Opposition Brief — Long v. Alachua County School Board

No. 97-1477 MAY @ 1998

CLERK

In The

Supreme Court of the United States

October Term, 1997

€

ROBERT LONG and SHARON LONG, individually

and as parents and next friends of minor Daniel Long,

DANIEL LONG, JOHNNY MENDOZA, SR. and

MIRIAM MENDOZA, individually and as parents and

next friends of minor Johnny Mendoza, Jr., and

JOHNNY MENDOZA, JR.,

Petitioners,

VS.

SCHOOL BOARD OF ALACHUA COUNTY, FLORIDA,

and K-III COMMUNICATIONS CORPORATION,

Respondents.

+

On Petition For A Writ Of Certiorari

To The District Court Of Appeal Of Florida,

First District

a

RESPONDENTS’ JOINT BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

¢

THomas L. WittMer JOHN Rapey

Staff Counsel Counsel of Record

School Board of Alachua EvizaABETH MCARTHUR

County Katz, Kutter, HAIGLER,

620 East University Avenue ALDERMAN, Bryant &

Gainesville, Florida 32601 Yon, P.A.

352/955-7461 106 East College Avenue,

Suite 1200

Tallahassee, Florida 32301

850/224-9634

Attorney for Respondent Attorneys for Respondent

School Board of Alachua Primedia Inc. (f/k/a K-III

County, Florida Communications Corporation)

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Respondents disagree with Petitioners’ QUESTION

PRESENTED FOR REVIEW. The basis for the per curiam

affirmance by the Florida District Court of Appeal, First

District, cannot be known. If this Court were to issue the

writ, then the issues presented would include

whether Petitioners had legal standing to pursue this

action when all the petitioning students had gradu-

ated,

whether this case became moot because in 1996 the

school board terminated the news program that Peti-

tioners challenge, and

whether this action must be dismissed because Peti-

tioners failed to exhaust administrative remedies

under the Florida administrative procedures act.

If this Court reached a due process issue under the

Fourteenth Amendment to the United States Constitu-

tion, that issue would be

whether Respondents were entitled to summary judg-

ment because the requirements of the Fourteenth

Amendment were satisfied by a record demonstration

of the school board’s rational basis for a current events

curriculum which includes daily classroom newscasts

that include limited commercial content?

STATEMENT UNDER RULES 14.1(b) AND 29.6

Pursuant to Rules 14.1(b) and 29.6, the caption of this

case does not name all parties to the proceeding in the

court whose judgment is sought to be reviewed.

Ralph Hess and Darnell Rhea were listed as appel-

lants in the Florida District Court of Appeal, First Dis-

trict, in addition to the six Petitioners listed in the caption

of the Petition. Messrs. Hess and Rhea were dismissed for

lack of standing at the circuit court level, but the decision

below is reported as Hess v. School Board of Alachua

County, 704 So.2d 523 (Fla. lst DCA 1997).

In addition, during the course of the litigation below,

K-III Communications Corporation changed its name to

Primedia Inc., a publicly traded corporation. In other

words, Respondent K-III Communications Corporation is

now called Primedia Inc. Primedia Inc., formerly named

K-III Communications Corporation, has no parent com-

panies or nonwholly owned subsidiaries to be listed

under Rule 29.6.

ili

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ............

STATEMENT UNDER RULES 14.1(b) AND 29.6...

Smee Ae MPS os wee

A. PETITIONERS FAILED TO PROVIDE RELE-

VANT HISTORY OF THIS CASE...............

B. PETITIONERS’ VERSION OF THE FACTS IS

I oe ci otc oa a

REASONS WHY A WRIT OF CERTIORARI SHOULD

cog Becta 2. 7 BRIERE EE tee sree) Aces aera

A. NO IMPORTANT QUESTION OF FEDERAL

LAW WAS DECIDED BELOW AND NO CON-

FLICT EXISTS WITH DECISIONS OF THIS

gu Re ORE rea an ge a

1. THE DECISIVE REASON FOR THE PER

CURIAM AFFIRMANCE CANNOT BE

pce tt op TE ete

No

THE PER CURIAM AFFIRMANCE DOES

NOT CONFLICT WITH ANY DECISION OF

MI so et oe

B. NO CONFLICT EXISTS BETWEEN FLORIDA

AND CALIFORNIA COURTS AND NO COM-

PELLING REASON EXISTS TO GRANT THE

ene See Ce es es Sa

il

11

12

12

16

iv

TABLE OF CONTENTS - Continued

Page

1. NO CONFLICT EXISTS BECAUSE THE FLOR-

IDA FIRST DISTRICT COURT OF APPEAL

MERELY AFFIRMED PER CURIAM.......... 25

2. THE CALIFORNIA DAWSON DECISION

DOES NOT CONFLICT WITH THE FLOR-

ee we 8 errr et eer mr se 28

ee mt. sy ee a weenie mney orien Nye ee 29

TABLE OF AUTHORITIES

Page

CASES

Adams v. Robertson, 65 U.S.L.W. 4180, 117 S.Ct.

Rileey: Beet: Rae De AIOE ook ck 26

Adler v. Duval County School Board, 112 F.3d 1475

C530 Ae Pe sis a ee 14, 15

Banks v. California, 395 U.S. 708, 89 S.Ct. 1901, 23

eee Sed SIO ee ie ee re es 26

Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct.

2OiD, 96 1ee.ae Bee CRUE. iad cae 13

Brown v. Hot, Sexy and Safer Productions, Inc., 68

F.3d 525 (1st Cir. 1995), cert. denied, 516 U.S.

1159, 116 S.Ct. 1044, 134 L.Ed.2d 191 (1996)....17, 18

Dawson v. East Side Union High School, 28 Cal. App.

4th 998, 34 Cal. Rptr. 2d 108 (Cal. 6th Dist. 1994)

PPE Pe PET Oe MODY he Gay wey Ye MOS Ch 27, 28, 29

Department of Legal Affairs v. District Court of

Appem, 434 30.20 316 (Pia. 1969). 62 3 oe 25

Epperson v. Arkansas, 393. U.S. 97, 89 S.Ct. 266, 21

Ke Me REPO os ee awe eee 17, 24

Flagg Brothers v. Brooks, 436 U.S. 149, 98 S.Ct. 1729,

We AR: SO TON ke oko ce ee 14

Godwin v. State, 593 So.2d 211 (Fla. Fay | Resear 14

Gotthilf v. Sills, 375 U.S. 79, 84 S.Ct. 187, 11

Cee tee eee oe 27

Henschen v. City of Houston, 959 F.2d 584 (5th Cir.

dg a PE OE PE Tee eer ey pilon seca e Oe ames 14

vi

TABLE OF AUTHORITIES - Continued

Page

Herndon by Herndon v. Chapel Hill-Carrboro City

Board of Education, 89 F.3d 174 (4th Cir. 1996),

cert. den. sub. nom. Reinhard v. Chapel Hill-

Carrboro City Board of Education, __ U.S. __,

117 St. 9, 196: L.Ed.26 G57 C997) 2600.55 5 18, 19

Hess v. School Board of Alachua County, 704 So.2d

at LOR SOR EK APP a iiss ckani savas eeues a. 3, 42

Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76

SRE Der. CAPO: os Ki cere eeemsedhs pep hag bed seks 26

Immediato v. Rye Neck School District, 73 F.3d 454

(2d Cir. 1996), cert. denied, __ U.S. __, 117 S.Ct.

