Genosick v. Richmond Unified School District

Citation479 F.2d 482
Decision Date18 May 1973
Docket NumberNo. 71-1456.,71-1456.
PartiesLouise GENOSICK, Individually, and as Guardian ad litem for Roger Genosick, a minor, Individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. RICHMOND UNIFIED SCHOOL DISTRICT et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Silvano Marchesi, Deputy County Counsel (argued), John B. Clausen, County Counsel, Arthur W. Walenta, Jr., Deputy County Counsel, Martinez, Cal., for defendants-appellants.

Peter E. Sherhan (argued), Paul Halvonik, Chas. C. Marson, San Francisco, Cal., Ramsey & Rosenthal, Point Richmond, Cal., for plaintiffs-appellees.

Before GOODWIN and WALLACE, Circuit Judges, and CURTIS,* District Judge.

CURTIS, District Judge:

This is an appeal from two orders of the district court, one being an order denying appellants' motion to dismiss upon the grounds that the complaint fails to state facts upon which relief can be granted, and a second order issuing a preliminary injunction.

Jurisdiction is conferred on this court by Title 28 U.S.C. § 1292, which makes interlocutory orders issuing preliminary injunctions appealable. It is also established that an appeal from an order granting preliminary injunction supports a review of an order denying a motion to dismiss, even though standing alone the latter would not be appealable. 9 Moore Fed.Practice section 110.25 1; Gatliff Coal Company v. Cox, 142 F.2d 876 (6th Cir. 1944); Zwack v. Kraus Bros. & Co., 237 F.2d 255 (2nd Cir. 1956).

The appellees, a minor child and his mother, brought this action against the appellants, Richmond Unified School District, its superintendent and an assistant superintendent, contending that the district in which the child was a pupil had instituted a policy which violated the students' First Amendment rights.

It appears from the record that the district assistant superintendent circulated a memorandum dealing with the wearing of pants suits by female staff and the displaying of ecology symbols. The memorandum read in part:

"Both the cause of peace and that of improved ecology can be furthered in our schools without resort to the current symbols used by some in our society.
"You are directed to see that both of these decisions are inforced sic."

The appellees alleged that because of the issuance of this memorandum, they are in "immediate peril of intimidation, threat, harassment, discrimination, and interference with their First Amendment rights of free speech, and Fourteenth Amendment rights of equal protection."

Immediately after filing the complaint a second memorandum was issued to the elementary principals, reading as follows:

"The intent is to counsel teachers from overemphasizing abstract symbols. There is no reference to the right of an individual to wear a symbol on his person."

Thereafter, the assistant superintendent filed herein an affidavit in opposition to the ...

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5 cases
  • Lou v. Belzberg
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 12, 1987
    ...U.S.C. Sec. 1292(a)(1) (1982), which allows appeals from the grant or denial of a preliminary injunction. Genosick v. Richmond Unified School Dist., 479 F.2d 482, 482-83 (9th Cir.1973). In an appeal from a preliminary injunction, we will also review a denial of a motion to remand, Takeda v.......
  • Yamamoto v. Omiya
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 28, 1977
    ...power to consider all issues should it decide to do so. 9 J. Moore, Federal Practice 110.25 (2d ed. 1975). Genosick v. Richmond Unified School District, 479 F.2d 482 (9th Cir. 1973); Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086, 1091 (5th Cir. 1973); Hurwitz v. Directors Guild of Am......
  • Marks v. San Francisco Real Estate Bd.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 11, 1980
    ...Lab., Inc., 579 F.2d 786, 791 (3d Cir. 1978); Yamamoto v. Omiya, 564 F.2d 1319, 1325 n. 11 (9th Cir. 1977); Genosick v. Richmond Unified School Dist., 479 F.2d 482 (9th Cir. 1973). The reasons for the doctrine can be extended to this situation. There is no question that the dismissal is app......
  • Shannon v. U.S.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 29, 1975
    ...of an order denying a motion to dismiss, even though standing alone the latter would not be appealable." Genosick v. Richmond Unified School District, 479 F.2d 482, 483 (9th Cir. 1973); 9 Moore, Federal Practice section 110.25(1).2 § 6901 in pertinent part provides"(a) The amounts of the fo......
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