Petition — Mareno ex rel. Mareno v. Walker

tr Bupremo Court,

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JUN 9 1980

7 PRICHAEL RODAK, JR., CUERTE |

Supreme Court of the United States

OCTOBER TERM, 1979

* No. 79= 1 9 3 &

ANTONIO MARENO, Jr., a minor 16 years of age, by his

mother and next friend, Kathlene C. Mareno,

Petitioner,

vs.

JAMES M. WALKER, individually and as Principal of

Lakeland Senior High School, Shrub Oak, New York, and

ROBERT F. WILLIS, individually and as a Substitute

Homeroom Teacher in Lakeland Senior High School, Shrub

Oak, New York,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ANTONIO MARENO

Attorney for Petitioner

3505 Tulip Drive

Yorktown Heights, N.Y. 10598

DICK BAILEY PRINTERS, 290 RICHMOND AVE., P.O. Box X, S.I., N.Y. 10302

(212) 447-5358

i

TABLE OF CONTENTS

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Reasons for Granting the Writ.................. 6

1. The Second Circuit Failed to Accord Petitioner

the Most Favorable Inferences which Could be

Drawn from Respondents’ Evidence Under Their

Motion for Summary Judgment Although Directed

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2. The Second Circuit’s Holding in Petitioner’s

Case Conflicts with a Contrary Holding of the

Fourth Circuit on the Same Matter and Warrants

Review by this Court in View of its Regressive

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Appendix A—Opinion of the District Court...... la

Appendix B—Judgment of the District Court..... Sa

Appendix C—Judgment of the Court of Appeals.. 6a

ii

TABLE OF CITATIONS

Cases:

Adickes v. Kress & Co., 398 U.S. 144 (1970)......

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

Fenton v. Stear, 423 F. Supp. 767 (W.D. Pa., 1976)

First National Bank of Cincinnati v. Pepper, 454

a a

Gooding v. Wilson, 405 U.S. 518 (1972)..........

Monroe v. Pape, 365 U.S. 167 (1961).........+..

Papish v. University of Missouri Curators, 410

RN tid dig ablabicd + osiaclisvvewee o's

People v. Benders, 63 Misc. 2d 572 (1970), 312

en ss os ke cs vies eebees

People v. Brown, 60 Misc. 2d 696 (1969), 303

ed irs's Ke bid dc 6k bike cb'eoid'v eee et

ES so OG Ads so canes scecvccsccecccs

People v. Pritchard, 27 N.Y.2d 246 (1970), 265

EE ee rae 26b 540 ¥ Kavecestevarect

Rodriguez v. Bd. of Ed., Eastchester Union Free

Sch. Dist., e al., 616 F.2d 2.701 (2nd Cir., 1980)...

Russo v. Central Sch. Dist. No. 1, Towns of Rush,

Etc., N.Y., 469 F.2d 623 (2nd Cir., 1972), cert.

LS

3,9

11

12

15

11

14

14

15

15

10

Thomas v. Board of Ed., Granville Cent. Sch.

Dist., 607 F.2d 1043 (2nd Cir.,1 979), cert. den., 48

ie Ws SEG Gon sd v's Nowe GkER Ee hee lee 12

Thonen v. Jenkins, 491 F.2d 722 (4th Cir., 1973). . 3,12

Tinker v. Des Moines Independent School District,

Pee a PO CE a Poca ees 4c ¥ Peake eines oes 12

Statutes:

Title 42, United States Code, section 1983........ 5

39 McKinney’s Cons. Laws of N.Y., section 240.25

ce are 14

Miscellaneous:

Amendment to the United States Constitution, AR-

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Amendment to the United States Constitution, AR-

pg > Bt ee earns eae eR a a

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1979

ANTONIO MARENO, Jr., a minor 16 years of age,

by his mother and next friend, Kathlene C. Mareno,

Petitioner,

v.

JAMES M. WALKER, individually and as Principal

of Lakeland Senior High School, Shrub Oak, New York,

and ROBERT F. WILLIS, individually and as a

Substitute Homeroom Teacher in Lakeland Senior

High School, Shrub Oak, New York,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner, Antonio Mareno, Jr., a minor 16

years of age, by his mother and next friend, Kathlene C.

Mareno, respectfully prays that a writ of certiorari issue to

review the judgment and opinion of the United States

Court of Appeals for the Second Circuit entered in this

proceeding on March 26, 1980.

