassment, fights, and dissemination of racially offensive materials. Id. at As these cases indicate, this circuit has consistently demonstrated that a disturbance is only substantial when it involves more than discussion and controversy. Id.; Saxe, 240 F.3d at B. The Events of March 13, 2002, Were Less Disruptive Than Those in Tinker. In the present case, the district court found less disturbance than occurred in Tinker and other cases in which restrictions on speech were

21 found unconstitutional. Indeed, it found significantly less than the type of events that would rise to a substantial disturbance as a matter of law. Specifically, the district court found that some teachers were in the halls talking and that others were in the library not on task. (1/11/06 Tr. at 204:7-205:10.) In addition, a teacher at the middle school who was on a union committee received calls and came over at the end of his work day to discuss the issue. (Id. at 205:2-10.) The district court made no findings and the record does not indicate that: (1) classroom or curricular work was disturbed; (2) students knew about or were affected by these teacher discussions; (3) teachers involved in the discussions were assigned to be elsewhere (e.g., had left their classrooms, were not on breaks). Indeed, all additional evidence described in the trial court transcript was consistent with normal responses to a moderately controversial expression of speech: (1) Dr. Kontogiannis received complaints; (2) she had some conversations with teachers who had concerns; (3) some students were briefly delayed in receiving assistance in the library; 2 and (4) there was some 2 The delay at the library, when viewed in light of the other testimony, does not amount to a greater disturbance than other types of activities at the library. (See 1/10/06 Tr. at 168:7-169:20 (testimony that teachers engage in personal celebrations in the library and that the library is sometimes closed all day for meetings)).

22 disturbance as a result of Dr. Kontogiannis s act of closing the room with the mailboxes. (Id. at 56:24-60:22; 84:12-85:20; 88:13-93:7; 162:23-164:10). The events of March 13, 2002, clearly do not amount to a substantial disruption as is required by Tinker and the law of this circuit. The discussions that took place in the halls and library were far less disruptive than the facts before the Tinker court such as the wrecked lesson and students who were not on task. These facts demonstrate that the memo did not create anything more than the discomfort of certain fellow teachers. Discomfort and objections, however, do not justify the suppression of speech. Child Evangelism Fellowship of New Jersey Inc. v. Stafford Township School District, 386 F.3d 514, 528 n.9 (3d Cir. 2004) (noting that schools cannot justify the suppression of speech merely because it is controversial. ) Therefore, Defendants impermissibly removed the memo and violated the expressional rights of Mr. Policastro. II. DEFENDANTS ENGAGED IN VIEWPOINT DISCRIMINATION BY (A) REMOVING THE MEMO INSTEAD OF DEALING WITH TEACHERS WHO RESPONDED INAPPROPRIATELY AND (B) RESTRICTING A COMMUNICATION CRITICAL OF THE UNION WHILE PREVIOUSLY PERMITTING OTHER MATERIALS, INCLUDING PRO-UNION MESSAGES. A. Removing the Memo To Resolve The Controversy Instead of Dealing With Teachers Who Responded Inappropriately Amounts to a Heckler s Veto.

23 When Dr. Kontogiannis resolved the controversy by removing the memo from the mailboxes and closing the mailroom, she sanctioned the speakers and not the teachers who acted inappropriately in response to the memo by going off task. The Supreme Court has made clear that when government actors restrict or regulate speech because of the way the listeners react to the speech, they engage in impermissible viewpoint discrimination. Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992). Listeners reaction to speech is not a content-neutral basis for regulation. Id. Here, Dr. Kontogiannis admitted that she removed the memo because teachers were offended by its viewpoint a wholly impermissible reason for removal under basic First Amendment principles and case law. It is unclear to what degree school officials must nevertheless take into account the possibility of severe student reaction to speech. 3 In this case, however, the Court must consider that the Defendants were dealing with adult employees of the school district. See, e.g., Walker-Serrano ex rel. Walker v. Leonard, 325 F.3d 412, 416 (3d Cir. 2003) (weighing speaker s 3 Even where a school is concerned with student reactions, it cannot fail to take adequate measures to protect the well-being of certain speakers (e.g., failing to discipline students who harass a gay student each time he wears a rainbow button), and then rely on that fact to preclude the speech of the victim.