RR eae.) ern ere oe ny ee 19

Jacksonville Television, Inc. v. Shorstein, 608 So.2d

Ore Aree: Ge COCA POOR! cosas ie baa ees acne cee aus 14

Memphis Light, Gas & Water Division v. Craft, 436

U.S. 1, 96 SAA. 1554, 56 L.bd.2a 30 (i978). ....... 13

Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67

Rm, MOGZ. (ERR a io 5h ods eas 56, 47,-18, 22, 23, 24

M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 136

Se OFS CAP POD viv canvannetunsevetpeuweees 16, 23

Ouimette v. Babbie, 405 F.Supp. 525 (D.Vt. 1975) ..... 19

Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61

Lae 108 CAG cece hei MG) 37; 2a, 22, 25

Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571,

OF be. TOTO CISES) 06s onsen BG, 37, 48, 21, 4%, 223

Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438,

OB 5. See GES CIN vaio asp taesi kok cane eeres neers 21

————————————————e

Vil

TABLE OF AUTHORITIES - Continued

Page

Radiation Technology, Inc. v. Ware Constr. Co., 445

TU RU US UI i aa ee 27

Sandquist v. California, 419 U.S. 1066, 95 S.Ct. 651,

Se Ree es ee oo sano ce ae bh beb bake 26

Sherman v. Community Consolidated School District

21, 980 F.2d 437 (7th Cir. 1992), cert. denied, 508

U.S. 950, 113 S.Ct. 2439, 124 L.Ed.2d 658 (1993) .... 19

Webb v. Webb, 451 U.S. 493, 101 S.Ct. 1889, 68

iene PE CARE ie d's ives oboe oe web Kae eww cd vk 26

Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32

Se ARO teil i ok MGR eRe RES 16, 21, 22, 24

UnNitTep States CONSTITUTION CITED:

Fourteenth Amendment........... 3k. 32, lo; 26, 19, 25

FLorIpDA CONSTITUTION CITED:

A Ts ee ye ha ise a en gee 1

Pe RG os ra ra rv eat ar ike ot 20

Unritep States Cope CIrep:

Te es ra ee a 26, 27

a Se oe Se 1, 13, 14, 17

FLorIDA STATUTES CITED:

Section 120.81, Florida Statutes (1997)................ 5

Section 120.52(15)(c)5., Florida Statutes (1995) ........ 5

Viil

TABLE OF AUTHORITIES — Continued

Page

Ruves CIrep:

NN SINE SANS 0 iG 6 cadens pecan dayasoahvns Zi, 27

Supreme Court Rule 10(b)............... 13, 23). 20a ae

SURGE SLOURG TERI FANG) oie c es eke ec tcewkesacebivs 11

ge i ge) ree reer tre cree ii

supreme Court Rule 84.1(e)Ui)... 0... cc cee ce ecneneens 11

IE SE TE Te 65 dene ade ations eieuvkas ii

PORT ES POR KAU isa e keh eWeek beads eae 4, 26

Pa as PARMMAMEIE) 0505 6855 600 dae oe es ces Owen ae 4

can, eee ie Se eee? We POR. ns vo cass skewed ecens 27

1

STATEMENT OF THE CASE

A. PETITIONERS FAILED TO PROVIDE RELEVANT

HISTORY OF THIS CASE.

Petitioners did not merely bring “an action under 42

U.S.C. § 1983 for declaratory and injunctive relief and

damages.” (Petition, p. 9)

In 1992, Petitioners sued the school board and Whit-

tle, K-III’s predecessor, solely for injunctive relief in an

effort to stop the daily showing of a TV news and current

events program, Channel One, in classrooms at some

schools operated by the school board. Petitioners’ Com-

plaint was based solely upon their Florida constitutional

right of privacy under Article I, Section 23, Florida Con-

stitution. (R. I 1-12)

In 1993, the Circuit Court of the Eighth Judicial Cir-

cuit In and For Alachua County, Florida, granted Defen-

dants’ Joint Motion to Dismiss based on the court’s

conclusion that Petitioners’ Florida constitutional rights

of privacy were not violated by the school board decision

to allow its schools to use the Channel One programming.

(R. I 131-35) Petitioners were then allowed to file a Sec-

ond Amended Complaint, and then a Third Amended

Complaint. Petitioners’ Third Amended Complaint was

dismissed by the circuit court because of a “failure to

allege exhaustion of administrative remedies and for fail-

ure to allege an exception to the APA [Chapter 120,

Florida Statutes].” (R. III 460-66)

Petitioners then were given permission to file a

Fourth Amended Complaint. Petitioners’ Fourth

Amended Complaint was the pending complaint when

the circuit court granted summary judgment to Respon-

dents as affirmed in the per curiam decision brought to

this Court for review. The Fourth Amended Complaint

was based primarily upon Petitioners’ Florida constitu-

tional rights (R. III 490-509), but Petitioners tacked on a

2

brief one-sentence prayer for relief under the federal

constitution. (R. II] 509) No other reference to any issue of

federal law is found in the lengthy Fourth Amended

Complaint.

Prior to entry of summary judgment in favor of

Respondents and after several rounds of written discov-

ery, depositions of Petitioners were taken and filed.

Respondent school board submitted affidavits (R. VII

1160-1291, App. 1-40) from a school board chairman

(App. 2-4), two school board superintendents (App. 5-12),

five principals who saw students benefit from Channel

One in their schools (App. 13-28), an assistant superinten-

dent (App. 22-25), the school board’s Director of Instruc-

tional Technology (App. 29-32), and two media

specialists. (App. 33-40) These people observed Channel

One firsthand and, as experienced educators, attested to

its educational value. In sum, these school board affi-

davits show that Channel One was made available to

combat current events illiteracy as part of a program to

better educate students. Respondent K-III submitted an

affidavit (R. VIII 1305-1314, App. 41-46) which attested to

the wide acceptance of Channel One programming by

educators throughout the United States.

Petitioners did not contest the good faith intentions

of the school board, school administration, school princi-

pals or media specialists. Rather than contest any fact set

forth in the school board or K-III affidavits, Petitioners

only submitted affidavits that suggested that the Channel

One programming did not provide educational value in

some instances or in the opinion of Petitioners.!

