East Meadow Community Concerts Ass'n v. Board of Ed. of Union Free School Dist. No. 3, Nassau County

• Citation: 18 N.Y.2d 129,219 N.E.2d 172,272 N.Y.S.2d 341
• Parties: , 219 N.E.2d 172 EAST MEADOW COMMUNITY CONCERTS ASSOCIATION, Appellant, v. BOARD OF EDUCATION OF UNION FREE SCHOOL DISTRICT NO. 3, COUNTY OF NASSAU, Respondent.
• Decision Date: 07 July 1966
• Court: New York Court of Appeals

Page 341

272 N.Y.S.2d 341

18 N.Y.2d 129, 219 N.E.2d 172

EAST MEADOW COMMUNITY CONCERTS ASSOCIATION, Appellant, v. BOARD OF EDUCATION OF UNION FREE SCHOOL DISTRICT NO. 3 COUNTY OF NASSAU, Respondent.

Court of Appeals of New York.

July 7, 1966.

Norman Bard, Brooklyn, Samuel Millman, East Meadow, and Leonard S. Elman, New York City, for appellant.

John H. Borrie, Mineola, for respondent.

Donald D. Shaek and Irvin Rothfarb, New York City, for New York Civil Liberties Union, amicus curiae.

FULD, Judge.

Involved in this litigation--which questions the right of the defendant school board to bar the folk singer, Pete Seeger, from giving a concert in one of its school buildings--are important issues of jurisdiction and constitutional law.

The plaintiff, a nonprofit educational and cultural association, has for its purpose the presentation of an annual series of muscial concerts, and during the past 10 years it has been permitted by the defendant school board to present these concerts in the auditorium of a high school in East Meadow on Long Island. In June of 1965, following prior procedure, the defendant gave the plaintiff such permission for the 1965--1966 series, including a concert scheduled for March 12, 1966, which was to feature Pete Seeger as the performing artist. The concert was publicized and tickets for the series of three were sold. However, in December of 1965, the defendant withdrew the previously granted permission for the March 12 concert on the ground that, because he had given a concert in Moscow and because some of the songs he sings are critical of American policy in Viet Nam, Seeger is a 'highly controversial figure' whose presence might provoke a disturbance with consequent damage to school property. Some time later that same month, the plaintiff instituted the present action in which it sought a judgment, in effect, (1) declaring the defendant's action to be unconstitutional and (2) enjoining the defendant from interfering with the presentation of the scheduled concert in the school auditorium.

The court at Special Term found no violation of constitutional rights in the board's action and dismissed the complaint in February, 1966. An appeal was immediately taken to the Appellate Division but, although the plaintiff's application for a preference was granted, the case could not be argued until after the date for which the concert had been scheduled. In its decision, handed down in May, the Appellate Division voiced the opinion that the defendant's revocation of the permit was 'an unlawful restriction of the constitutional right of free speech and assembly.' The appeal, however, was dismissed because, it was said, 'the controversy is moot' in view of the fact that 'the time for the scheduled performance has passed * * * (and the plaintiff) expressly states that it has no cause for money damages.' The plaintiff has appealed to this court as of right on constitutional grounds, and on the oral argument the defendant renewed a motion--earlier made and denied (17 N.Y.2d 861, 271 N.Y.S.2d 289, 218 N.E.2d 328)--to dismiss the appeal on the ground that no constitutional issue is 'directly involved' (N.Y.Const., art. VI, § 3, subd. (b), par. (2); CPLR 5601, subd. (b), par. 1).

Although at this stage of the proceedings we are required to determine solely the jurisdiction of our court and that of the Appellate Division, we find that a significant relationship exists between the jurisdictional issues presented on this appeal and the constitutional principles invoked by the plaintiff at the trial. It becomes essential, therefore, to consider those principles even though we do not actually reach or pass upon the merits of the dispute between the parties.

That the constitutional issues posed by this case are substantial and, indeed, of high public importance, there can be no doubt. The State is not under a duty to make school buildings available for public gatherings but, if it elects to do so, it is required, by constitutional provision (U.S.Const., 14th Amdt.; N.Y.Const., art. I, § 11), to grant the use of such facilities 'in a reasonable and nondiscriminatory manner, equally applicable to all and administered with equality to all.' (Brown v. State of Louisiana, 383 U.S. 131, 143, 86 S.Ct. 719, 724, 15 L.Ed.2d 637; see, also, Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373; Matter of Ellis v. Allen, 4 A.D.2d 343, 344, 165 N.Y.S.2d 624, 626, app. dsmd. 4 N.Y.2d 693, 171 N.Y.S.2d 86, mot. for 1v. to app. den. 4 N.Y.2d 674, 171 N.Y.S.2d 1027, 148 N.E.2d 915; American Civil Liberties Union v. Board of Educ., 59 Cal.2d 224, 28 Cal.Rptr. 712, 379 P.2d 16; Danskin v. San Diego Unified School Dist., 28 Cal.2d 536, 171 P.2d 885.) The defendant has concededly allowed a number of organizations, including the very plaintiff before us, to use the school auditorium for nonacademic purposes for many years. It follows, therefore, that, in deciding who is to be permitted to use its school, the board must not unconstitutionally discriminate against the plaintiff.

Of course, this does not mean that the defendant board is prevented from barring the use of the school auditorium for an unlawful purpose (see, e.g., American Civil Liberties Union v. Board of Educ., 59 Cal.2d 203, 28 Cal.Rptr. 700, 379 P.2d 4, cert. den. 375 U.S. 823, 84 S.Ct. 64, 11 L.Ed.2d 56) but in the case before us the justification asserted for canceling the permit is the unpopularity of Seeger's views rather than the unlawfulness of the plaintiff's concert. The expression of controversial and unpopular views, it is hardly necessary to observe, is precisely what it protected by both the Federal and State Constitutions. (U.S.Const., 1st. Amdt.; N.Y.Const., art. I, § 8; see, e.g., Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280; Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Matter of Rockwell v. Morris, 10 N.Y.2d 721, 219 N.Y.S.2d 268, 176 N.E.2d 836, affg. 12 A.D.2d 272, 211 N.Y.S.2d 25.) As the Appellate Division noted in the Rockwell case, where the threat of public disorder and violence was far greater than that alleged in the present case, 'there is no power in government under our Constitution to exercise prior restraint of the expression of views, unless it is...