OPINION BELOW

The judgment of the court of appeals, rendered on

the opinion of the district court, affirmed the judgment of

2

the United States District Court for the Southern District

of New York (Lawrence W. Pierce), entered November

14, 1979, which summarily dismissed prior to trial the

complaint in petitioner’s civil rights action brought against

respondents high school principal and teacher, respective-

ly, and said judgment of affirmance is unreported. The

opinion of the district court judge is also unreported, is the

only written opinion rendered in the case, and is reproduc-

ed in Appendix A to this petition. The judgment of the

district court is reproduced in Appendix B to this petition;

and the judgment of the court of appeals is reproduced in

Appendix C to this petition.

JURISDICTION

The judgment of the court of appeals was entered on

March 26, 1980. The jurisdiction of this court is invoked

under Title 28, United States Code, section 1254.

QUESTIONS PRESENTED

1. Was the court of appeals judgment compatible

with the most favorable inferences which could be drawn

in petitioner’s favor from the evidence presented on

respondents’ motion for summary judgment?

2. Does the Second Circuit’s reliance upon Chaplin-

sky as a basis for rejecting petitioner’s claims for first

amendment protection arising from petitioner’s reac-

tionary utterance warrant review by this court in the light

of the Fourth Circuit’s contrary holding which extends

first amendment protection to a student’s aggressive ex-

pression upon the authority of Tinker and its progeny?

AUTHORITIES INVOLVED

Question No. 1 involves Rule 19-1.(b) of this court’s

rules, and Adickes v. Kress & Co., 398 U.S. 144 (1970).

Rule 19-1.(b) provides for review by this court on cer-

tiorari:

Where a court of appeals . . . has so far departed

from the accepted and usual course of judicial pro-

ceedings, or so far sanctioned such a departure by a

lower court, as to call for an exercise of this court’s

power of supervision.

Question No. 2 involves Rule 19-1.(b) of this court’s

rules, and Thonen v. Jenkins, 491 F.2d 722 (4th Cir.,

1973). Rule 19-1.(b) provides for review by this court on

certiorari:

Where a court of appeals has rendered a decision in

conflict with the decision of another court of appeals

on the same matter...

Included here is the first amendment freedom of speech

guarantee in the Constitution of the United States as ap-

plied to the states through the fourteenth amendinent to

the constitution.

The first amendment (ARTICLE I) states in relevant

part:

Congress shall make no law... abridging the

freedom of speech... .

The fourteenth amendment (ARTICLE XIV, Section

I) states in relevant part:

. . » No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States... .

4

Freedom of speech is one of the privileges of United

States citizenship which is protected against state infringe-

ment by the federal constitution.

STATEMENT OF THE CASE!

Petitioner, a United States citizen by birth (46) and a

16 year old sophomore student in Lakeland Senior High

School in Shrub Oak, New York, was suspended from

school by the Dean of Men for | day for uttering the word

‘*Prick’’ in the hallway outside his homeroom classroom

after a male substitute teacher deliberately slammed the

classroom door shut in petitioner’s face, nearly catching

his hand in the door as it slammed shut (34, 41). The

teacher, upon overhearing the utterance which was made

in half voice in an empty hallway and not actually intend-

ed for his hearing, reopened the classroom door, and

threatened to inflict bodily harm upon petitioner if peti-

tioner ever called him that again (41-42).?

The principal, to whom the dean referred the

disciplinary matter that was initiated on complaint of the

teacher at the end of the homeroom period that day,

upheld the suspension after merely satisfying himself

through unilateral inquiry of petitioner, that petitioner

did, in fact, utter the word ‘‘Prick’’ in the hallway outside

the homeroom classroom, and although petitioner inform-

1. Reference numbers in parentheses are to the Joint Appendix on the ap-

peal to the Court of Appeals.

2. It is this threat which forms the basis of the second count in the com-

plaint against respondent teacher for imposition of a prior restraint on speech

against petitioner, in view of the teacher’s deliberate provocation of the ut-

terance in the first piace. The count is based upon the observations of a stu-

dent in the classroom who saw the teacher slam the door on petitioner, and

then stand by it prior to reopening it (47-48), thus placing himself in a position

10 monitor petitioner’s verbal reaction.

ed him of the provocative circumstances giving rise to the

utterance (26-27, 45). At the time neither the principal nor

the teacher were aware of multiple meanings ascribed to

the word ‘‘Prick,’’ under one of which the word means ‘‘a

disagreeable or contemptible person’’ (30).