1 Petitioners cite Roy F. Fox. (Petition, p. 12) Petitioners did

not refer to, or provide an affidavit from, Mr. Fox in the circuit

court. The first time Mr. Fox’s name is found in the record below

is in a similar cite in Petitioners’ Reply Brief filed with the

3

Without evaluating the Channel One programming de

novo, the Florida circuit court granted summary judgment

in favor of Respondents for the reasons set out in the

circuit court order appended to the Petition. (Petition, pp.

23-26) Basically the circuit court held, given the good

faith of the school board and schools, that it was for the

school board, not the court, to decide what current events

programs would be used in the public schools.? Peti-

tioners appealed to the State of Florida, First District

Court of Appeal, which affirmed without opinion. Hess v.

School Board of A.achua County, 704 So.2d 523 (Fla. 1st

DCA 1997). (Petition, pp. 21-22)3 Petitioners made no

effort to request the Florida intermediate appellate court

to certify any questions for review by the Supreme Court

District Court of Appeal. When Respondents moved to strike

that cite, Petitioners responded that the Fox cite was part of

Petitioners’ “Brandeis Brief” which the court could give as

“little or as much weight as it thinks appropriate.” Petitioners’

cite to Fox is inappropriate and impertinent to the issues

decided below and as such should be disregarded.

* Petitioners stated in a motion for rehearing filed with the

circuit court on December 20, 1996, that the court’s summary

judgment had to be clarified to facilitate their appeal to “the

highest appellate courts” (R. VII 1403); the circuit court’s denial

of their motion for rehearing and a rejection of their subsequent

appeal by the Florida First District Court of Appeal without

opinion has not caused Petitioners to rethink their announced

ambition to make this case a cause celebre for themselves.

3 The Honorable Joseph W. Little, counsel of record for

Petitioners before this Court, was also counsel to Petitioners at

the Florida circuit court and Florida district court of appeal

levels. However, the Petition is the first document at any level

identifying the University of Florida in reference to Mr. Little.

The University of Florida has nothing to do with this case.

4

of Florida. See Fla.R.App.R. 9.030(a)(2)(v) and 9.330.

Instead, Petitioners now ask this Court to review a per

curiam affirmance by a Florida intermediate appellate

court and to consider a defined issue which may not have

been passed upon below, which was never expressly

addressed by any Florida court, and which Florida’s

highest state court never had an opportunity to consider.

While the Fourth Amended Complaint was pending

in the circuit court, two separate events effectively extin-

guished the controversy presented by Petitioners: first,

the student Petitioners graduated from the Alachua

County schools; second, the Respondent school board

decided not to renew the Channel One contract in 1996. (R.

VII 1189-1190) Equipment used for the Channel One pro-

gramming was removed and the school board made other

arrangements for current events education. (App. 10)

Any injunctive relief that conceivably could have been

granted to Petitioners became totally unnecessary and

unwarranted. The school board and K-III argued to both

the Florida circuit court and the district court of appeal

that no Petitioner had standing to maintain the suit, that

the suit was moot, and that the possibility of nominal

damages and pursuit of an award of attorneys’ fees did

not provide an adequate present basis to keep the suit

pending. The circuit court specifically found, as admitted

by Petitioners, that “there is no ground for actual mone-

tary damages and this Court will not consider any such

claim.” (R. VI 1130) However, the circuit court denied

Respondents’ motion to dismiss the case as moot because

of the possibility of nominal damages. At the Florida

District Court of Appeal, the mootness and standing

issues were briefed and addressed during oral argument,

but the district court affirmed per curiam without opinion.

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5

B. PETITIONERS’ VERSION OF THE FACTS IS

INACCURATE.

Petitioners inaccurately imply that, because Channel

One was not a part of a specific course or a specific

graduation requirement, the school board made the deci-

sion to permit use of the Channel One programming for

reasons other than the educational! value of the Channel

One programming. (Petition, pp. 1 and 8) Petitioners’

implication cannot substitute for a foundation in the

record. The record below shows unequivocally that the

school board’s use of Channel One programming was

based upon the school board’s good faith belief that

students suffered from “current events illiteracy” and

that the program would serve the educational goal of

“bringing a common vocabulary of current events to stu-

dents.” (R. VII 1184-85)

In the Fourth Amended Complaint, Petitioners

alleged that the “Board's actions in permitting these curricu-

lums is a curriculum decision.” (R. III 493, underlining in

original) To emphasize this point, Petitioners underlined

the word “curriculum” in fifty consecutive paragraphs of

the Fourth Amended Complaint. (R. III 493-505)4

Moreover, the school board explained its rational basis

* When Petitioners’ Third Amended Complaint was

dismissed for failure to exhaust administrative remedies,

Petitioners attempted to argue that Channel One was a part of

the curriculum so that Petitioners could take advantage of an

exemption for curriculum decisions from review under the

Florida Administrative Procedures Act, Section 120.81, Florida

Statutes (1997) [successor to Section 120.52(15)(c)5., Florida

Statutes (1995)]. Therefore, the Fourth Amended Complaint has

allegations underscored which were added to avoid the prior

ruling of the circuit court that Petitioners failed to exhaust

administrative remedies.

6

for use of the Educational Network, a part of which is

Channel One, in eleven affidavits submitted to the circuit

court to support the school board’s motion for summary

judgment. (R. VII 1160-1291; App. 2-40) While Petitioners

may disagree with the school board and the schools that

decided to take advantage of the Channel One program-

ming, the good faith of the school board and schools in

trying to combat what the school board referred to as

“current events illiteracy” and to give students the best

possible education has not and cannot be challenged.

Beyond its determination that there was a rational basis

for the school board and school decisions, the circuit

court left to the school board and schools the determina-

tion of the educational value of the Channel One program-

ming.

No record support exists for Petitioners’ argument

that the school board and schools used the Educational

Network, including Channel One, as “a means of raising

money” or as “a means of financing STATE’s programs.”

(Petition, pp. 13-14) It is true that the school board and

schools received equipment at no cost as a part of the

Channel One programming. However, the insinuation by

Petitioners that the school board and schools were pri-

marily motivated to contract for Channel One program-

ming in order to get free equipment has not one iota of

support in the record. The record instead shows that the

school board and the schools elected to use the program-

ming for its educational value, not as a means to acquire

teacher education materials and audio visual equipment.

And in assessing the educational value of the program-

ming, the school board and the schools understood that

there would be limited commercial content in Channel

One. However, the commercial content was found to be

MT i

7

“incidental” to the educational purpose of the program.

(App. 5-40)

Petitioners also inaccurately describe how the Chan-

nel One programming was implemented. The school

board entered into a written contract with K-III, called

the District Agreement, which made the Educational Net-

work, including Channel One programming, available to

schools operated by the school board. Some schools (with

the concurrence at the school level of the principal, fac-

ulty, media specialist, and parents) chose to implement

the program on the terms approved by the school board;

other schools chose not to implement the programming.

