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May 2, 1979

Donna THOMAS; John Tiedeman, by and through his parents Mr. & Mrs. Henry Tiedeman; David Jones, by and through his parents Mr. & Mrs. John E. Jones; Richard Williams, by and through his parents Mr. & Mrs. Arthur F. Williams, Plaintiffs,
BOARD OF EDUCATION, GRANVILLE CENTRAL SCHOOL DISTRICT; William E. Butler; Don L. Miller; Frederick J. Reed; Beverly Tatko; Robert L. Flower; Terry M. Knipes; Walter Perry, III; Frank P. Villano; Donald Binck; Marie Vanderminden; and Theresa McCauliffe; each Individually and in their official capacities, Defendants.

The opinion of the court was delivered by: FOLEY


JAMES T. FOLEY, Chief Judge.

In the hearing held on a motion for a preliminary injunction in this civil rights action, it was testified that there was nothing to do in Granville in the dreary winter months and certain junior and senior students in Granville Junior-Senior High School decided to start a newspaper. Granville is a rural community of about 3,000 population in Washington County, New York. One student testified there was no entertainment for them, and the composition, publication and distribution of a newspaper or magazine seemed to be the proper outlet for their energies. Although there was no testimony concerning the subject, it must be assumed the historic village of Granville and its high school had the usual high school sports, dances, and academic activities. Of course, the rugged winter temperature invited ice fishing, ice skating, skiing, tobogganing, and other outdoor activities of that kind.

 The students, however, persisted in their newspaper idea, and the result was a xeroxed 13-page newspaper entitled "Hard Times". Plaintiffs' Exhibit 1 in evidence at the hearing. If the witner was becoming too dull in Granville, the distribution and sale of this newspaper, with its complete sexual format and content, on the streets and places near the high school to its students, changed that dullness and stirred the small village from any witner slumber it may have been in. The newspaper gives the best description of the content with the slanted banner across the front page "Uncensored -- Vulgar -- Immoral!!!". The front page notes in large caps "Special Editorial" -- and that reference is to the next page: "EDITORIAL: A Close-up on Masturbation", a detailed writing in blunt wording. There is no need to describe the remainder of the content except to say that throughout it follows along the same line of expression. Anyway, the content immediately upset parents of students and the school authorities, as being shocking, vulgar, and filthy. It should be noted that this was also the initial reaction of the parents themselves of the student plaintiffs. The outgrowth of all this was the imposition of disciplinary measures after careful consideration and interviews by the school authorities. The plaintiffs challenge this action of the school authorities, claiming that their First Amendment rights of free speech had been violated in the suppression of this unauthorized newspaper.

 It is hard for my mind to accept with equanimity the proposition that this high school adventure, similar to the expected high school pranks that often occur, rises to the stature of a federal constitutional case. The consequences of the students' conduct, and it should hardly be characterized as entertainment, was to be witnesses in a federal civil action here in Albany, at which the school administrators and teachers were compelled to take the witness stand as well as to be deposed at the Granville Junior-Senior High School. A concomitant result was the students' absence from their regularly scheduled classes; and, the administrators' absence from their important educational and administrative responsibilities. Moreover, the case attracted newspaper and television coverage.

 The problem, in my judgment, seems particularly one for solution within the public education system of New York which is noted for its safeguards and reviews in matters of this kind. I am confident that as the years go on, this escapade will be the prime topic of discussion at class reunions.

 In Goss v. Lopez , 419 U.S. 565, 589-590, 95 S. Ct. 729, 744, 42 L. Ed. 2d 725 (1975), the dissenting opinion of Justice Powell noted:

 [This] Court has explicitly recognized that school authorities must have broad discretionary authority in the daily operation of public schools. This includes wide latitude with respect to maintaining discipline and good order.... Such an approach properly recognizes the unique nature of public education and the correspondingly limited role of the judiciary in its supervision.

 The limited role of the judiciary in the supervision of public education, therefore, arises only in those instances where the resolution of conflicts in the administration of a school system directly implicates fundamental constitutional values. Tinker v. Des Moines School District , 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). See generally, Ingraham v. Wright , 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977).

 In this action, the parties have thrust this Court into the educational "thicket" as a consequence of disciplinary action taken against four high school students arising out of their preparation and distribution of "Hard Times," an unauthorized, or so-called underground ten-page newspaper or magazine which is, at best, a crude attempt to create sensational high school news in a small rural high school, and, at worst (at least in the eyes of the defendants), a parently offensive and vulgar attempt to enter the high school newspaper world. The plaintiffs through their counsel argue that the disciplinary measures imposed upon them by the school authorities violate their constitutional rights under the First and Fourteenth Amendments.

 The plaintiffs, Donna Thomas, John Tiedeman, David Jones and Richard Williams, juniors and senior in Granville Junior-Senior High School, three of whom are represented by their parents because of their minority, commenced this action for declaratory and injunctive relief by the filing of a complaint on February 6, 1979. That complaint also sought temporary injunctive relief. The defendants are: the Board of Education of the Granville Central School District; the members of the Board; William E. Butler, Principal of the Granville Junior-Senior High School; Frederick J. Reed, the Assistant Principal; and, Donald L. Miller, District Principal for the Granville Central School District.

 Plaintiffs base their claim for relief upon 42 U.S.C. § 1983, and, its jurisdictional counterpart, 28 U.S.C. § 1343(3). At present, there is no basis for entertaining a claim for relief directly under the First Amendment with 28 U.S.C. § 1331(a) as a jurisdictional predicate.See Turpin v. Mailet , 591 F.2d 426 (2d Cir. 1979). See also Lake Cosuntry Estates, Inc. v. Tahoe Regional Planning Agency , 440 U.S. 391, 396, 96 S. Ct. 1171, 1175, 59 L. Ed. 2d 401 (1979).

