# Petition — Mareno ex rel. Mareno v. Walker > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2507%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 836 ## Text tr Bupremo Court, 5 FIGED i oD | : 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 SRN foe yc eh ece fo ee | IN Jao oc kckec cealan cee Looe 2 Cfisestions Presented... .. 2... ccc cc ccc ccc cence. 2 Pe MINOR k 5. oe cok ok ce 3 mumboment of the Case... oo. occ ccc cc cc ccecccee 4 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 Oe Oe Ob Op WE CE. gos i oe ch 7 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 PS oak v's bac oh keh cee eae ee 11 Pc a0 054s bck eee ee ee ee INES SGA cb ck bcdeecnecice ee 17 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- EE ees ss \ Ss ke ee aa ee 3 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2507%3A1. Public record. Not legal advice.