The Channel One news programs were provided by

daily satellite transmissions to the participating schools

and ran “approximately twelve minutes and .. . include

not more than two minutes of commercial content.” (R. X

1642) Petitioners inaccurately tell the Court that “the

commercials are seamlessly integrated” and that K-III

“seamlessly integrates two minutes of commercial televi-

sion advertisements.” (Petition, pp. 1 and 6) While Chan-

nel One could not be shown without the commercial

content, the written contracts strictly limited the types of

commercials that could be shown and forbade “any cre-

ative technique that may confuse the viewer by blurring

the distinction between programs and commercials.” (R.

X 1650-52) Moreover, the school board negotiated a spe-

cial written contract provision that required the program-

ming to meet the standards of the community as

determined by the school board and the schools. (R. X

1641) The limited commercials were plainly separate and

distinct from the news itself as shown in the videotapes

that are a part of the record below.

Throughout the Petition, this Court is told that stu-

dents were required by the school board or the schools to

8

view Channel One. The record simply does not support

these assertions. Students were never compelled to watch

or listen to Channel One programs. The two Petitioners

who were formerly students in participating schools testi-

fied in deposition that when they were in the classroom,

they did not pay attention to Channel One. Former stu-

dent-petitioner Johnny Mendoza, Jr. testified that when

Channel One was shown, he and other students paid

attention only sometimes.> (R. VI 1099-1100, Mendoza Jr.

depo. p. 12) Former student-plaintiff Daniel Long testi-

fied in his deposition that even when he was in the

classroom, he chose not to pay any attention to Channel

One programs:

Q: How did you like Channel One?

A: Really never watched it that much. I

worked pretty much ali the way through it.

The first year, I think was my ninth grade

year, they had me - I went and sat in the

office in the mornings, so I didn’t watch

it. . . . My parents. They requested that I

was to move into the office so I didn’t have

to watch it. And last year and this year I’m

in drafting, so I work all the way through

the Channel One. I don’t really watch it at

all.” ,

(R. VI 1047, D. Long depo. p. 3, emphasis supplied) Other

students exercised the same freedom of choice. (R. VI

1054, D. Long depo. pp. 9-10)®

> Student Mendoza thought that the current events portion

was a waste of time because it was similar to news he got from

other sources; he chose not to pay attention to the commercials.

(R. VI 1097, 1105, Mendoza, Jr. depo., pp. 9, 17)

6 Student-plaintiffs Long and Mendoza may have been

bored, finding Channel One redundant with other commercial

ee eee Stee ee re Sc eee

9

The school board did not have a policy or practice of

compelling any student to be present while Channel One

was shown if the student or the student’s parents objec-

ted. Under the policy and practice of the school board

and the participating schools, no student who voiced an

objection, or whose parents voiced an objection, was ever

forced to be present while Channel One was shown. Prin-

cipals Jones, Islar, Stechmiller, and Boyd state in their

affidavits that at their schools, no student or parent ever

requested that a student be excused while Channel One

was shown. (R. VII 1223, Jones aff. p. 2 [App. 14]; R. VII

1241, Islar aff. p. 2 [App. 17]; R. VII 1259, Stechmiller aff.

p. 2 [App. 20]; R. VII 1263, Boyd aff. p. 3 [App. 23]) Dr.

Nelson reported that only one parent ever approached

him to ask that a student be excused: plaintiff Robert

Long. Mr. Long’s request was honored and plaintiff stu-

dent Daniel Long was “excused from the classroom when

Channel One was shown as requested by Mr. Long.” (R.

VII 1268, Nelson aff. p. 3 [App. 27]) In the Petition, the

Court is told that student Long’s departure from the

and news media, as suggested by paragraph 44 of their Fourth

Amended Complaint:

The content of the editorial segment of the Whittle TV

programs as part of board’s curriculum is readily

available to all or virtually all students in the public

media, including commercial and public TV and

radio, newspapers, new magazines and similar

outlets.

(R. II] 499; emphasis in original) Although these two students

may have otherwise sought out other sources of current events,

nothing in the record controverts the school board’s judgment

that considering the district as a whole, there was a problem with

current events illiteracy that needed to be addressed and

Channel One helped address the problem in the collective, good

faith judgment of the school board.

10

classroom as his parents requested “embarrassed and

humiliated” him such that his parents allowed him to be

present when Channel One was shown to help his “emo-

tional well being.” (Petition, p. 9) The cause of student

Long’s embarrassment was the narrow and extreme

views of his parents, who were the only parents that

requested their son or daughter to be excused. No embar-

rassment was caused by the school board.

The board policy was to accommodate parents and

students. The record unequivocally shows that every par-

ent who asked for an opt-out had the request honored.’

Superintendent Hughes put it this way:

As to Channel One, for example, principals

would be encouraged to allow students to be

excused from the classroom when that program

was shown where strong parental objections

were made known. To my knowledge, only one

parent asked that a student be excused from

watching Channel One and that student was

excused.

(R. VII 1205, Hughes aff. p. 4; App. 11) Petitioners never

disputed this policy and only argued that it was not

reduced to a written form. In addition, the record shows

that media specialists, principals, and students made pre-

sentations to the school board in public meetings where

Channel One programming was praised for its great value.

For example, the Board’s Director of Instructicnal Tech-

nology made a presentation at a public school board

meeting where he stated that he “personally observed

7 The Mendozas never objected or asked that Johnny Jr. be

excused while Channel One was shown. Instead, the student was

solicited to join this lawsuit by his teacher, original plaintiff Rhea

(who was dismissed for lack of standing by the trial court), and

Johnny Jr. then solicited his parents’ support. (R. VI 1095-96,

Mendoza Jr. depo. pp. 7-8)

Voth ok ot ae a

11

students benefit from Channel One programs in the

board’s schools” and that, based upon his own review of

the program materials, the program was “consistently of

high quality and educationally beneficial.” (R. VII 1189,

1270-71; App. 30-31) The school board obviously did not

satisfy each and every parent or student (as if that were

possible), but the school board certainly did not compel

any student to watch Channel One.

REASONS WHY A WRIT OF CERTIORARI

SHOULD NOT BE GRANTED

As discussed above, Petitioners’ Fourteenth Amend-

ment arguments were an afterthought below. In this case,

it is impossible to say whether and how any federal issue

was passed upon, even if one examines the unpublished

Florida circuit court order. (Petition, pp. 23-26) Contrary

to Rule 14.1(g)(i), the Petition fails to refer to parts of the

record where the courts below specifically addressed the

Fourteenth Amendment. For this reason alone, the writ

should not be granted.