 A chronological recitation of the proceedings in this Court and the factual background is set forth:

 This Court heard oral arguments on the application for temporary restraining order on Tuesday, February 6, 1979. At that time, the Court denied injunctive relief as it was sought regarding the discipline imposed upon the students; namely, the five-day suspension, of which only one day remained at the time of the hearing, and, the segregation of the students from the remaining student body in separate study halls for the month of February. The Court did enjoin the school officials from directing the students to write an essay on the subject "Potential Harm to People Caused by the Publication of Irresponsible and/or Obscene Writing." Finally, the Court signed an order to show cause for a hearing upon a preliminary injunction to be held February 21, 1979.

 On Friday, February 9, 1979, plaintiffs sought leave of the Court to take depositions of certain defendants. This motion was made returnable on Monday, February 12, 1979, at which time the Court granted plaintiffs' motion as well as defendants' oral cross-motion for leave to take the depositions of certain plaintiffs. Those depositions were taken at the Granville Junior-Senior High School on February 14 and 15, 1979.

 At the February 21, 1979, Court Hearing, plaintiffs called eight witnesses, the defendants four witnesses, those being the principal defendants in the action. The only issues addressed at the hearing centered upon the First Amendment inasmuch as plaintiffs' first amended complaint, filed February 20, 1979, specifically withdrew any claims in the original complaint based upon the Due Process Clause. See Goss v. Lopez, supra, 419 U.S. 565, 95 S. Ct. 729.

 As gleaned from the supporting depositions, affidavits and testimony of the parties at the hearing, these essential facts were shown not to be disputed.

 The students, Donna Thomas, John Tiedeman, David Jones and Richard Williams, conceived of the idea of creating a satirical and racy publication during November and December 1978. By their own testimony, it was their purpose to create something analogous to the National Lampoon, a monthly magazine of national circulation, the content of which is heavil weighted toward spoofs of sexual behavior. Enthused with this basic conception, the four students began discussing the subject during their after school study hours. These "thought" sessions usually were conducted in the class-room of one of their teachers, George Mager; and, continued throughout most of January 1979.

 During the course of their discussions, planning and formulation of the publication, these students also solicited ideas and assistance from their fellow students. As the newspaper, eventually known as "Hard Times," approached the stage of definite publication, portions of the new journalistic endewavor were carried out on school grounds with the admitted use of school property. That is, it is clear in the record that some of the writing, typing, editing and ultimately the storing of the paper occurred within the school.

 Moreover, there is no dispute, and I find that George Mager's role in his contact with the newspaper effort was superficial to a great extent and limited largely to matters of correct punctuation, spelling and grammatical usage. He was aware of some parts of the content, and did not see the completed issue of the paper that was sold to the students on streets and locations near the school. It is noted and found that Mr. Mager advised the students that certain items could lead to trouble and suggested that they be deleted, especially the Editorial. In all fairness to Mr. Mager, there is evidence that he never really thought that any publication would eventually materialize; and, when it did become a reality, as noted, he was unaware of its final content. He did allow the paper to be stored in his classroom, a commitment he had made and did not withdraw upon learning that the paper was a reality. Professor Mager did admit he may have been guilty of poor judgment, and it is apparent he did not perceive the commotion that was to arise.

 The record also discloses that the photocopying of "Hard Times" was done at the office of a local manufacturing company, presumably by a friend of Donna Thomas.Approximately one hundred issues were photocopied and stapled.

 There is some evidence in the record that Mr. Mager advised the students to sell "Hard Times" away from school; and that, in fact, approximately seventy copies were sold to students at Stewart's, a nearby store. There is some evidence that some issues may have been sold on school grounds. It is noted that the students testified that it was their policy not to sell "Hard Times" because of its own description of being vulgar to students in the seventh and eighth grades because they probably would not understand the attempted satirical nature of the contents. There is no evidence that any seventh or eighth graders purchased or were found possessing an issue of the paper, although the junior and senior high school students share the same school facilities.

 The time frame for distribution of "Hard Times" was January 23-26, 1979. Inevitably, a copy of "Hard Times" surfaced in the school building on Wednesday, January 24. The paper had been taken from a ninth grade student by a teacher, who, at the end of the school day, brought it to the office of the high school principal, defendant Butler.

 Upon reading it, the immediate response of Dr. Butler was to speak privately with District Principal Miller. This conversation took place that same afternoon of January 24; and, it was decided then that they would wait for further copies to appear as well as to monitor the photocopying equipment in the school's administrative offices. No further immediate action was taken by defendants Butler and Miller in their capacities as Principal and School Superintendent due to the fact that, at this time, they had no knowledge of the source of "Hard Times;" and, more importantly, school-wide examinations were scheduled for Thursday and Friday, the administration of which would occupy most of their attention and energies, and should not be disrupted.

 Although defendants Butler and Miller then were without knowledge as to the source of "Hard Times," defendant Reed, the Assistant Principal, knew its origins on January 24, the day on which the first issue showed up in the school. He could do so because of two events which took place approximately one week prior to the appearance of the paper.

 The first such episode involved a brief conversation with Mr. Mager wherein the latter asked defendant Reed whether he had heard any rumors about a student publication. At that time, Mr. Mager disclosed the names of three students -- Tiedeman, Williams and Jones -- ...

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