Appeal from a judgment (denominated order) of the Supreme Court, Livingston County (Robert B. Wiggins, A.J.), entered July 29, 2009 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.
It is hereby ORDERED that the judgment so appealed from is affirmed without costs.
Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination denying his request to set up a "truth-in" table at Geneseo High School (School) on "college days," when representatives of colleges, universities and the military are allowed into the School for recruitment purposes. The primary purpose of petitioner's proposed "truth-in" table was to provide students with negative information about military service that petitioner believed they should consider before deciding whether to enlist. Petitioner also sought to present materials about peace-orientated organizations, such as AmeriCorps and the Peace Corps, and to observe military recruiters while in the School. Although respondents denied petitioner's request for access to the School, they agreed to post in the guidance office a two-page document provided by petitioner entitled "Ten Points to Consider Before You Sign a Military Enlistment Agreement," a copy of which is also given by the School to every student who requests information about military service. Petitioner thereafter commenced this proceeding alleging, inter alia, that respondents violated his right of free speech under the state and federal constitutions by refusing to allow him to participate in college days. Supreme Court dismissed the petition, finding that respondents appropriately limited School access to "groups or schools with specific programs," which did not include petitioner, and that petitioner had no right to observe military recruiters. On a prior appeal, we reversed the judgment and remitted the matter for further development of the record, which we concluded "lack[ed] sufficient information to enable a court to determine whether the determination was arbitrary and capricious or whether petitioner's constitutional rights were violated" (Matter of Macula v Board of Educ., Geneseo Cent. School Dist., 61 AD3d 1338). Upon remittal, the record was supplemented primarily by petitioner, who submitted to the court copies of materials he intended to present to students, and the court again dismissed the petition. We affirm.
We note at the outset that, although petitioner advances numerous contentions on appeal, he asserted only two causes of action. The first cause of action alleges that the denial of petitioner's request to set up a "truth-in" table violated petitioner's constitutional right of free speech. According to petitioner, respondents engaged in viewpoint discrimination by allowing military recruiters into the School but prohibiting him from setting up a "truth-in" table. The second cause of action alleges that the denial of petitioner's request to observe the military recruiters in the School is arbitrary and capricious. We conclude that neither cause of action has merit.
With respect to the first cause of action, petitioner concedes that the School is a nonpublic forum in the context of its college days. Respondents may therefore control access to the School "based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral" (Cornelius v NAACP Legal Defense & Educ. Fund, Inc., 473 US 788, 806; see Perry Educ. Assn. v Perry Local Educators' Assn., 460 US 37, 49; Peck v Baldwinsville Cent. School Dist., 426 F3d 617, 633, cert denied 547 US 1097). In our view, the reasons offered by respondents for denying petitioner's request to set up a "truth-in" table at the School on college days are reasonable. When respondents denied his request, they explained to petitioner that access to the School on college days is limited to representatives of post-secondary academic institutions and the military, and petitioner is not a representative of any college or university or affiliated with the military. In addition, it is apparent that petitioner's primary purpose in appearing on college days is to provide students with negative information about military service, and respondents reasonably seek to avoid the potential for disruption that may arise from granting access to those who seek to discourage students from pursuing a particular post-secondary option. To the extent that petitioner also seeks to provide students with information about AmeriCorps and other similar organizations, respondents have asserted that he is free to do so during career day, when students are presented with information about particular occupations and careers.
Contrary to the contention of petitioner, respondents' determination to allow military recruiters but not him into the School on college days was viewpoint neutral. Respondents allege without contradiction that the reason they allow military recruiters into the School on college days is that they are compelled to do so by the federal No Child Left Behind Act of 2001 ([NCLB] 20 USC § 6301 et seq., as added by Pub L 107-100, 115 US Stat 1425). Pursuant to that statute, a school district may lose all federal funding if it fails to afford to the military access to its schools similar to that which is granted to colleges and universities, and federal funding is a significant portion of respondents' budget. Thus, it cannot be said that respondents invited the military to participate in college days because they agreed with the mission or philosophy of the military and denied access to those espousing contrary views. We note that, pursuant to the NCLB, a school district is also required to provide student contact information to military recruiters. If the school district were to deny a request for such information from a nonmilitary employer or organization, it cannot be said that the school district would be engaging in viewpoint discrimination.