Petitioners offer two theories to allow the writ, but

neither theory has merit. First, Petitioners assert that a

state court has decided an important question of federal

law in a manner that conflicts with relevant decisions of

this Court (Petition, pp. 11-14) as suggested by this

Court’s Rule 10(c). As discussed below in subsection A,

the decision below does not pass upon an important

question of federal law and does not conflict with any

decision of this Court. Second, as a fall-back, Petitioners

assert that a Florida court of last resort decided an impor-

tant federal question in a manner that conflicts with a

California court of last resort (Petition, pp. 14-18) as

suggested by this Court’s Rule 10(b). As shown below in

subsection B, however, no “last resort” decisions exist in

12

either state and no conflict exists between the decision

below and the California decision cited by Petitioners.

The per curiam decision addresses no federal issue. Hess v.

School Board of Alachua County, 704 So.2d 523 (Fla. 1st

DCA 1997). (Petition, pp. 21-22)

A. NO IMPORTANT QUESTION OF FEDERAL LAW

WAS DECIDED BELOW AND NO CONFLICT

EXISTS WITH DECISIONS OF THIS COURT.

1. THE DECISIVE REASON FOR THE PER CUR-

IAM AFFIRMANCE CANNOT BE DETER-

MINED.

Petitioners assert that this Court should exercise its

discretion to issue the writ because a Florida court has

allowed the school board and some of its schools to use

Channel One contrary to the Fourteenth Amendment in

violation of “the ambit of liberties acknowledged in prior

decisions of this Court.” (Petition, p. 13) It appears that

Petitioners generally assert that the decision below con-

flicts with relevant decisions of this Court on an impor-

tant question of federal law within the meaning of Rule

10(c).

The first point is that the Florida First District Court

of Appeal provided no indication of the reason why it

chose to affirm the circuit court order granting summary

judgment for Respondents. Therefore, it is impossible to

say that the decision brought to this Court for review

addresses any question of federal law or on its face

conflicts with any prior decision of this Court. The deci-

sion is a total nullity to anyone seeking to apply the prior

decisions of this Court.

The second point is that, even if this Court goes

behind the per curiam decision below to speculate as to

the underlying rationale of the Florida First District

PP OREIIA A Ses oo el ne ow ~ co

13

Court of Appeal, the underlying rationale cannot be

determined. Alternative grounds, other than a determina-

tion under the Fourteenth Amendment, were presented

to the court below.

One alternative rationale for an affirmance presented

and argued to the court below was mootness. After one of

the original plaintiffs was elected to the school board, the

school board decided to use alternative means of current

affairs education and ended the contract that allowed use

of Channel One programming. The decision to terminate

the District Agreement has now been fully implemented.

There is no present prospect for the school board to

reconsider use of K-III programming, and it would be

speculative to predict the terms of any future contract

that might arise between the school board and K-III. (R.

VII 1200-01; App. 10)

Nothing was left to enjoin and therefore Petitioners

could not establish any basis for injunctive relief. As to

damages, the circuit court entered an order stating that

“there is no ground for actual monetary damages and this

Court will not consider any such claim” (R. VI 1130) and

Petitioners claim only nominal damages. Potential nomi-

nal damages are not enough to avoid dismissal of this

case as moot under § 19838 or state law.?

® An asserted damages claim will keep the case alive only

where the plaintiffs establish that they suffered actual monetary

loss, and that their damages claim is “substantial”. See, e.g.,

Board of Pardons v. Allen, 482 U.S. 369, 370, n.1, 107 S.Ct. 2415,

2417, n.1, 96 L.Ed.2d 303 (1987); and Memphis Light, Gas & Water

Division v. Craft, 436 U.S. 1, 8-9, 98 S.Ct. 1554, 1560, 56 L.Ed.2d 30

(1978) (where claims for injunctive and declaratory relief have

become moot, a claim for compensatory damages would not be

moot where “the validity of respondents’ claim for damages is

not so insubstantial or so clearly foreclosed by prior decisions

14

Where students challenge school board decisions,

graduation of the students ends the basis by which the

students or parents have any right to maintain a chal-

lenge to a school board decision. Adler v. Duval County

School Board, 112 F.3d 1475 (11th Cir. 1997). In Adler,

students challenged school board action allegedly allow-

ing prayer in public schools, but during the appeal from

summary judgment for defendants, the students gradu-

ated. The court held that “any claim for equitable relief

has been rendered moot by the appellants’ graduations.”

112 F.3d at 1478. In this case, there is no possibility that

these Petitioners will be subject to the issues complained

of again, given that the student-petitioners have gradu-

ated. If the issues arise again for others, there would be

that this case may not proceed.”) (emphasis added); Flagg

Brothers v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1732, 56

L.Ed.2d 186 (1978) (although injunctive relief no longer

available, the court must reach merits of claim “if either

respondent can demonstrate that she has suffered monetary

damage by reason of the workings of [the challenged law]”)

(emphasis added); Henschen v. City of Houston, 959 F.2d 584, 588

(Sth Cir. 1992) (where injunction claim moot, only claims for

actual damages under § 1983 remain alive, where action

complained of caused actual harm that can be compensated, as

opposed to claim for intangible value of a constitutional right).

° Mootness was defined by the Florida Supreme Court in

Godwin v. State, 593 So.2d 211, 212 (Fla. 1992), as follows:

An issue is moot when the controversy has been

so fully resolved that a judicial determination can

have no actual effect. A case is “moot” when it

presents no actual controversy or when issues have

ceased to exist. A moot case will generally be

dismissed.

See, also, Jacksonville Television, Inc. v. Shorstein, 608 So.2d 592

(Fla. lst DCA 1992).

15

no temporal urgency that would preclude meaningful

judicial review. As such, exceptions to mootness are not

applicable. Adler, supra, 112 F.3d at 1478 (significant issue

of school prayer in graduation ceremonies would not be

reached based on mootness, where issue would never

again arise for those plaintiffs).

As a result, this case was moot as argued in Respon-

dents’ Joint Answer Brief filed with the Florida First

District Court of Appeal and as discussed during oral

argument before that court. Therefore, the Florida First

District Court of Appeal may have affirmed because it

believed the case was moot.

A second alternative rationale for the decision below

may be articulated in terms of the lack of standing for

Petitioners. The court below ruled that plaintiff Hess, as a

citizen and taxpayer, and plaintiff Rhea, as a teacher,

lacked standing to sue the school board, dismissing them

as plaintiffs by order of June 6, 1995 (R. V 843-44), a

ruling not appealed by Petitioners. The remaining Peti-

tioners sued either as students, or parents of students, at

schools using the K-III programming. The students grad-

uated prior to the appeal to the Florida District Court of

Appeal, leaving no Petitioner with a legally cognizable

interest in school board curriculum matters. (Init.Brf. 4; R.

VI 1044-1055; 1088-1111)

Perhaps the Florida First District Court of Appeal

affirmed because the court believed that Petitioners

lacked standing, but again there is no way of identifying

the deciding issue for the court below. In any event, the

decision of the Florida First District Court of Appeal in

this case says nothing about any federal question because

it says nothing other than “affirmed.” Certiorari is

unwarranted for that reason alone.

