Frasca v. Andrews

Decision Date05 March 1979
Docket NumberNo. 78 C 1484.,78 C 1484.
Citation463 F. Supp. 1043
PartiesRenee FRASCA, By her parent and natural guardian, Lucille Frasca, Joan Falcetta, By her parent and natural guardian, Jean Falcetta, and all other persons similarly situated, Plaintiffs, v. Robert ANDREWS, Individually and in his capacity as Principal of Sewanhaka Central High School, W. Wallace Purdy, Individually and in his capacity as District Principal of the Sewanhaka Central High School District, Board of Education, Sewanhaka Central High School District, Defendants.
CourtU.S. District Court — Eastern District of New York


Alan J. Azzara, Youth Advocacy Project, Mineola, N. Y., for plaintiffs.

Robert B. Loew, Melville, N. Y., for defendants.


GEORGE C. PRATT, District Judge.


When plaintiffs commenced this action they moved by order to show cause for a preliminary injunction preventing defendants from barring distribution of one issue of a high school newspaper on the ground that defendants' actions in seizing the newspaper violated the First and Fourteenth Amendments. Declaratory relief, class action certification, and damages are also sought. Jurisdiction stems from 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343, 2201. Oral argument was heard on plaintiffs' motion for a preliminary injunction on August 24, 1978. Because the essential facts are not in dispute, the action may be disposed of without an evidentiary hearing, and the trial on the merits is deemed to be advanced and consolidated with the preliminary injunction proceedings. FRCP 65(a)(2).


Plaintiffs Renee Frasca and Joan Falcetta are, respectively, the former Editor-in-Chief and present Assistant Editor of the Chieftain, the official student newspaper of Sewanhaka High School, which is located in Floral Park, Nassau County, New York. The school contains grades 9-12 and has approximately 1,500 students, ranging in age from 13 to 21 years. The Chieftain's editorial board and staff consists of 25 students.

Defendants in this action are: Robert Andrews, the building principal of Sewanhaka High School; W. Wallace Purdy, the district principal; and the Board of Education of Sewanhaka Central High School District.


Copies of the June 1978 issue of the Chieftain were returned to the school from the printer on the evening of June 14, 1978 and placed in the home room mail boxes in the school office for distribution on the following day, June 15, 1978, the last day of the school year. The next morning, the newspaper staff discovered that all copies of the June 1978 issue had been seized by the building principal, defendant Andrews, who prohibited their distribution. The bases for the seizure and the focal points of this suit were two letters printed in the paper and designated in the court documents as Exhibits "A" and "B".

Exhibit "A" appeared on page 8 of the Chieftain and read as follows:

Sports editor,
We, the Lacrosse players of Sewanhaka would like to know why you do not have any sports articles in the Chieftain. We would like a formal apology in public or else we will kick your greasy ass.

signed Pissed Off S.H.S. Lacrosse Team.

The editor's response, printed immediately below, read:

We would like to reply by saying that the articles were stolen. We would also like to say that you hotheaded, egotistical, "Pissed Off" jocks of the Lacrosse team do not deserve an apology for anything. You should be giving one.

The Editors.

Exhibit "B", which appeared on page 2, criticized the conduct of a particular student who was then vice-president of the student government. The student will be referred to as "John" in this decision, as in the court papers, to protect him from further unnecessary embarrassment. The letter stated, inter alia, that John "has been a total failure in performing his duties" and is a "total disgrace to the school", that he had been suspended from school, that he did not maintain a high academic average, that he attended only a few of the many student council meetings, and that he had changed his report card grades "by typing over the letters on the computer terminal". It also stated that John had been given one major responsibility, to head the Interclub Council, but that the council "completely died" because John "never showed up for his own meetings". Although Exhibit "B" begins "as a group * * * we feel * * *", the paper does not identify either the author or the "group".