24 age and maturity when balancing speaker s right to expression with school s interest in controlling behavior and fostering environment conducive to learning). School administrators, as managers, have a level of authority over their employees they do not have over their students. The New Jersey legislature has given school districts broad authority over their employees, including the authority to hire, evaluate, transfer, promote, suspend and terminate teachers. See N.J. Stat. Ann. 18A:27-1 to -12 (hire, evaluate, promote and terminate); N.J. Stat. Ann. 18A:25-1 (transfer); N.J. Stat. Ann. 18A:25-6 (suspend). School employers may discipline, and ultimately terminate, teachers for failing to conduct themselves appropriately and in accordance with school policies. See generally N.J. Stat. Ann. 18A:27-1 to -12. Generally speaking, teachers have chosen to work in a school environment and their continued employment is conditioned on their work performance. In contrast, students have, among others, a right under the New Jersey Constitution to a free and public education, see generally Abbott v. Burke, 100 N.J. 269 (1985), and an obligation to attend school. See N.J. Stat. Ann. 18A:38-25 (requiring attendance at public schools for children between the ages of 6 and 16 years). Simply put, schools cannot fire students. Teachers are adults conducting themselves in an employment

25 setting. This, combined with years of experience in a school setting (including as students themselves), should sufficiently equip them to handle both directions from their administrators and controversial ideas. Dr. Kontogiannis, as the senior administrator at Tenafly High School, had the authority to deal with any disturbance among employees who reacted inappropriately to the plain vanilla memo. The district court did not find that Mr. Policastro or any of the other signatories to the memo acted inappropriately or interfered with school operations. Dr. Kontogiannis s actions to remove the memo were aimed at dealing with those who read the memo and in so doing, she engaged in viewpoint discrimination. As an example, a viewpoint neutral response to teachers who may have had discussions loudly or at inappropriate times and/or places, could have been to direct the offending teachers to resume their normal work. As discussed above, when the Saxe court examined Clark v. Dallas Independent School District, it noted that the only disruption came from individuals responding to the content of the religious material which, by itself, did not justify the prohibition on the material. 240 F.3d at 200 (citing Clark, 806 F. Supp. at 120). In Grove v. City of York, 342 F. Supp.2d 291, (M.D. Pa. 2004), the court found that police officers discriminated based on viewpoint and violated the constitutional rights of protesters when

26 the police confiscated their pictorial signs of fetuses. The court rejected the police s argument that the effect of the signs on the crowd was sufficient to discriminate based on the content of the speech: Put simply, there is no heckler s veto to the First Amendment. Thus, Defendants argument that they were concerned with the crowd s reaction to the content of Plaintiffs signs does not shield Defendants from the court s finding that their actions were content-based. Id. at 303. Dr. Kontogiannis reacted in a similar way as the school district in Clark and the York police officers: she removed the memo because its viewpoint was objected to by others, here from other adult employees. The contents of the memo had motivated teachers to discuss the issues raised. Dr. Kontogiannis explicitly sought to placate objectors and stifle these discussions. (1/10/06 Tr. 138:21-140:22.) Penalizing the message and not the disruptors is viewpoint discrimination and violates Plaintiff s expressional rights. B. Defendants Engaged in Viewpoint Discrimination By Removing the Memo Because of Its Content While Permitting Other Teacher to Teacher Communications and Materials in Support of the Union. The removal of the memo is unconstitutional based on the manner Defendants have applied it in this matter. Defendants have agreed in a contract with the union to permit mass distributions regarding union

27 business. (1/10/06 Tr. 68:2-23.) It was the particular viewpoint on union matters in the memo, and not the subject matter itself that prompted the removal. (1/10/06 Tr. 134:23-136:21.) Such action is unconstitutional. As this court noted, the teachers mailboxes in Tenafly High School are non-public forums. Policastro, 2005 WL at *2. As such, they may be regulated based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral. Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, (1993). Thus, speech may be excluded if speakers address a topic not encompassed within the purpose of the forum or if the speaker is not a member of the class for whom the forum was created. See Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788, 806 (1985). Here, there is no doubt that Plaintiff, as a teacher at the high school, was a member of the class for whom the forum was created. The district court specifically found that Defendants mailbox policy encouraged communications among teachers. (1/11/06 Tr. 210:3-9.) Thus, the removal of the memo would have been valid only if it was of a subject matter that was not permitted by the regulation.