When the principal failed to address the teacher’s

rude behavior which triggered petitioner’s utterance (27,

35), and it was subsequently discovered by petitioner’s

father that the principal and the teacher shared an on-

going social relationship at the time of the suspension in-

quiry (33, 40), petitioner instituted a civil action in the

district court under Title 42, United States Code, section

1983, against the principal and the teacher seeking multi-

ple relief for infringement of speech (1-9).

The district court dismissed the two count complaint

on defendants’ motion for summary judgment, finding as

facts that petitioner uttered the word ‘‘prick’’ because the

teacher refused to let him into the homeroom without a

late pass, that petitioner intentionally directed the ut-

terance at the teacher, that the teacher abruptly closed the

door behind petitioner, and that the teacher reprimanded

petitioner upon overhearing the utterance (48-49). And on

these factual findings the district court concluded that

petitioner’s utterance was not constitutionally protected

from infringement because it was abusive language which

tended to incite an immediate breach of the peace, that the

discipline administered to petitioner did not rise to the

level of violating specific guarantees, and that petitioner

was disciplined for ‘‘insolence’’ and not for the purpose of

curtailment of speech (50-51).

The court of appeals affirmed on the opinion of the

district court.

6

REASONS FOR GRANTING THE WRIT

1. On a motion for summary judgment the court must

accord the party against whom the motion is made the

most favorable inferences which can be drawn from the

facts presented in support of the motion. Although the

Fenton case on which the district court relied applied this

principle in part in finding the student to be the aggressor

in his utterance of the word ‘‘prick,’’ the district court in

petitioner’s case wholly failed to apply this fundamental

principle, and in fact, found facts which were contrary to

the uncontroverted evidence presented on the motion. The

Second Circuit, although compelled by this court’s ruling

in Adickes as well as by its own precedents established

subsequent to Adickes to reverse the district court by

reason of its failure to apply the most favorable inference

fule, adopted the district court’s findings of fact, and af-

firmed the judgment of dismissal without an opinion. This

action on the part of the Second Circuit is clearly contrary

to this court’s mandate to the Second Circuit in Adickes.

2. The Second Circuit’s rejection of first amendment

protection for petitioner’s alleged abusive utterance does

not square with the Fourth Circuit’s recognition of first

amendment protection to a student’s admittedly vulgar ex-

pression in Thonen accorded by both the district court and

the court of appeals there, and under less compelling cir-

cumstances than those which gave rise to petitioner’s ut-

terance. Both the district court and the Second Circuit

misapply the doctrine of Chaplinsky to the operative facts

in this case. Consequently, clarification of the cir-

cumstances in which Chaplinsky is applicable is warranted

by this court in view of the lack of reference to Chaplinsky

in Thonen under essentially the same circumstances as are

found in this case.

ARGUMENTS

1. In his brief before the Second Circuit petitioner’s

primary argument was that significant factual findings

made by the district court were not supported by the

evidence. Respondents made the motion for summary

judgment in an extraordinary manner, namely, without

any evidentiary support from the substitute homeroom

teacher who did not file any affidavit in support of the

motion. The only relevant evidence presented by the

respondents consisted of excerpts from _petitioner’s

deposition, by means of which they attempted to convey

to the court the impression that petitioner offered no ex-

planation as to why he uttered the word ‘‘prick,”’ referring

to the deposition at (18). However, arrayed against this

solitary reference was yet another reference in the deposi-

tion, although not mentioned by respondents, in which

petitioner at (19) indicated that he used the word because

respondent Willis slammed the door in his face and almost

caught his hand in the door.

From this point the evidence only improves from peti-

tioner’s viewpoint, consisting of corroborating affidavits

from petitioner (41) and a student witness in the

homeroom (47), and an affidavit from petitioner’s father

based upon his questioning of the substitute homeroom

teacher at a conference in the principal’s office (29)—all

submitted in opposition to the motion and in support of

complaint allegations that the word ‘‘Prick’’ had been ut-

tered by petitioner out of shock and anger at having the

door slammed in his face by respondent teacher to the

point of nearly catching his hand in the door (3-4).