16

2. THE PER CURIAM AFFIRMANCE DOES NOT

CONFLICT WITH ANY DECISION OF THIS

COURT.

If this Court chooses to assume that the use of Chan-

nel One was approved with the District Court of Appeal

passing on the requirements of the Fourteenth Amend-

ment, then no conflict exists between what may have

been decided below by implication and this Court's prior

decisions. Petitioners argue that the school board has

violated the liberties of children and parents in

childrearing, family and schooling decisions

protected by the Fourteenth Amendment within

the ambit of liberties acknowledged in prior

decisions of this Court, including: Parham v. J.R.

(1979) U.S. 584, 600, 99 S.Ct. 2493, 2503, 61

L.Ed.2d 101; Wisconsin v. Yoder, 406 U.S. 205, 92

S.Ct. 1526, 32 L.Ed.2d 15; Meyer v. Nebraska

(1923) 262 U.S. 390, 402, 43 S.Ct. 625, 628 67

L.Ed. 1042; Pierce v. Society of Sisters (1925) 268

U.S. 510, 534, 45 S.Ct. 571, 69 L.Ed. 1070, and

ALLS. 0. S.LJ. ... US... (2906), 237 S.Ct. S35,

136 L.Ed.2d 473 (sic).

(Petition, pp. 12-13) Each of the five decisions of this

Court cited by Petitioners are discussed below. However,

before looking at the facts and law described in each of

those decisions, it is helpful to look at the bigger picture

of how the Fourteenth Amendment has been applied in

the context of schools.

“Courts are not school boards or legislatures.” Wis-

consin v. Yoder, supra, 406 U.S. 205, 235. This Court has

therefore given considerable deference to decisions made

by school boards. Yet, the school board and K-III both

recognize that the power of school boards is not limitless

and that constitutional limitations do apply. Where school

ON ee ey eee TN

17

board actions “directly and sharply implicate basic consti-

tutional values,” then a strict scrutiny standard is appli-

cable to test whether the alternative chosen by a school

board is the alternative that causes the least infringement

of rights. Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct.

266, 270, 21 L.Ed.2d 228 (1968). Where no fundamental

constitutional rights are at stake, then this Court refuses

to become involved unless there is a demonstration that a

school board acted in a totally arbitrary manner.

A recent case examining when basic constitutional

values are at stake in school board decisionmaking is

Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525

(ist Cir. 1995) cert. denied, 516 U.S. 1159, 116 S.Ct. 1044,

134 L.Ed.2d 191 (1996). In that case, students were com-

pelled to attend an assembly to witness an al’ gedly

“indecent” AIDS and sex education program conducted

by Hot, Sexy and Safer Productions. Students and parents

sued under 42 U.S.C. § 1983, alleging violations of their

substantive and procedural due process rights. The dis-

trict court dismissed the complaint for failure to state a

cause of action. The Court of Appeals affirmed. While

recognizing that government cannot foreclose parents’

right to choose a path of education, such as by choosing

home-schooling or private school rather than public

school, the court distinguished the fundamental paren-

tal/familial rights recognized in cases such as Pierce v.

Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070

(1925), and Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67

L.Ed. 1042 (1923), as follows:

We do not think, however, that this freedom

encompasses a fundamental constitutional right

to dictate the curriculum at the public school to

which they have chosen to send their children.

We think it is fundamentally different for the

state to say to a parent, “You can’t teach your

18

child German or send him to a parochial

school,” [as in Pierce and Meyer] than for the

parent to say to the state, “You can’t teach my

child subjects that are morally offensive to me.”

The first instance involves the state proscribing

parents from educating their children, while the

second involves parents prescribing what the

state shall teach their children. If all parents had a

fundamental constitutional right to dictate individu-

ally what the schools teach their children, the schools

would be forced to cater a curriculum for each stu-

dent whose parents had genuine moral disagreements

with the school’s choice of subject matter. We can-

not see that the Constitution imposes such a

burden on state educational systems, and

accordingly find that the rights of parents . . . do

not encompass a broad-based right to restrict the

flow of information in the public schools.

68 F.3d at 533-34 (citations omitted, emphasis supplied).

A similar result was reached in Herndon by Herndon v.

Chapel Hill-Carrboro City Board of Education, 89 F.3d 174

(4th Cir. 1996), cert. den. sub. nom. Reinhard v. Chapel Hill-

Carrboro City Board of Education, __ U.S. __, 117 S.Ct.

949, 136 L.Ed.2d 837 (1997), where parents and students

challenged on due process and privacy grounds a school

board requirement that students perform 50 hours of

unpaid community service as a condition of graduation.

The community service had to be performed after normal

school hours and there was no opt-out provision for

objecting students. The district court granted summary

judgment for defendants and Herndon by Herndon

affirmed.

In rejecting the argument that the parents’ fundamen-

tal constitutional right to direct the education of their

children was implicated, the court distinguished Meyer v.

Nebraska, supra, Pierce v. Society of Sisters, supra, and held

as follows:

ee

tte a abd aie VIER tne nee,

CRE AE NR ie ten 0S et Beeld Sed ee BOP) Wm te ee 1 dP oe tev

19

From Meyer to Runyan, the Supreme Court has

stated consistently that parents have a liberty

interest, protected by the Fourteenth Amend-

ment, in directing their children’s schooling.

Except when the parents’ interest includes a

religious element, however, the Court has

declared with equal consistency that reasonable

regulation by the state is permissible even if it

conflicts with that interest. That is the language

of rational basis scrutiny.

89 F.3d at 179. See also Immediato v. Rye Neck School Dis-

trict, 73 F.3d 454, 461 (2d Cir. 1996); cert. denied, __ US.

__, 117 S.Ct. 60, 136 L.Ed.2d 22 (1996).

The court in Ouimette v. Babbie, 405 F.Supp. 525 (D.Vt.

1975), dismissed a constitutional challenge to a student's

suspension for refusing to attend a required physical

education class. Plaintiffs in that case sought to debate

the educational value of the school board’s curriculum

decision, but the court held that deference to the school

board’s judgment was required:

While there is a legitimate entitlement to a pub-

lic education provided by the State, free from

impairment of protected liberties, there is no

right under the paramount law to receive a pub-

lic education on special terms and conditions

designated by the student.

405 F.Supp. at 530.!°

10 Likewise, in Sherman v. Community Consolidated School

District 21, 980 F.2d 437 (7th Cir. 1992), cert. denied, 508 U.S. 950, 113

S.Ct. 2439, 124 L.Ed.2d 658 (1993), the court confirmed the

government's right to regulate public schools, as well as the right to

insist that “those who cannot accept the result exercise their right

and select private education at their own expense.” Id. at 444-45

(citations omitted). School boards may set curricula bounded only

by the Establishment Clause, “even though pupils may find the

books and classroom discourse offensive or immoral.” Id. at 445.

