Schwartz v. Schuker
| Decision Date | 27 March 1969 |
| Docket Number | No. 69-C-134.,69-C-134. |
| Citation | 298 F. Supp. 238 |
| Parties | Jeffrey SCHWARTZ, a minor by his mother Zorya Schwartz, Plaintiff, v. Louis SCHUKER, individually and as Principal of Jamaica High School and Max Rubinstein, individually and as District Superintendent of District 29, New York City Board of Education, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Paul G. Chevigny, New York City, New York Civil Liberties Union, for plaintiff; Roy Lucas, New York City, of counsel.
J. Lee Rankin, Corporation Counsel, for defendants; John J. Loflin, Jr., New York City, Charles D. Maurer, Jamaica, of counsel.
Vladeck, Elias, Frankle, Vladeck & Lewis, New York City, for defendant Louis Schuker; Bernard Yaker, New York City, of counsel.
Plaintiff, Jeffrey Schwartz, a minor (Jeffrey), a student at the Jamaica High School, claims he was suspended for exercising his First Amendment right of freedom of speech in distributing off school grounds near the property of the high school, Issue No. 5 of a newspaper entitled "High School Free Press", criticizing the principal, Louis Schuker, and other members of the administration. Accordingly, he brings this action through his mother, Zorya Schwartz, under 28 U.S.C.A. § 2201 et seq. and 42 U.S. C.A. § 1983, against Schuker and the District Superintendent of the school district, for a declaratory judgment and an injunction to prevent further deprivation of Jeffrey's rights, and to mandate his reinstatement as a student at the Jamaica High School. To accomplish this purpose, Jeffrey moves for a preliminary injunction under Rule 65, Fed.Rules Civ. Proc., 28 U.S.C.A., and for immediate action to enjoin the suspension and any further disciplinary proceedings against him in order to protect him from further injury to his academic career.
Jeffrey is a senior at the high school and was found on April 2, 1968, distributing Peace Strike materials on school grounds during the school day, calling for a student strike. He was not punished but was advised by the Dean that students were not permitted to distribute outside literature on school grounds without specific permission and that a violation of this resolution would constitute a serious breach of school discipline. Subsequently, on December 9, 1968, at a time when there were city-wide riots by students protesting the lengthened school day, Jeffrey was interviewed by an administrative assistant concerning materials to be distributed in the school calling for a student strike during school hours, and admitted that he was part of the student strike movement. No charge was made at that time that he was distributing any material but he admitted in his affidavit that at the interview he refused to give the administrative assistant the names of the members of the Student Union. The next day, December 10, 1968, Jeffrey's parents were interviewed upon the subject of their son's association with student strikes, at which time, according to Schuker's affidavit, there were five hundred pupils from other schools at the Jamaica High School attempting to "seduce pupils out of Jamaica". As appears from Schuker's affidavit, both parents asserted that their son had a right to carry on student strikes and to attack the "Establishment" at all times and in any manner that Jeffrey deemed proper, although Jeffrey in his affidavit denied that they said that he had a right to attack the "Establishment".
On January 20, 1969, Principal Schuker conferred with Jeffrey about the proposed Issue 5 of the High School Free Press (which is independently published off school property for circulation among many high schools) and advised him that under no conditions would he be permitted to distribute this material in school or on school grounds. Schuker based his reason upon the fact that he had read the previous issue, number 4, which was attached to his affidavit and which the court can verify, after reading, contained four-letter words, filthy references, abusive and disgusting language and nihilistic propaganda. Nevertheless, Jeffrey, on January 24, 1969, appeared on the school grounds carrying thirty-two copies of Issue 5 of the High School Free Press. This issue, among other things, criticized Principal Schuker, referring to him as "King Louis", "a big liar", and a person having "racist views and attitudes". Other pupils were apprehended distributing copies of this newspaper on school grounds, and four admitted violating school regulations and surrendered this material. Jeffrey was not charged with distribution but upon demand refused to surrender to the Dean the material unless taken by force. At the same time he advised a second-year student to disobey the Dean and to likewise refuse to surrender his copies.
As a result of this action, Jeffrey was excluded from classes "for contumelious behavior at the end of the school day", as stated in a letter to his parents requesting an interview which was held on January 27, 1969. Upon this occasion the parents were informed in Jeffrey's presence that Jeffrey was formally suspended and that a suspense hearing would be set up in the future. This notice was confirmed in writing by a letter to Jeffrey's parents on the same day. Nevertheless, on February 5, 1969, Jeffrey appeared in the classroom at the Jamaica High School and admitted that he was present in defiance of the superintendent's order by his mother's instructions. The suspense hearing was held, as a result of which the district superintendent recommended that Jeffrey be graduated on January 31, 1969 or, as an alternative, be transferred to either of two other high schools in the same district. This option was not exercised by Jeffrey or his parents and to this extent injury to Jeffrey's academic career was not demonstrated.
Plaintiff complains that (1) he was never charged with or had a hearing upon any alleged violation of school regulations and (2) he was unconstitutionally punished for the exercise of his First Amendment rights. The first charge may be dismissed upon the ground that the administrative procedures applicable by statute to this offense were followed. What constitutes due process free from specifics of the Fifth and Sixth Amendments depends upon the facts in each particular case and the particular procedures followed. In this case the applicable provisions of the New York Education Law, McKinney's Consol.Laws c. 16 (Education Law) provide that the Commissioner of Education shall be the chief executive officer (§ 305(1)) with general supervision of all schools and institutions (§ 305(2)), and that a school principal shall be responsible for the administration, instruction and control of the teaching and...
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