Notwithstanding this evidence, the district court

found as fact, among other things, that petitioner uttered

the word ‘‘prick’’ because he was annoyed that the respon

dent teacher had refused to let him into the homeroom

without a pass (48-49), and that the teacher had only

8

abruptly closed the door behind petitioner (48-49). And,

with this inaccurate judicial assessment of the motion

evidence, petitioner’s role was changed from that of a vic-

tim of agression to that of an aggressor. It is one thing for

petitioner to have uttered an objurgation out of anger at

having a door slammed in his face which nearly injured

him—a tragically human posture. It is quite another thing,

however, for petitioner to have uttered the same objurga-

tion only because the teacher refused him admittance into

the classroom. As petitioner’s counsel was quick to point

out to the Second Circuit in his opening statements on oral

argument, if it was a case of petitioner reacting because he

was refused admittance to the classroom, petitioner would

not be in court today (March 25, 1980).

The endorsement of the district court’s imprecise fac-

tual findings by the Second Circuit in petitioner’s case is

uncharacteristic of that court upon a plenary evidentiary

record. See Russo v. Central Sch. Dist. No. 1, Towns of

Rush, Etc., N.Y., 469 F.2d 623 (2nd Cir., 1972), cert.

den., 411 U.S. 932 (1973). As Chief Judge Kaufman said

in Russo, supra, at pages 628 and 629:

‘*... The need for precision and clarity in fact-

finding and the use of cold conclusory statements as a

shield to prevent penetrating the absence of facts is

made more significant because of the ‘clearly er-

roneous’ standard, for while errors of law are always

correctable by an appellate court, errors of fact rarely

are, unless an appellant can scale the high wall which

that standard places before him. It stands to reason

that unless due care is given to the process of fact fin-

ding, the reliability of the district court’s conclusions

will be subject to question, thus compelling a review-

ing court to scrutinize the findings with a sharper eye

than is ordinarily appropriate.’’

The Second Circuit obviously did not follow, in

petitioner’s case, its own counsel as set out above in

Russo.

Moreover, on motions for summary judgment this

court has expressly disapproved of the Second Circuit’s

practice in affirming a district court judgment which does

not accord the party against whom the motion is made the

most favorable inferences which can be drawn from the

moving party’s evidence. See Adickes v. Kress & Co., 398

U. S. 144, 157 (1970).

Further, in the wake of Adickes, the Second Circuit

has ruled that where, as in petitioner’s case, the factual

allegations in the pleadings of the party opposing sum-

mary judgment are supported by affidavits or other

evidentiary material they must be taken as true in ruling on

the motion. See First National Bank of Cincinnati v. Pep-

per, 454 F.2d 626, 629 (2nd Cir., 1972).

In the light of these holdings, there is no justification

for the action of the Second Circuit in not reversing the

district court’s factual findings in this case.

THE IMPACT OF ADICKES ON THE SECOND

CIRCUIT PANEL

The Second Circuit met the evidentiary question

presented in petitioner’s brief by avoiding it, and thus

dodged the bullet which the case presented. Scarcely had

petitioner’s counsel opened his oral argument on the

evidentiary question when the Chief Judge commenced the

court’s questioning of counsel about other aspects of the

case at the conclusion of which he announced that peti-

tioner’s argument time was up. Thus, counsel never got

the opportunity on oral argument to drive home the im-

pact of Adickes on the case.

10

This is not to say, however, that the rule in Adickes

was not on the minds of this particular Second Circuit

panel on March 25, 1980, the day assigned for oral argu-

ment in petitioner’s case. Petitioner believes Adickes was

on the panel’s minds, if only in connection with Rodriguez

v. Board of Education of Eastchester Union Free School

District, No. 954, which was argued before the same panel

on March 26, 1980, the same day that the panel handed

down its judgment of affirmance in petitioner’s case.’

Rodriguez involved a civil rights action under Title

VII of the 1964 Civil Rights Act in which the teacher

Rodriguez charged the Board of Education with sex

discrimination in its job transfer practices and sought in-

junctive relief to bar her transfer. Rodriguez moved for an

injunction pendente lite in the district court and the defen-

dants moved for dismissal for failure to state a claim. The

district court ultimately denied plaintiff’s motion and

granted defendants’ motion. In reversing, the Second Cir-

cuit (Kaufman, Ch. J.) said (p. 2706):

‘*...In granting this motion, the district judge

stated that he was acting pursuant to Fed. R. Civ. P.