20

These cases recognize that parents and students, like

Petitioners, plainly have a right to oppose use of Channel

One programming before the school board in a public

meeting. But if Petitioners choose to use the public

schools, they must accept curriculum decisions of the

school board elected to make those decisions, so long as

the decisions are not wholly arbitrary. Courts have never

recognized any fundamental constitutional rights on the

part of parents or students that would trigger strict scru-

tiny of school board curriculum decisions that are chal-

lenged on strictly secular grounds. And Petitioners in this

case admittedly only challenge Channel One on secular

grounds. (Petition, pp. 14-15)

The applicable test in this case then is whether the

school board was arbitrary in authorizing its schools to

use Channel One.!! It is clear that the school board was

acting within its authority under Florida law because the

Florida Constitution gives school boards the power “to

operate, control and supervise” the public schools. Arti-

cle IX, § 4, Fla. Const. Moreover, the record below clearly

established the school board’s good faith determination

that Channel One did serve to combat “current events

illiteracy” where schools opted to use the programming.

(App. 1-46) Petitioners believed differently than the

school board, but such disagreement is no indication that

the school board’s decision was arbitrary. The Florida

circuit court found that the record contained a rational

basis for the school board to use Channel One at some

schools, a decision that the District Court of Appeal chose

11 Petitioners concede that they have no objection from a

procedural standpoint. The school board acted in noticed public

meetings where Petitioners spoke in opposition to Channel One.

21

not to expressly address. Now the Petitioners seek to

have this Court find error in that factual finding, a reason

that “rarely” supports issuance of a writ under Rule 10.

Turning to the five cases of this Court cited as being

in conflict with the decision below, the first cited decision

is Parham v. J].R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d

101 (1979). In Parham, the Court was faced with balancing

the rights of a child not to be confined in a mental

hospital and broad parental authority over minor chil-

dren in the context of a Georgia statute that allowed

parents to commit their children to mental hospitals. On

the one hand, the children have a fundamental liberty

interest “in not being confined unnecessarily for medical

treatment.” 99 S.Ct. 2493, 2503. On the other hand,

Our jurisprudence historically has reflected

Western civilization concepts of the family as a

unit with broad parental authority over minor

children. Our cases have consistently followed

that course; our constitutional system long ago

rejected any notion that a child is ‘the mere

creature of the State’ and, on the contrary,

asserted that parents generally ‘have the right,

coupled with the high duty, to recognize and

prepare [their children] for additional obliga-

tions.’ Pierce v. Society of Sisters, 268 U.S. 510,

535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). See

also Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct.

1526, 1532, 32 L.Ed.2d 15 (1972); Prince v. Massa-

chusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88

L.Ed. 645 (1944); Meyer v. Nebraska, 262 U.S. 390,

400, 43 S.Ct. 625, 627, 67 L.Ed. 1042 (1923).

99 S.Ct. 2493, 2504. The Court held that the fundamental

right of children not to be improperly confined required

the State through a neutral factfinder to determine

whether a child was to be voluntarily confined for a

mental illness. Unlike the facts in Parham, Petitioners do

22

not have fundamental constitutional rights to determine

the public school curriculum that suits them personally.

The school board, not Petitioners, determines the public

school curriculum.

Petitioners cite three of the cases cited by the Court

in Parham: Pierce, Yoder, and Meyer. In Pierce, the Court

was faced with an Oregon statute that compelled general

attendance at public schools and the Court held that the

Oregon statute unconstitutionally interfered with the lib-

erty interests of parents and students as to the education

of the students. Petitioners in this case clearly had the

choice of whether to home school, attend a private

school, or attend public school. Just because Petitioners

chose to use the public schools does not give Petitioners a

right to control the curriculum that the school board and

schools chose to implement.

In Yoder, this Court recognized that Wisconsin could

not compel Amish students to attend a formal school

after they had graduated from eighth grade. The Court,

in view of a freedom of religion claim and record show-

ing that the Amish had demonstrated an ability to infor-

mally educate their minor students, found that Wisconsin

could not compel Amish students to attend a formal

school until age sixteen. In the present case, Petitioners

have not asserted any religious claim and base their

Petition entirely upon secular grounds involving Peti-

tioners’ view that Channel One should not be a part of the

school board’s curriculum.

In Meyer, Nebraska law provided that no teacher

could teach in any language other than English until after

the eighth grade. Robert Meyer was a teacher who was

convicted of a criminal offense because he taught a pupil

using the German language. This Court held the statute

unconstitutional because it was “arbitrary and without

23

reasonable relation to any end within the competency of

the state.” 43 S.Ct. 625, 628. Unlike Meyer, “Petitioners

readily concede that [school board] possesses wide dis-

cretion in prescribing curriculums.” (Petition, p. 12) The

school board was plainly acting within the ambit of its

authority. In addition, unlike Meyer, the school board did

not place any compulsion upon any student. The only

student who asked to be excused was excused. The stu-

dents who remained in the room were not forced to listen

to the Channel One program. Those students who listened

heard a news program like other news programs with

limited commercial advertisements deemed incidental to

the educational purpose. There was absolutely no com-

pulsion placed upon students to adopt the views of news

reporters or to buy products described in the limited

advertisements.

The last case cited by Petitioners was M.L.B. v. S.L.J.,

519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). In

M.L.B., this Court granted a petition for writ of certiorari

where a mother’s parental rights were terminated by the

State of Mississippi. The Court determined that Missis-

sippi could not terminate an indigent parent’s right to

raise her children where the parent did not have suffi-

cient money to pay for a transcript and filing fees. Where

parental rights are being permanently terminated as in

M.L.B., or a child is confined in a mental hospital as in

Parham, the permanence and fundamental nature of a

state’s intrusion into the liberty interests of a parent and

child, outside the context of the public schools, is mani-

fest and far different than the curriculum decision

involved in this case.

In the context of public education, when a state tries

to take away private schools as an option (Pierce), or

24

impinges upon an established sect’s right to school infor-

mally after eighth grade graduation (Yoder), or provides

that English is the only lawful instructional language

(Meyer), this Court has provided close scrutiny of the

reasons that support the supposed public purpose. How-

ever, this Court has never made general curriculum deci-

sions for school boards. Courts do not decide curriculum

matters de novo, but rather give considerable deference to

elected school boards.

The record in this case shows that the school board

acted in good faith and with the support of trained edu-

cators to combat current affairs illiteracy by allowing

schools to use Channel One programming. (App. 1-46) A

few parents and teachers disagreed and sued the school

board in an attempt to have a court give Petitioners a

second chance to present the arguments rejected by the

school board. However, the school board’s decisions were

not actions that “directly and sharply implicate basic con-

stitutional values.” Epperson v. Arkansas, supra. The record

shows a rational basis for the school board in the form of

affidavits attesting to the substantial educational value of

the programming and incidental nature of the commer-

cials; due process does not require this Court or any

court, to consider alternative means of current events

education and decide how students will be educated in

Alachua County, Florida. Even if the Florida First District

Court of Appeal had made its decision based upon its

interpretation of the requirements of the Fourteenth

Amendment, that decision is fully consistent with the

prior decisions of this Court.