28 The record is also clear that there was no regulation that limited the subject matter of teacher to teacher communications. On its face, Defendants policy indicates that the teacher mailboxes should be used for school-related business, but at trial, Defendants stipulated that teachers at Tenafly High School regularly use the mailboxes to communicate with each other about non-school-related business without penalty. (1/10/06 Tr. 125:13-23, 25:2-21.) Counsel for Defendants argued, and the district court agreed, that they encouraged teachers to use the mailboxes to communicate with one another. (1/10/06 Tr. 120:15-23, 1/11/06 Tr. 210:3-9.) Furthermore, Dr. Kontogiannis testified that she did not invoke Defendants mailbox policy to remove the memo. Equally clear is the fact that Defendants removed the memo from the mailboxes precisely because of its viewpoint. The district court found that the memo was created because of concerns regarding the state of union negotiations. (1/11/06 Tr. 201:10-11, 202:23-203:8.) On this record, Defendants actions amount to viewpoint discrimination for two distinct reasons. First, because Defendants are impermissibly distinguishing between types of teacher to teacher communications about non-school related business. Specifically, Defendants have not restricted any other teacher to teacher communication except for Plaintiff s memo raising

29 concerns about union negotiations. Second, Defendants specifically have permitted the mailboxes to be used for the subject matter of union business by agreeing to such terms in a contract with the union. (1/10/06 Tr. 68:2-23.) Because Defendants have regulated the forum to include a particular subject matter union business, they cannot prohibit a particular viewpoint about such business. Recently, the Appellate Division of the New Jersey Superior Court also made clear that such viewpoint discrimination is unconstitutional. Rutgers 1000 v. Rutgers, 353 N.J. Super. 554 (App. Div. 2002). In Rutgers 1000, the Appellate Division held that, since Rutgers Alumni Magazine permitted advertisements for Big East sporting events, it could not deny the Rutgers 1000 organization the right to advertise regarding its position that Rutgers should remove itself from Division I sports. Id. Similarly, once Tenafly High School opened its mailboxes to pro-union literature, it could not deny the right of other accepted mailbox users to present an alternative view on the same subject. Therefore, because Mr. Policastro is permitted to use the mailbox, and because he was engaging in a teacher to teacher communication regarding a

30 permissible subject matter, Defendants removal of the memo discriminated based upon viewpoint. 4 III. DEFENDANTS PRIOR APPROVAL POLICY IS UNCONSTITUTIONALLY VAGUE. Defendants prior approval policy was not invoked as the reason for the memo s removal. (1/10/06 Tr. at 134:23-135:11.) Indeed, the policy could not justify the removal as the policy itself is impermissibly vague, and therefore, unconstitutional. First, its terms do not describe what types of materials will be denied. Second, it places unfettered discretion in the hands of school administrators to determine what material is suitable. This discretion could easily lead to viewpoint discrimination, as the events of March 13, 2002, demonstrate. This Court has examined regulations for vagueness to ensure that they are applied in a fair and non-discriminatory manner. See Kreimer v. Morristown, 958 F.2d 1242, 1266 (3d Cir. 1992). Regulations are void for 4 This case is distinguishable from the restrictions found constitutional in Perry Education Assn. v. Perry Local Educators Assn., 460 U.S. 37 (1983). In that case, the Supreme Court dealt with a challenge from a rival union who sought equal access to teacher mailboxes as the union representing the teachers. Id. at The Court held that the school s exclusive access policy, as agreed to in its contract with the union, that limited certain outside organizations did not discriminate based on viewpoint because the mailboxes were a nonpublic forum, i.e., the mailboxes were a forum limited by speaker identity. Id. at In contrast, here Mr. Policastro is a party who is entitled to use the mailboxes.

31 vagueness when they leave speakers guess[ing] as to the contours of its proscriptions and without fair notice of the regulation s reach. Sypniewski, 307 F.3d. at 266. As a result, speakers steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked. Id. (citation and internal quotation marks omitted). In addition, regulations may be void for vagueness if they permit arbitrary and discriminatory enforcement because of the absence of adequate standards to govern enforcement. Id. A government system of permitting or inhibiting speech will be unconstitutionally vague where it permits viewpoint discrimination. See Board of Regents of University of Wisconsin System v. Southworth, 529 U.S. 217, 235 (2000) ("It is unclear to us what protection, if any, there is for viewpoint neutrality in this part of the process. To the extent the referendum substitutes majority determinations for viewpoint neutrality it would undermine the constitutional protection the program requires"). The prior approval policy, like a municipal demonstration permit ordinance, is a prior restraint on speech. As in permit cases, determining whether particular conduct is lawful may not be left to the subjective perception of a single individual. See Cox v. Louisiana, 379 U.S. 536, (1965); see also Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 757 (1988). Because a school administrator alone determines on

