Lapolla v. Dullaghan
| Decision Date | 22 May 1970 |
| Citation | 63 Misc.2d 157,311 N.Y.S.2d 435 |
| Parties | Raymond W. LAPOLLA, Petitioner, v. James DULLAGHAN, Superintendent of the Board of Education, City of Peekskill, William Torpy, President of the Board of Education, City of Peekskill, Melvin Tapley, Maynard S. Baldwin, Samuel V. D'Onofrio, Gerald Desmond, John McIver, George Birdas, Members of the Board of Education, City of Peekskill, Respondents. |
| Court | New York Supreme Court |
William A. Egan, Jr., White Plains, for petitioner.
Spencer & Tunstead, New York City, for respondents.
Petitioner applies for an order enjoining the respondents from flying the United States flag at half mast as an expression of sorrow and sympathy at the death of the four students at Kent State University and to memorialize the 40,000 Americans who have lost their lives in the service of their country in Vietnam.
The relevant facts are not in dispute. On May 8, 1970, the principal of the Peekskill High School advised the Superintendent of Schools that in response to a request from some students and faculty, he had given them permission to circulate a petition stating in part that it would be fitting that the flags of the Peekskill City School District be flown at half mast on Monday, May 11, 1970, in memory of the four students killed at Kent State. The principal recommended that permission be granted. The Superintendent discussed the request with his principal and expressed his feeling that the flag could not be used as a form of peaceful dissent. The Superintendent also expressed concern that the lowering of the flag would be a prejudgment of the events which had transpired at Kent State.
The Superintendent then discussed the request with the President of the Board of Education, who suggested that it would be more fitting and appropriate to memorialize the American soldiers killed in Vietnam. The President stated that it was his opinion that the responsibilities of the Board to the students rested in providing the students with all facets of contemporary issues. The President stated that he believed that his fellow Board members would support his idea, and therefore, the Board was not polled.
The principal then returned to the student representatives and presented them with three propositions. The first stated that the flag could not and was not to be used as a form of peaceful dissent. The second was that if the students wished to memorialize any group of Americans, the most appropriate would be the more than 40,000 Americans who have lost their lives representing their country in Vietnam; and the third included the students' request that they express the sympathy of the student body at Peekskill High School to the student body at Kent State. This was accepted by the student representatives. The petition to lower the flag at all the city schools was denied but was approved to the extent that the flag at the high school wherein the petitioners attended school was to be lowered.
On May 10, 1970, the Veterans Council of which petitioner is a member, met and invited the School Board and administration to explain their position. Later that evening, a meeting was held at the home of the President of the Board. The Veterans stated that they would take whatever steps were necessary to see that the flag was not lowered.
The Board then decided to defer the lowering of the flag pending the resolution of this controversy.
Respondents have expressly stated in their papers and in open court that they are waiving any procedural objections they might have to this proceeding in order to obtain a speedy judicial determination.
Respondents' position, simply stated, is that the issue of whether or not the flag is lowered to half mast is a matter solely within the discretion of the local Board of Education. Respondents contend that the flag is flown at half mast in the school district in memory of deceased students, teachers, school board members or school district personnel as the Board may determine. It is their position that lowering the flag to half mast to commemorate the stated intention of the students and faculty is an analogous situation. Respondents further illustrate their contention by pointing out other instances where the flag is flown at half mast in an attempt to justify the proposed action.
Petitioner argues that it is the duty of the Superintendent and the Board to comply with the proper observance of flag etiquette and to fly the flag at full mast pursuant to its own regulations.
There is a paucity of law on the specific question before this Court. Both parties have confined their legal arguments to their view of the applicable codes, statutes, regulations and custom, although petitioner raised the issue of the lowering of the flag as an expression of political dissent in his oral argument. What authority there is will be covered under the heading of Federal, State and Local Codes, Statutes and Regulations.
The issue in this action is whether the flag should be lowered to half mast in response to a petition from students and faculty as an expression of sympathy for the four dead Kent State students and the Vietnam war dead. The answer is no.
Lack of uniformity in the matter of flag display pertaining to civilian matters led to the adoption of a universal code in 1923 at a conference called by the American Legion. This code had no binding federal authority but it was generally followed. A joint regulation of Congress, on June 22, 1942, enacted a federal flag code, 36 U.S.C.A. §§ 171--178. In 1954, President Eisenhower, in proclamation No. 3044, March 1, 1954, proclaimed rules with respect to the display of the flag at half staff upon the death of certain designated officials and former officials as a guide to the people of the nation. Title 36 is not intended to proscribe behavior. Rather, it is fashioned as an expression of prevalent custom and usage regarding the display of the American flag; 36 U.S.C.A. § 173; State of Delaware ex rel. Trader, Jr., Adjutant, Veterans of Foreign Wars of the United States, Department of Delaware, District No. 1 v. Hodsdon, 265 F.Supp. 308 (U.S.D.C. Delaware, 1967), involving the placing of the United Nations flag above the United States flag. This Court agrees with respondents that the U.S. Code provisions are not to be accorded the full weight of statutory proscription but finds that they are an expression of custom and usage which is designed for and should be used by civilian authorities, including school districts.
The Education Law of the State of New York, Section 418, Purchase and Display of Flag; Section 419, Display of Flag in Assembly Rooms; Section 420 (); and Section 802 (); Section 801 () are the applicable statutory provisions governing flag use and display in our schools. They have been held to be constitutional in other fact situations, People ex rel. Fish v. Sandstrom, 279 N.Y. 523, 18 N.E.2d 840 (1939), and no claim has been advanced that the students
and faculty have a constitutionally protected right to have the flag flown at half mast. The Flag Regulations of the State Commission of Education are contained in Title 8 Education Part 108. They determine the material and size of the flag (108.2); the manner and place of display (108.3); the care of the flag (108.4) and the Pledge to the flag (108.5). These regulations are constitutional and do not contravene either the United States Constitution (1st and 14th Amendments) or the New York State Constitution (Art. I, § 3; Art. XI, § 4; see Matter of Lewis v. Allen, 11 A.D.2d 447, 207 N.Y.S.2d 862 (1960); aff'd 14 N.Y.2d 867, 252 N.Y.S.2d 80, 200 N.E.2d 767. Both the statutes and the regulations of the Commissioner are silent on the narrow issue at bar but again they are mentioned to indicate the spirit and intent of the law and regulations of our state concerning the flag.
The school district itself has regulations for the care and display of the flag. These regulations were promulgated on November 1, 1964. They were enacted under the statutory authority of Section 420 of the Education Law. Section A provides that flags Must (emphasis supplied) be flown at full staff on every day that school is in session and on certain enumerated holidays. Section B (2) and (3) provides that the flag may be flown at half mast in...
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...predecessor of the current Flag Code, provided no private right of action. Holmes, 407 F. Supp. at 496. (citing Lapolla v. Dullaghan, 63 Misc.2d 157, 311 N.Y.S.2d 435 (N.Y. 1970)); see also Sadlier v. Payne, 974 F. Supp. 1411, 1415 n.3 (D. Utah 1997)(part of Title 36, known as the "flag cod......
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