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August 10, 1972

Bonnie KOPPELL, by her father, et al., Plaintiffs,
Sol LEVINE, individually and in his capacity as principal of John Dewey High School, et al., Defendants

Weinstein, District Judge.

The opinion of the court was delivered by: WEINSTEIN


WEINSTEIN, District Judge.

 Pursuant to section 1983 of title 42 of the United States Code, plaintiffs seek three forms of relief: (1) an injunction against educational authorities preventing distribution of a student literary magazine on the premises of a public high school; (2) a declaration that the system of prior review of student literature employed by defendants violates the United States Constitution; and (3) damages and attorneys' fees. Preliminary relief was granted by oral order from the bench at the evidentiary hearing on the application for a preliminary injunction. Considerations related to mootness require denying a declaratory judgment. The claim for damages and attorneys' fees must be denied on the merits.


 During the relevant period plaintiffs Bonnie Koppell and Donald Margulies were students at John Dewey High School and served as editors of STREAMS OF CONSCIENCE, an annual collection of student essays and poetry. Mr. Margulies has since graduated and Ms. Koppell is now editor-inchief.

 In the academic year 1970-71 the material included in STREAMS OF CONSCIENCE was selected from fellow students' work by the editors; their faculty advisor and the chairman of the English department approved these decisions. Duplication of approximately 1000 copies of the magazine was completed by June, 1971, but distribution was postponed until the fall term because there was insufficient time to collate most of the copies.

 At the beginning of the fall term Sol Levine, the high school principal, impounded the undistributed copies of the magazine. On October 21, 1971, meeting with the editorial staff, he announced that he found the document obscene. A story written by Mr. Margulies employed four letter words as part of the vocabulary of an adolescent youth and contained a description of a movie scene where a couple "fell into bed."

 On November 12, 1971 plaintiffs appealed the principal's decision by letter to Jacob B. Zack, Assistant Superintendent of High Schools for New York City. A hearing was held on November 30, 1971. Written arguments were submitted and letters exchanged with respect to the delay in Mr. Zack's decision. An appeal dated January 19, 1972 to the Chancellor of the New York City schools was denied on January 26, 1972 on the grounds that Mr. Zack had not yet rendered his decision. In a decision dated January 27, 1972, Mr. Zack upheld the action of the principal. Plaintiffs promptly renewed their appeal to the Chancellor on February 7, 1972, and received an adverse decision on March 6, 1972. On March 7, 1972, plaintiffs appealed to Isaiah Robinson, President of the Board of Education of the City of New York. The Board upheld the earlier decision in an opinion dated April 5, 1972.


 Proceedings in this court were commenced by order to show cause on April 26, 1972. The court held an immediate evidentiary hearing and made oral factual determinations favorable to plaintiffs with respect to three critical issues: (1) lack of obscenity; (2) absence of any acceptable pedagogical reasons for suppression; and (3) unacceptable delays in administrative resolution of the dispute.

 The definition of obscenity falling outside first amendment protection may vary according to the group to whom material is directed or from whom it is withheld. Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968). Even regarding minors, however, constitutionally permissible censorship based on obscenity must be premised on a rational finding of harmfulness to the group in question. Id. at 641, 88 S. Ct. 1274.

 In Ginsberg the court upheld a New York penal statute prohibiting the sale to minors of specified types of material and paraphrasing the Supreme Court's three pronged test -- appeal to prurient interest, patently offensive to community standards and without redeeming social importance. Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966); Jacobellis v. Ohio, 378 U.S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964); Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). The statute reads in part as follows:

"(i) predominantly appeals to the prurient, shameful or morbid interest of minors, and
(ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and
(iii) is utterly without redeeming social importance for minors." N.Y. Penal Law § 484-h, McKinney's Consol. Laws, c. 40.

 The prevailing interpretation has been that Ginsberg mandated only that the courts "more broadly construe the traditional definition of obscenity when applied to cases involving . . . minors." Sullivan v. Houston Independent School District, 333 F. Supp. 1149, 1162-1163 (S.D. Tex. 1971). See also Note, The Supreme Court, 1967 Term, 82 Harv. L. Rev. 63, 124-130 (1968). For the purposes of this decision we may accept the New York penal provision as providing an acceptable definition of obscenity in cases of minors.

 Based on its examination of STREAMS OF CONSCIENCE, the testimony of expert witnesses, plaintiffs' testimony, and judicial notice, the court concluded that it was not obscene. The magazine contained no extended narrative tending to excite sexual desires or constituting a predominant appeal to prurient interest. The dialogue was the kind heard repeatedly by those who walk the street of our cities, use public conveyances and deal with youth in an open manner. It was not patently offensive to adult community standards for minors as evidenced by comparable material appearing in respected national periodicals and literature contained in the high school library. It was intended by the students involved to be a serious literary effort, and, especially with respect to Mr. Margulies, that intent was effected in a manner demonstrative of unusual talent. The entire literary project was of significant constructive social and educational importance for high school students.

 Since not obscene for high school students, STREAMS OF CONSCIENCE could not be impounded without some overriding justification based on the principal's disciplinary and educational responsibilities. Whether such a reason for censorship would ever suffice is a matter not necessary for decision since no excuse other than a claim of obscenity has been tendered. The Supreme Court has unequivocably stated, in connection with the exercise of constitutionally protected forms of speech by ...

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