32 a case-by-case basis what material will be approved, Tenafly s policy engages in a similar prior restraint. Defendants policy requires staff members wishing to distribute flyers/announcements, etc. (via the mailboxes) [to] have prior approval from the principal or vice-principal. (1/10/06 Tr. 17:1-17.) By its terms, it includes any flyer or announcement inserted into a mailbox. Dr. Kontogiannis, however, testified that she has interpreted the policy to apply only to distributions of material to more than half of the staff. 5 (1/10/06 Tr. 144:15-24.) The policy does not advise teachers as to what types of materials are and are not permissible. They only know that they need to receive approval when they elect to communicate via mailboxes to more than half of the staff. This numerosity threshold gives no substantive guidance as to what type of materials will be approved or denied. Hence, teachers may feel chilled from seeking permission. (1/11/06 Tr. 207:2-11.) Moreover, the policy, by its lack of substantive guidance, gives the administrators unlimited discretion to deny approval for any reason or no reason, including as this case demonstrates viewpoint. This situation not only permits, but forces the administrators to use their subjective discretion as to what materials to approve for distribution. It therefore invites these 5 This unwritten term of the policy presumably could change at any point.

33 individuals to enforce the policy in a way that discriminates based on viewpoint. Sypniewski, 307 F. 3d. at 266 ( A vague rule may authorize and even encourage arbitrary and discriminatory enforcement by failing to establish minimal guidelines to govern enforcement. ) (internal citations and quotation marks omitted). Because the policy has no subsantive guidance and places subjective control in the hands of school administrators, it is unconstitutionally vague.

34 CONCLUSION Based on the foregoing reasons, ACLU-NJ and the Student Press Law Center respectfully request the Court to reverse the decision of the trial court and find that Defendants violated Mr. Policastro s rights guaranteed by the First Amendment and that the prior approval policy is unconstitutional. Dated: April 21, 2006 Newark, New Jersey Respectfully submitted, /s/ Edward L. Barocas EDWARD L. BAROCAS American Civil Liberties Union of New Jersey Foundation P.O. Box Newark, NJ (973) Of Counsel and on the brief: Jeanne LoCicero, Esq. Attorneys for Amici Curiae American Civil Liberties Union of New Jersey and Student Press Law Center

35 CERTIFICATION OF BAR MEMBERSHIP I, Edward L. Barocas, certify that I am an attorney in good standing of the bar of this Court. Dated: April 21, 2006 Newark, New Jersey /s/ Edward L. Barocas EDWARD L. BAROCAS American Civil Liberties Union of New Jersey Foundation P.O. Box Newark, NJ (973) Attorneys for Amici Curiae American Civil Liberties Union of New Jersey and Student Press Law Center

36 RULE 32(a)(7) CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,227 words, excluding parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). The brief has been prepared in a proportionately spaced typeface using Microsof Word 2002 in a 14-point Times New Roman font. Dated: April 21, 2006 /s/ Jeanne LoCicero Jeanne LoCicero, Esq. Attorney-at-law CERTIFICATIONS PURSUANT TO LOCAL APPELLATE RULE 31.1(c) I certify that this brief complies with L.A.R. 31.1(c) in that prior to it being ed to the Court today it was scanned using the following software for virus detection and found to be free from computer viruses: Computer Associates etrust Anti-Virus software, product version , updated on April 19 and 20, I further certify that the paper copies of this brief and the text of the PDF version of this brief filed electronically with the Court today are identical. Dated: April 21, 2006 s/ Jeanne LoCicero Jeanne LoCicero Attorney-at-law

37 ATTORNEY S CERTIFICATION OF SERVICE I, Edward L. Barocas, am an attorney licensed in the State of New Jersey. I am the legal director with the American Civil Liberties Union of New Jersey Foundation, attorneys for the American Civil Liberties Union of New Jersey ( ACLU-NJ ) and the Student Press Law Center ( SPLC ). On the 25th day of April, 2006, I caused to be served two copies of the within Brief Submitted on Behalf of the American Civil Liberties Union of New Jersey and the Student Press Law Center as Amici Curiae In Support of Appellee by overnight delivery via United Parcel Service upon counsel for the represented party in this action and upon Andrew Policastro, who is appearing pro se in this action, at the following addresses: Arthur R. Thibault, Jr. Andrew Policastro Apruzzese, McDermott, Mastro & Murphy 59 Day Avenue 25 Independence Boulevard Tenafly, New Jersey P. O. Box 112 Liberty Corner, New Jersey Pursuant to 28 U.S.C. 1746, I certify under the penalty of perjury that the foregoing is true and correct. Executed on: April 25, 2006 /s/ Edward L. Barocas Edward L. Barocas