Petitioner relies heavily on Searcey v Crim (815 F2d 1389, 1393-1395), in which the United States Court of Appeals for the Eleventh Circuit held that the defendant school district, which allowed military recruiters in its high school on career day, could not deny similar access to the Atlanta Peace Alliance (APA). Searcey is factually distinguishable from this case for several reasons. First, the forum at issue in Searcey was career day, which is different from the college days at issue here (id. at 1390 n 3). Second, there was compelling, if not overwhelming, evidence in Searcey that the school district's decision to deny access to the APA was based on a desire to suppress its views, which members of the school board deemed unduly controversial (id. at 1390 n 3, 1394-1395). Here, in contrast, there is no evidence that respondents seek to suppress petitioner's views. Indeed, respondents have no objection to petitioner appearing on career day to present information about AmeriCorps and other similar organizations, and they have made ample use of the document entitled "Ten Points to Consider Before You Sign a Military Enlistment Agreement" provided by petitioner. Those actions belie an intent to discriminate against petitioner based upon his viewpoint. Finally, unlike in Searcey, respondents have a legitimate reason for allowing access to military recruiters but not to peace activists or organizations, i.e., the reluctance to lose all federal funding under the NCLB, which was enacted after the school board in Searcey denied access to the APA.
Although not directly on point, Rumsfeld v Forum for Academic & Inst. Rights, Inc. (547 US 47) is instructive. That case involved a challenge by various law schools to the Solomon Amendment (10 USC § 983), which requires institutions of higher education to provide military recruiters the same access afforded to nonmilitary recruiters. The law school plaintiffs opposed the military's policy concerning homosexuals and contended that such policy conflicted with the schools' own policies prohibiting discrimination based on sexual orientation. The United States Supreme Court rejected the law schools' challenge, concluding that the law schools were "not speaking when they host[ed] interviews and recruiting receptions" (Rumsfeld, 547 US at 64). The Court further concluded that "[n]othing about recruiting suggests that law schools agree with any speech by recruiters and [that] nothing in the Solomon Amendment restricts what the law schools may say about the military's policies" (id. at 65). The Court stated that it had previously "held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy" (id.). Here, as in Rumsfeld, respondents are not endorsing the military's message or creating a forum for military speech by complying with the statutory mandate of the NCLB, nor are respondents necessarily expressing disagreement with the views of petitioner by denying his request to set up a "truth-in" table during college days.
With respect to the second cause of action, we reject the contention of petitioner that respondents' denial of his request to observe military recruiters in the School is arbitrary and capricious. Petitioner acknowledged during a hearing on the petition that he wanted to observe the military recruiters so that he could "mirror" their actions. We thus conclude that the request of petitioner is related to his other request to present information during college days that, for the reasons stated above, was properly denied. In any event, respondents do not permit unrestricted and unlimited access to the School to non-students, and their refusal to allow petitioner to observe military recruiters in the School so that he could perfect his counter-recruitment efforts is rational.
All concur except Fahey, J., who dissents and votes to reverse in accordance with the following Memorandum: I respectfully dissent. The determination of respondents violated petitioner's constitutional right to free speech and was arbitrary and capricious.
This case had its genesis in petitioner's request, inter alia, to set up a table at Geneseo High School (School) that proposed alternatives to and discussed the drawbacks of a military career. According to respondents, the "tabling" done by military recruiters is essentially the same as that done by college recruiters at the School. Recruiters sit at tables near the School cafeteria with literature on display, and the recruiters are ...