The Chieftain is an extra-curricular activity funded entirely by the local school district, which provides space, utilities, supplies, desks, typewriters, and printing. The paper is staffed solely by students, who primarily determine the content, management, and control of the newspaper. The district has no written policies, guidelines, or rules pertaining to the Chieftain's content, or to possible prior review, restraint, or censorship by the faculty or administration. Nevertheless, defendants regard the newspaper as being under the jurisdiction and direction of the English Department's chairperson, and ultimately under the supervision and control of the Board of Education, administered through the district principal and the building principal. They consider the student editors and staff to be subject to supervision "in a manner consistent with sound educational practice".

Although the faculty advisor was generally familiar with the content of each issue of the Chieftain before it went to press, he denies ever having exercised a "prerogative of censorship" and states that it was not his practice to review the final draft of the paper before it went to press. Apparently, the absence of written regulations, policies and guidelines is intended to provide the staff with an atmosphere of free inquiry and expression.

The controversial June 1978 issue of the Chieftain was an "extra additional issue" for the end of the school year. While there is a factual dispute about whether the faculty advisor was given an opportunity to review the paper's content prior to publication, that factual issue is not material. It is undisputed that prior to press time the faculty advisor did not actually see Exhibits "A" and "B" or, indeed, any of the material in the paper.

Defendant Andrews first read the June 1978 issue on the morning of June 15, after copies had been placed in the homeroom mailboxes for distribution to the students. Andrews' personal acquaintance with members of the lacrosse team caused him to doubt "very much whether the team as a whole, or for that matter, even a majority of the team members would concur in and write such a letter". As to Exhibit "B", Andrews knew of his own knowledge that John was an excellent student, a senior, and that this was the last issue of the paper for the year. He recognized that John had no opportunity to defend himself and that, true or false, the letter would have a "devastating impact" upon him. Because he doubted the truth, both of the signature on Exhibit "A" and of the content of Exhibit "B", Andrews had all the papers removed from the mailboxes, thereby preventing their distribution, and immediately commenced an investigation.

With respect to Exhibit "A", purportedly a letter from the "SHS Lacrosse team", Andrews called in five members of the team, including two of the three captains. None had any knowledge of the contents of the letter or of who had written it. Neither did the team's coaches know of the letter's contents or origin. Later investigation by an assistant coach disclose that one member of the team had written the letter during his lunch hour, with three other team members present. No one else on the 25 man team had knowledge of the letter prior to or at the time it was written. As of June 15, the day the paper was to have been distributed, only four other players, and none of the team captains, knew of the letter.

Andrews' initial doubts about the letter focused on the falsity of representing it as a product of the entire lacrosse team. In his affidavit he also notes his concern that the "fighting words" of the letter might "easily trigger a physical as well as verbal confrontation between the lacrosse teams on the one hand, (we have three, freshman, JV and Varsity), and the staff of the Chieftain on the other". He expresses concern, too, over the "obscene" and vulgar language of Exhibit "A".

Andrews' investigation of Exhibit "B" was more extensive. He first spoke with the faculty director of student activities and learned that John had attended not "a few", but 75% of the student council meetings, and contrary to Exhibit "B", not only attended meetings of the Interclub Council but "tried his best to get the club functioning". John's records revealed that he ranked 101 out of a junior class of 557, and had no failing marks on his report card. Andrews knew that John had received an award from the senior high school Science Fair and was one of ten finalists for an Otis Elevator scholarship. Based on his investigation, Andrews determined that the content of Exhibit "B" was substantially false, and that if distributed on the last day of the school year with no offsetting response and no realistic opportunity to reply, great harm could be done to John and his reputation. Andrews was also concerned about possible liable liability of the school district, himself, and the staff members of the Chieftain, and about a possible violation of federal law by publishing information about a school suspension in a school newspaper.

Andrews spoke to the plaintiffs individually. Frasca indicated to him that she knew who had actually written the lacrosse team letter, but she "evaded" the question as to whether the letter had been authored by the team as a whole. With respect to Exhibit "B", Frasca told Andrews that she had reliable information that the letter's contents were true. Frasca's affidavit states that based on a discussion with the author as to his sources of information, and...

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