12(b)(6). Nevertheless, his extensive reliance upon

facts de hors the pleadings presented in connection

with the preliminary injunction motion, had the ef-

fect of making his disposition, at least in part, as one

granting summary judgment for defendants pursuant

to Fed. R. Civ. P. 12(c), 56. Because of the court’s ac-

3. In assigning 10 minutes for oral argument the clerk informed petitioner in

writing that the court reads the briefs in advance prior to alloting argument

time. Since this case and the Rodriguez case were assigned to the same panel

petitioner has to assume that the panel was familiar with the facts in both cases

prior to oral argument in either. The evasive posture of the panel on the

evidentiary question in petitioner’s case counseled petitioner to forego rehear-

ing as being a likely exercise in futility, and to await the panel’s ruling on the

evidentiary question in Rodriguez which occurred on May 2, 1980, and is

reported in 616 F.2d 2701 (2nd Cir., 1980).

11

tion, the judge was required to draw all reasonable in-

fererices and resolve all genuine disputes in favor of

the plaintiff.

It is clear from the foregoing that the panel was well

aware of this court’s holding in Adickes, and chose not to

apply it in petitioner’s case which did involve summary

judgment, while electing to apply the rule in Rodriguez

which did not involve summary judgment. The Second

Circuit is not empowered to pick and choose the cases in

which it will apply controlling precedents of this court,

and thus employ a double standard for evaluating

evidence in cases.

The Second Circuit’s disposition of petitioner’s case

represents an affront to the authority of this court which

clearly justifies this court’s intervention as prayed for

herein in the exercise of the court’s supervisory power.

Uneven handed administration of justice has no place in

our society which has chosen to govern itself by the rule of

law in preference to the rule of men.

2. The disposition of petitioner’s case by the Second

Circuit is significant for that which does not appear in the

endorsed opinion of the district court judge, namely, the

Chief Judge’s preoccupation with Chaplinsky v. New

Hampshire, 315 U.S. 568 (1942) during oral argument

from which he read verbatim almost the same text as ap-

pears in a dissenting opinion in Papish v. University of

Missouri Curators, 410 U.S. 667 (1973), at page 676. The

court left no doubt in counsel’s mind that the panel was of

the opinion that petitioner’s utterance must survive the

Chaplinsky test in order to pass muster as speech. And, in

the light of the panel’s disposition of petitioner’s case, it is

clear that petitioner’s utterance did not pass the Chaplin-

sky test in the panel’s view.

12

Set against this regressive perspective of the Second

Circuit is the Fourth Circuit’s holding in Thonen vy.

Jenkins, 491 F.2d 722 (4th Cir., 1973). which follows this

court’s holding in Papish wherein Tinker v. Des Moines

Independent School District, 393 U.S. 503 (1969), is cited

at pages 670 for the proposition that ‘‘state colleges and

universities are not enclaves immune from the sweep of the

First Amendment.”’

In Thonen the Fourth Circuit affirmed the district

court’s finding that disciplinary action against a student

author and a student editor of a campus newspaper for the

use and publication, respectively, of a vulgar word ad-

dressed to a university president in an open letter discuss-

ing parietal regulations infringed the students’ First

Amendment speech rights. Chaplinsky was not discussed

or even cited in the Fourth Circuit’s opinion in the case,

although the factual circumstances for its discussion were

_more compelling than those underlying petitioner’s case.

The Chaplinsky perspective shifts the battle for

speech rights from the educational environment to the

societal environment at large where even the most recent

holding of the Second Circuit recognizes that a student’s

normally restricted speech rights are enlarged. See Thomas

v. Board of Ed., Granville Cent. Sch. Dist., 607 F.2d 1043

(2nd Cir., 1979), cert. den., 48 L. W. 3536 (2/19/80),

which in and of itself should have served as a deterrent to

the Second Circuit’s endorsement of a lower court opinion

following Fenton v. Stear, 423 F. Supp. 767 (W.D. Pa.,

1976) as its role model. Any other view of the matter

would enable school administrators and teachers to enjoy

the best of both worlds while compelling the student to

wage battle on two fronts for vindication of his speech

rights.

The fallacy of applying Chaplinsky in the educational

environment is demonstrated in Fenton v. Stear, supra.

The Fenton court, while professing to accord the student

13 °

Fenton the most favorable inferences which could be

drawn from the evidence (in deference to Adickes), never-

theless, accorded the student the least favorable inference

which could be drawn from his use of the word ‘‘prick’’ in

the sentence ‘‘He’s a prick.’’ The Fenton court, like the

district court in petitioner’s case, assumed that the word

‘‘prick’’ was used in a vulgar sense even though there was

no evidence of anatomical reference associated with its

use.

