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Curley v. Philo

July 14, 2009


The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge


Currently before the court is defendants Virginia Philo ("Philo") and The Board of Education of The South Glens Falls School District's (the "School District") motion for summary judgment (Dkt. No. 30), as well as plaintiff Timothy Curley's ("Curley") cross-motion for partial summary judgment (Dkt. No. 38). Following review of the briefs in support thereof and the record on the matter, the court grants the School District's motion and denies Curley's motion.


The following relevant facts are undisputed. Curley is a resident of South Glens Falls, New York, and Philo is a member of the Board of Education of the School District. (See Plaintiff's Statement of Material Facts, Dkt. No. 38-32 at ¶¶1-3.) In November 2006, at a school banquet, a slide show was presented that Curley found to be inappropriate. (Id. at ¶ 4.) In particular, Curley found one slide used in the presentation to be sexually suggestive and another racially suggestive. (Id. at ¶¶ 5-7.) Curley notified the high school principal and the matter was referred to the Superintendent's office. (Id. at ¶¶8-9.) In addition, the possible replacement for the high school girls' soccer coach was also another issue of concern for Curley. (Id. at ¶¶ 10-11.)

On February 12, 2007, the Board of Education held a meeting. (Id. at ¶ 12.) At this meeting, individuals and students spoke on behalf of the current girls' soccer coach and Curley spoke of his concerns regarding the school banquet slide show. (Id. at ¶¶ 18-20.) At the meeting, however, no action was taken regarding either the coach or the banquet slide show. (Id. at ¶ 21.) On March 19, 2007, at a Board meeting, Philo delivered and read a letter to Curley. This letter stated:

We are the attorneys for the South Glens Falls Central School District. Over the last several weeks you have been engaging in extensive and improper communications with employees and officers of the school district. This activity is disrupting the school community. It must cease immediately. Therefore, any further communications in regard to the district should be directed to me. (Id. at ¶¶ 24 and 28.) Superintendent McCarthy stated the improper communications had to do with Curley's comments in the February 2007 meeting and the fact that Curley had sent comments to the media. (See Ex. F at 36-37, Dkt. No. 30-9.)

At the beginning of the March 2007 meeting, Philo read a statement which restricted comments on the issues of the school banquet slide show and the girls' soccer coach. (See Defendants' statements of Material Facts at 106, Dkt. No. 30-21.) When Curley attempted to speak about those issues at the meeting, Curley was advised those issues were not for discussion and, eventually, he was escorted out the meeting. (See Plaintiff's Statement of Material Facts, Dkt. No. 38-32 at ¶¶ 47-48.)

Curley brought this action, pursuant to 42 U.S.C. § 1983, against Philo and the School District claiming they violated his First Amendment rights to free speech. Philo and the School District moved for summary judgment and Curley responded with a cross-motion for partial summary judgment.


Summary judgment may be granted only if "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). To defeat a summary judgment motion, the nonmoving party must show sufficient evidence to create a genuine issue of material fact. Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004). However, the court must draw all facts and inferences in the light most favorable to the plaintiff. LaTrieste Rest. and Cabaret Inc. v. Vill. of Port Chester, 40 F.3d 587, 589 (2d Cir. 1994).

In determining whether a state actor violated a plaintiff's First Amendment free speech rights, the court considers: (1) whether the plaintiff's speech is protected by the First Amendment; (2) the nature of the forum; and (3) whether defendant's justifications for limiting the plaintiff's speech satisfy the requisite standard. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985).

Here, the parties do not dispute that Curley meets the first prong of the test, i.e., that his speech was protected. Rather, the parties dispute the nature of the forum. Courts "classify fora for expression in four categories that, correspondingly, fall along a spectrum of constitutional protection." Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 625-26 (2d Cir. 2005). "The first, and most speech-protective forum is the traditional public forum." Id. (quotations omitted) "This category is comprised of those places-streets, parks, and the like- which have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Id. "In these fora, [c]ontent-based restrictions will be upheld only if they are necessary to serve a compelling state interest and are narrowly drawn to achieve that end." Id.

"The designated public forum and its subset, the limited public forum, fall next along the spectrum." Id. "A designated public forum is a place not traditionally open to public assembly and debate- a public school, for example- that the government has taken affirmative steps to open for general public discourse." Id. "Speech in a designated public forum is entitled to the same constitutional protection as that extended to expression in a traditional public forum, so long as the state continues to designate the forum for such use." Id. "A limited public forum, instead, is created when the State opens a non-public forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects." Id. "In limited public fora, the government may make reasonable, viewpoint-neutral rules governing the content speech allowed. Id.

"Garnering the lowest level of scrutiny along the forum analysis spectrum is the non-public forum, which is neither traditionally open to public expression nor designated for such expression by the State." Id. "Restrictions on speech in a ...

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