The opinion of the court was delivered by: FRANKEL
This case arises from an abuse of official power incident to the litigation concerning bilingual education entitled Aspira of New York, Inc. v. Board of Education of City of New York, D.C., 72 Civ. 4002. The latter controversy, though not altogether concluded, was brought to the point of a seemingly constructive consent decree on August 29, 1974. In this case, having ended (under a court order) a blatant violation of first amendment rights, defendants resist either a meaningful assurance from themselves or a declaration from the court to bar similar transgressions.
When plaintiffs in the Aspira case moved for summary judgment, they confronted apparent issues as to the character of bilingual instruction then being offered and its adequacy to serve Hispanic students who spoke little or no English. They sought affidavits on these subjects from principals, teachers, and others in the City school system involved or familiar with existing programs of the kind in question. The plaintiffs herein, and evidently others, were ready and willing to give their knowledge in this fashion.
On March 28, 1974, however, there issued from the office of the defendant Chancellor a so-called "relay" for which "chilling" may be too balmy a word. Transmitted to all the schools, this communication said:
"TO: All Community School Board Members and all Superintendents
"FROM: Henrietta Percell, Executive Assistant to the Chancellor
"RE: Relay for Transmission to all Schools
"No teacher or principal is to give any affidavits, statements, other opinions or materials in answer to any request made by the counsel to the plaintiffs in the Aspira case. To give such information on the Chancellor to the plaintiffs is a violation of Section 1106 of the New York City Charter and may, if the information is given knowingly constitute a misdemeanor. If any person is requested to give such information, that person should contact the Corporation Counsel assigned to this case, Michael Cecere, at 566-6377."
The charter provision cited in, and claimed to support, that warning reads in pertinent part:
"(1) No * * * officer, employee or person whose salary is payable in whole or in part from the city treasury
"e. shall * * * give opinion evidence against the interests of the city in any litigation to which the city, or an agency is a party * * *."
Violation of this provision is, as the relay sternly reminded, punishable as a misdemeanor.
Plaintiffs promptly brought the instant case seeking to enjoin the continuation or execution of the threats in the relay and asking a declaration that Charter § 1106(1)(e) is unconstitutional on its face and as applied. With the institution of the action, plaintiffs moved for a preliminary injunction. When both sides appeared in court on March 28, 1974, to deal with the initial order to show cause, counsel for the defendants argued in support of the power to impose the rule of silence proclaimed in the relay. The court observed that the Federal Constitution might require a different conclusion. Between the date when the temporary restraint issued and the return date, April 2, 1974, defendants neither rescinded the relay nor acted otherwise to affirm the pertinent rights of the thousands of City teachers and principals under the first amendment. On the return day, however, counsel for defendants announced that they had "reconsidered" and concluded that § 1106 of the Charter should not be deemed after all to authorize the gag proclaimed by their relay. Upon this statement, the ...