But even the Fenton court realized the difficulties of

sustaining a successful criminal prosecution of the student

in the Chaplinsky context. The Fenton court said (p. 771):

However, it is doubtful, as plaintiff would have us

hold that Mr. Stear, instead of complaining to the

principal of the high school, was obliged to seek his

remedy under the criminal or civil law, for it seems

that announcing to a companierrin a voice overheard

by Stear ‘‘He’s a prick’’ could possibly be deemed de

minimus by a state criminal court, 18 C.P.S.A. sec-

tion 312, or civil court. Perhaps many persons would

have ignored the insulting remark, but whether or not

it should have been ignored is not a matter of concern

to a federal court.

And the Fenton court went on to cite Chaplinsky for the

proposition that insulting or fighting words uttered in a

public place are not protected speech.

The truth of the matter is that federal courts must be

concerned with how state courts regard objurgatory ex-

pression. Gooding v. Wilson, 405 U.S. 518, 520 (1972). In

Chaplinsky this court’s decision was influenced by the fact

that the highest court in the State of New Hampshire had

authoritatively construed the utterances to be offensive as

libelous within the meaning of the state statute.

14

To petitioner’s knowledge the courts in New York

have not construed the word ‘‘prick.”’ Yet, in People v.

Brown, 60 Misc. 2d 696 (1969), 303 N.Y.S.2d 981, the

court held that the word ‘‘Jackass’’ yelled in objurgatory

context across a public street to a policeman by the defen-

dant observing his mistreatment of a prisoner did not

constitute abusive language under the circumstances

within the statutory definition of the criminal offense of

harassment in section 240.25 of the New York Penal Law.‘

And, in People v. Benders, 63 Misc 2d 572 (1970), 312

N.Y.S.2d 603, citing Chaplinsky, among other cases, the

court held that a fleeting obscene word and gesture

directed to a policeman by a student to express a momen-

tary, emotional reaction of displeasure or dissatisfaction

or complaint, even if unjustified, was insufficient for con-

viction of the student under section 240.25.

In petitioner’s case, in addition to the Fenton misgiv-

ings relative to the public utterance of the word **prick,’’

there is an extension of the colloquy between the respon-

dent principal and petitioner’s father over what would be

an adult response to the respondent teacher’s precipitous

behavior (27), It was subsequently brought to the respon-

dent principal’s attention that one adult (who happened to

be a sitting federal judge) did not think petitioner’s ut-

terance to be a strong enough objurgatory response. He

said, ‘‘He (the teacher) should have been called worse’

(35).

The fact of the matter is that the word ‘‘prick’’ which

was uttered in half voice by petitioner in an anticipated

zone of privacy, namely, the solitude of the empty hallway

(41), has no less than seven (7) meanings in common usage

4. “‘A person is guilty of harassment when, with intent to harass, annoy or

alarm another person: *** 2. In a public place, he uses abusive or obscene

language, or makes an obscene gesture... ’’ 39 McKinney’s Consolidated

Laws of New York, section 240.25 (section 240.25, Penal Law).

15

according to the lexicons, only one of which can be deem-

ed vulgar. In the context in which it was used by peti-

tioner, it simply had reference to ‘‘a disagreeable or con-

temptible person’’—a context which aptly described the

character of respondent teacher’s anti-social behavior

toward petitioner in the same time frame. See Webster’s

Third New International Dictionary (1966 edition), page

1799; Webster’s New Collegiate Dictionary (1956 edition),

page 681, under the synonyms for the word ‘‘provoke.”’

If the test as enunciated in Chaplinsky is what men of

common intelligence would understand would be words

likely to provoke a fight, rather than what any particular

person understands such words to mean, then it is clear in

petitioner’s case that the offense is only in the eye of the

beholder. And petitioner should not have to bear the

burden of respondents’ ignorance. It is doubtful that the

words this court had in mind in Chaplinsky possess such

linguistic versatility or enrichment and cognitive value as

does the word which led to petitioner’s suspension.

Thus, in the context of this case the New York Court

of Appeals would be hard pressed to find a reference to

persona-non-grata to be offensive language within the am-

bit of section 240.25. At most, petitioner’s utterance

would likely be treated by that court as a private, ob-

jurgatory expression overheard only by a person as to

whom the utterance could not be deemed abusive or

obscene. Cf. People v. Chesnick, 302 N.Y. 58 (1950), 96

N.E.2d 87; People v. Pritchard, 27 N.Y .2d 246 (1970), 265

N.E.2d 532.

