The opinion of the court was delivered by: TENNEY
Plaintiffs, students and former students in several Junior and Senior High Schools in New York City, have brought this action, pursuant to 42 U.S.C. § 1983 (1970), on their own behalf and on the behalf of all others similarly situated against defendants, the Board of Education of the City of New York (hereinafter the "Board"), Harvey Scribner (Chancellor of New York City Public Schools) and the principals of plaintiffs' respective schools for violations and deprivations of plaintiffs' first amendment rights. Jurisdiction is alleged pursuant to 28 U.S.C. §§ 1343 and 2201 et seq. (1970). Plaintiffs now move this Court, pursuant to Fed. R. Civ. P. 56(a), for summary judgment, or, in the alternative, pursuant to Fed. R. Civ. P. 65, for a preliminary injunction, and, pursuant to Fed. R. Civ. P. 23, for a determination of a valid class action. Defendants, in turn have moved this Court, pursuant to Fed. R. Civ. P. 12(h)(3), to dismiss the complaint for lack of jurisdiction. For the reasons set out infra, plaintiffs' motions are denied in all respects, and defendants' motion is granted.
Before proceeding to a determination of the motions, it is necessary to review the procedural background of this action. Plaintiffs' original complaint, filed on March 18, 1971, contained the following demands for relief: (1) that the Court issue an order declaring that (a) plaintiffs and others similarly situated be allowed to distribute literature on school property so long as the distribution does not substantially disrupt normal school activities; (b) such distribution not be conditioned upon obtaining prior approval of the literature's contents; (c) plaintiffs and others similarly situated have access to and use of school facilities on the same terms that apply to other students and student groups; (2) that the Court issue an order preliminarily and finally ordering defendants to (a) cease all disciplinary action against plaintiffs or members of their proposed class for disseminating literature in a non-disruptive manner on school property; (b) expunge all entries in school records regarding such dissemination of literature; (c) cease the practice of requiring prior approval of the content of literature which plaintiffs and the members of their proposed class wish to distribute on school property; (d) permit the distribution of literature on school property as long as such distribution does not substantially disrupt normal school activities; (e) permit plaintiffs to use school facilities on the same terms as apply to other students and student groups. On March 16, 1971, plaintiffs filed a motion for summary judgment and/or a preliminary injunction.
Consideration of that motion was adjourned to November 30, 1971 by stipulation between the parties dated June 23, 1971. The terms of the stipulation obligated defendant Board to take all necessary steps to (1) enforce Circular 104 (Statement of Student Rights in New York City High Schools promulgated by the Board); (2) insure a prompt disposition of appeals taken pursuant to Circular 104; (3) assure that there would be no interference with student distribution of the Student Rights Handbook (hereinafter "Handbook") as long as such distribution does not substantially interrupt normal school activities; (4) assure that distribution of all non-official publications will be permitted in all high schools as long as such distribution does not substantially interrupt normal school activities; (5) assure that no prior approval of the contents of non-official publications will be required as a condition of their distribution; (6) assure that no entries will be made in official school records of a student's proper exercise of rights under Circular 104 and to expunge all entries theretofore made; and (7) inform all principals of high schools in Queens and the principal of Washington Irving High School in Manhattan that a copy of the stipulation be posted in a conspicuous place in their schools. If the Board were to implement all of the above provisions, the action was to be withdrawn on November 30, 1971. Upon the failure of the Board to comply with the stipulation, plaintiffs retained the right to renew their motion.
On March 22, 1972, plaintiffs noticed the examination by deposition of several defendants. On May 10, 1972 plaintiffs filed an amended complaint which differed from the original only in the prayer for relief. Plaintiffs added requests for attorney's fees and nominal damages of $500. In addition, several of the demands for declaratory and injunctive relief were modified: in some requests the word "literature" was changed to read "not obscene or libelous literature" (requests 1(a), 2(a), (b) and (d) supra) or "non-official literature" (requests 1(b) (now 1(c)) and 2(c) supra); and a new request 1(b) was added asking for a declaration that no literature be banned as obscene unless the material therein
"(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." (Plaintiffs' amended complaint at 10).
Plaintiffs next filed, on June 8, 1972, a supplemental notice of motion for summary judgment and/or preliminary injunction. While its basic purpose was to conform the earlier motion to the amended complaint, it also added a motion for an order allowing the action to proceed as a class action, pursuant to Rule 23.
On June 19, 1972, defendants filed their answer and affidavits in opposition to plaintiffs' motion. On June 28, 1972, defendants brought on by an order to show cause a motion to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3).
The amended complaint alleges that plaintiffs Siler and Silverman were students at Jamaica High School in Jamaica Queens, and that defendant Schuker was the principal of Jamaica at the time this action was instituted. In September 1970, Siler, Silverman and other students not named as plaintiffs in this action, sought permission from Schuker to distribute the New York Civil Liberties Union Student Rights Handbook. On the advice of the Principal's (Schuker's) Consultative Council, through which all requests for distribution of literature were routed, Schuker granted permission to distribute the Handbook on one morning only and only at one prescribed location outside the school building. Plaintiffs, however, made an additional distribution the next day in defiance of his order. It is claimed that the "screening" procedure employed results in a system of prior censorship which is barred by the first and fourteenth amendments to the Constitution. It is further claimed on information and belief, that distribution of the Handbook at other unnamed Queens high schools was absolutely prohibited.
The complaint further alleges that plaintiff Caplin was a student at Washington Irving High School in Manhattan and that defendant Oak was principal of Washington Irving at the time this action was instituted. Caplin, and other students unnamed as plaintiffs in the instant suit, requested and were denied permission to distribute the Handbook at locations inside the school where other literature was normally distributed. It is claimed that Oak took this action because he thought that portions of the Handbook were obscene. In addition, the complaint alleges that the distribution of other literature by Caplin and other unnamed students was restricted to an area near the main door of the school while other materials were freely sold and distributed at locations which allowed for more complete dissemination to the entire student body of Washington Irving. It is claimed that these restrictions, too, are violative of the first and fourteenth amendments to the Constitution.
Similar events are alleged to have occurred at Junior High School No. 65 in Manhattan where plaintiffs Cordero and Portalatin were students and defendant Fine was principal at the inception of the suit. Plaintiffs allege that Cordero and Portalatin requested permission to distribute both the Handbook and the Student Voice (a newspaper published by Cordero and Portalatin) and that defendant Fine refused permission on the grounds that the Student Voice contained profanities and that the Handbook was an inaccurate portrayal of Board policies. Furthermore, Fine and other unnamed school administrators refused permission for Cordero, Portalatin and others to use school facilities to work on the Student Voice and as a forum for speakers from the New York Civil Liberties Union to discuss students' rights. This, too, it is claimed, is a violation of the first and fourteenth amendments to the Constitution.
Lack of a Justiciable Controversy
The prime requisite for the maintenance of a declaratory judgment action is the existence of an actual controversy, particularly when the ...