On the facts in petitioner’s case the Second Circuit’s

preoccupation with Chaplinsky is misplaced. As applied

here Chaplinsky collides head on with the doctrine enun-

ciated in Monroe v. Pape, 365 U.S. 167 (1961), io the ef-

fect that a person is responsible for the consequences

naturally flowing from his own actions. Thus, the

16

emergence of Chaplinsky in this context has to have a

“‘chilling’’ effect on speech inasmuch as it would virtually

forbid a student to be a ‘‘private’’ critic of his adult

tormentor. A First Amendment guarantee so construed

without breathing room will inevitably lead to the school

house becoming a citadel of privilege for maladjusted

teachers and administrators to intimidate students at will

and choke off their legitimate outcry against abuse, and

thereby retard or inhibit reform.

In view of the Fourth Circuit’s rejection of Chaplin-

sky’s relevance in Thonen, the Second Circuit’s courting

of Chaplinsky here is important because it represents the

nearest any court has come to sanctioning the monitoring

and regulation of student ‘‘thought.’’ And, in the light of

the Lakeland Dean’s guarded confirmation of the respon-

dent teacher’s proclivities as a provocateur and bully of

students (31, 36), this court is urged to consider to what

extent, if any, Chaplinsky should invade the school house

and be a force for restraint of student expression in addi-

tion to those restraints already imposed on students under

Tinker. °

5. It is to be noted that under the Lakeland School District regulations ap-

plicable here disciplinary action against students, in recognition of the Tinker

sanctions (38, 39), is not mandatory for their use of profane or abusive

language. The regulation states (39), ‘‘Some other acts for which suspension

would be considered are: *** 6. Profanity or abusive language.”’

17

CONCLUSION

For the reasons asserted herein petitioner’s applica-

tion for a Writ of Certiorari should be granted by the

court.

Respectfully submitted,

ANTONIO MARENO

3505 Tulip Drive

Yorktown Heights, N.Y. 10598

Attorney for Petitioner

June, 1980

la

APPENDIX A

OPINION OF THE DISTRICT COURT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ANTONIO MARENO, JR.,

Plaintiff,

Vv.

JAMES M. WALKER, et al.,

Defendants.

APPEARANCES:

ANTONIO MARENO, ESQ.

3505 Tulip Drive

Yorktown Heights, New York 10598

Attorney for Plaintiff

MURRAY STEYER, ESQ.

STEYER & SIROTA

235 Main Street

White Plains, New York 10601

Attorneys for Defendants

LAWRENCE W. PIERCE, D.J.

2a

OPINION AND ORDER

This is a civil rights action commenced pursuant to

section 1983 of Title 42, United States Code. Plaintiff An-

tonio Mareno, Jr., by his mother Kathlene C. Mareno,

contends that defendants James M. Walker and Robert F.

Willis infringed his constitutional right of free speech. He

seeks declaratory and injunctive relief as well as monetary

damages from these defendants. Defendants have moved

for summary judgment. For the reasons that follow, the

motion is granted.

The essential facts involved in this action are not in

dispute. Plaintiff, a student at Lakeland Senior High

School in Shrub Oak, New York, arrived late at school on

the morning of January 15, 1979. He went directly to his

homeroom class, but was refused admittance at the

classroom doorway by defendant Willis who is a member

of the school’s faculty. Willis directed him to obtain a tar-

dy pass from the school’s principal, defendant Walker.

Willis then abruptly closed the classroom door behind the

plaintiff.

Annoyed by this apparent affront, plaintiff uttered

the word ‘‘prick’’ as he started to walk toward the prin-

cipal’s office. There is little doubt that plaintiff intended

to direct that utterance to defendant Willis. Willis

overheard the comment and called plaintiff back and ver-

bally reprimanded him. Plaintiff subsequently went to the

principal’s office and secured the required pass. He was

then admitted to his homeroom class.

At the conclusion of the class, plaintiff was escorted

by Willis to the principal’s office. Disciplinary pro-

ceedings were commenced against plaintiff at the in-

sistence of defendant Willis. Plaintiff was ultimately

suspended from school by defendant Walker, the prin-

cipal, for one day on the ground that plaintiff had used

language which violated the school’s rule barring the use

3a

of profane or abusive language in school. The suspension

was noted on plaintiff’s school record.

Plaintiff contends that his use of the word ‘‘prick’’ in

this instance was not subordination nor disorderliness and

that he should not have been subjected to discipline. He

contends that his utterance was appropriate under the cir-

cumstances and protected under the First Amendment to

the United States Constitution. The defendants by their

actions, he argues, violated his constitutional right of free

speech by their actions.

The Court does not agree. The constitutional right of

free speech is not an unfettered right. For example,

abusive language which inflicts injury or which tends to in-

cite an immediate breach of the peace is not within the

scope of the First Amendment. Chaplinsky v. New Hamp-

shire, 315 U.S. 568 (1942). More importantly here,

however, although an individual’s constitutional rights are

secured on campus as well as off, ‘‘[c]ourts do not and

cannot intervene in the resolution of conflicts which arise

in the daily operation of school systems and which do not

directly and sharply implicate asic constitutional

values.” Epperson v. Arkansas, 393 U.S. 97, 104 (1968)

(emphasis added). Therefore, mere disciplinary acts of a

school administrator or faculty member are not matters

for a federal court’s review absent evidence of conduct

which rises to the level of violation of specific constitu-

tional guarantees. These limitations on federal court

review apply to civil rights actions under section 1983.

Wood v. Strickland, 420 U.S. 308, 326 (1975).

The Court finds that plaintiff’s claims only inciden-

tally involve plaintiff’s constitutional right of free spee ch,

if at all. The undisputed facts indicate that plaintiff was

being disciplined for his insolence and not for the purpose

of curtailing his right of free speech. Furthermore, the

plaintiff’s utterance was not within the ambit of the First

Amendment, but rather was speech in the nature of

4a

fighting words, or lewd, obscene or profane and in the

context of its use by the plaintiff, is not constitutionally

protected speech. Fenton v. Stear, 423 F. Supp. 767, 771

(W.D. Pa. 1976). Since plaintiff's utterance, under the cir-

cumstances, was not constitutionally protected and since

the undisputed facts otherwise fail to support a claim for

infringement of civil rights under section 1983, the defen-

dants’ motion for summary judgment is hereby granted.

SO ORDERED.

Dated: New York, New Yor

November 2, 1979

LAWRENCE W. PIERCE

U.S.D.J.

5a

APPENDIX B

JUDGMENT OF THE DISTRICT COURT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ANTONIO MARENO, JR.,

Plaintiff,

-against-

JAMES M. WALKER, et al.,

Defendants.

Defendants having moved the Court for summary

judgment, pursuant to Rule 56, of the Federal Rules of

Civil Procedure, and the said motion having come on

before the Honorable Lawrence W. Pierce, United States

District Judge, and the Court thereafter on November 8,

1979, having handed down its opinion granting the said

motion, it is,

ORDERED, ADJUDGED and DECREED: That the

complaint be and it is hereby dismissed.

Dated: New York, N.Y.

November 14, 1979

s/Raymond F. Bunghardt

Clerk

6a

APPENDIX C

JUDGMENT OF THE COURT OF APPEALS

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on the

twenty-sixth dayof March one thousand nine hundred

and eighty.

Present:

HONORABLE IRVING R. KAUFMAN, Chief Judge.

HONORABLE THOMAS J. MESKILL, Circuit Judge.

HONORABLE CHARLES L. BRIEANT, JR.,

District Judge sitting by designation

ANTONIO MARENO, JR., a minor 16 years of age,

by his mother and next friend,

KATHLENE C. MARENO,

Plaintiff-Appellant,

v.

JAMES M. WALKER, individually and as Principal

of Lakeland Senior High School, Shrub Oak, New York,

and ROBERT F. WILLIS, individually and as a Substitute

Homeroon Teacher in Lakeland Senior High School,

Shrub Oak, New York,

Defendants-A ppellees.

Appeal from the United States District Court for the

Southern District of New York.

Ja

This cause came on to be heard on the transcript of

record from the United States District Court for the

Southern District of New York, and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that the judgment

of said District Court be and it hereby is affirmed on the

opinion of Judge Pierce.

s/Irving R. Kaufman

IRVING R. KAUFMAN, Chief Judge

s/Thomas J. Meskill

Thomas J. Meskill, Circuit Judge

s/Charles L, Brieant, Jr.

CHARLES L. BRIEANT, JR.

District Judge