25

B. NO CONFLICT EXISTS BETWEEN FLORIDA AND

CALIFORNIA COURTS AND NO COMPELLING

REASON EXISTS TO GRANT THE WRIT OF CER-

TIORARI.

Next, Petitioners seek to convince this Court that the

decision below creates a conflict, not with decisions of

this Court, but rather as a decision of a Florida court of

last resort with a decision of a California court of last

resort. However, as discussed here, the purpose and

intent of Rule 10(b) would not be served by issuance of a

writ under the circumstances presented in this case.

1. NO CONFLICT EXISTS BECAUSE THE FLOR-

IDA FIRST DISTRICT COURT OF APPEAL

MERELY AFFIRMED PER CURIAM.

No conflict exists under Rule 10(b) unless that con-

flict is manifest upon a reading of the two state decisions.

The per curiam decision of the Florida District Court of

Appeal has no precedential value and does not conflict on

its face with any other decision of any other court

because it does not say anything other than “affirmed.”

Department of Legal Affairs v. District Court of Appeal, 434

So.2d 310, 312 (Fla. 1983) (“The rationale and basis for a

[per curiam] decision without opinion is always subject

to speculation”). Even if one were to look beyond the

decision of the Florida District Court of Appeal to the

unpublished decision of the circuit court, no reference is

made by the circuit court to the requirements of the

Fourteenth Amendment to the Constitution of the United

States. No federal issue appears.

When, as here, the alleged highest state court is silent

on the federal question presented for certiorari, this

Court in the past has presumed that the federal issue was

not properly presented below unless and until the party

26

seeking certiorari carries the burden of demonstrating the

presumption to be inapplicable. Adams v. Robertson, 65

U.S.L.W. 4180, 117 S.Ct. 1028, 1029, 137 L.Ed.2d 203

(1997). In this case, Petitioners have neither addressed

this presumption in their Petition nor have they estab-

lished that the federal issue they define in the Petition

was “pressed or passed upon” below. Illinois v. Gates, 462

U.S. 213, 217-219, 103 S.Ct. 2317, 2321-2322, 76 L.Ed.2d

527 (1983). This requirement is critical to the Court's

jurisdiction under 28 U.S.C. § 1257 and its determination

of whether to grant certiorari. See, e.g., Adams, supra; Webb

v. Webb, 451 U.S. 493, 101 S.Ct. 1889, 68 L.Ed.2d 392

(1981). Given the fact that the First District Court of

Appeal’s decision below may have been premised upon

any number of theories, a federal issue has not been

clearly “passed upon” below and this Court has no clear

reason to grant certiorari. Webb, supra.

Even ignoring the absence of a clear federal issue

decided below, the instant Petition still fails to meet other

important criteria in Rule 10(b). Principally, this Court

should note that the decision of the Florida First District

Court of Appeal is not necessarily a decision by the

Florida court of last resort. In this case, Petitioners could

have requested that the First District Court of Appeal

certify their constitutional concerns as questions of great

public importance for review by the Supreme Court of

Florida. See Fla.R.App.P. 9.330. Petitioners failed to

request this relief below and thus failed to exhaust the

possibility of discretionary review by the highest Florida

state court. It comes as no surprise that this Court has

stringently enforced the requirement that petitioners

under 28 U.S.C. § 1257 exhaust all possible avenues of

state court relief. See Sandquist v. California, 419 U.S. 1066,

95 S.Ct. 651, 42 L.Ed.2d 662 (1974); Banks v. California, 395

27

U.S. 708, 89 S.Ct. 1901, 23 L.Ed.2d 653 (1969); Gotthilf v.

Sills, 375 U.S. 79, 84 S.Ct. 187, 11 L.Ed.2d 159 (1963)

(finding that petitioners’ failure to seek appeal of nonfi-

nal order by leave of the New York Appellate Division

upon certified questions voided jurisdiction under

§ 1257). Petitioners, of course, did not have an absolute

right to review in the Supreme Court of Florida, but the

Supreme Court of Florida has reviewed under its discre-

tionary review powers a per curiam decision of a District

Court of Appeal. Radiation Technology, Inc. v. Ware Constr.

Co., 445 So.2d 329 (Fla. 1983). Petitioners’ failure to seek

possible appellate relief in Florida emphasizes that the

district court of appeal did not decide any question of

great public importance and disqualifies the instant Peti-

tion from consideration under 28 U.S.C. § 1257. Gotthilf,

supra.

Moreover, the decision upon which Petitioners rely to

show a conflict, Dawson v. East Side Union High School, 28

Cal. App. 4th 998, 34 Cal. Rptr. 2d 108 (Cal. 6th Dist.

1994), is not a decision of the California court of last

resort as required by Rule 10(b). The Dawson case was a

decision by a California intermediate appellate court and

was never considered by the California Supreme Court.

Although the Dawson litigants could have petitioned the

California Supreme Court to review their appellate deci-

sion, see Cal. Rules of Ct. 28(a) and (b), they failed to do

so. Dawson is thus a decision of an intermediate appellate

body in California, and not a decision of the highest

California state court.

Against this backdrop, it becomes clear that Peti-

tioners have failed to meet even the most fundamental

jurisdictional or prudential considerations outlined in

Supreme Court Rule 10. Simply put, there is no decision

which clearly decides any federal issue. Even worse,

28

there is no decision from any state’s “highest court” on

the issue now urged in certiorari. Here, certiorari, given

this Court’s past decisions, must be denied.

2. THE CALIFORNIA DAWSON DECISION DOES

NOT CONFLICT WITH THE FLORIDA DECI-

SION.

In Dawson, the appellate court agreed with federal

public school cases recognizing that courts should not

substitute their judgment for that of the school boards.

The basic principle cited by the California court was that

courts should give substantial deference to the

decisions of local school districts and boards

within the scope of their broad discretion, and

should intervene only in clear cases of abuse of

discretion. . . . [T]he essentially factual question

whether particular noncurricular matters [i.e.,

commercials] are or are not incidental [to a pri-

mary educational purpose] must be addressed

in the first instance to the broad discretion of

local school districts and boards, and a court

would be justified in disturbing the local deci-

sion only upon a clear showing of abuse of the

local district’s or board’s sound discretion.

34 Cal.Rptr.2d at 117. The court in Dawson specifically

rejected the notion that a school board could not lawfully

contract to show the Channel One program in public

schools and determine for itself whether commercials in

Channel One were incidental to the educational benefits to

be achieved by giving students the routine opportunity to

be become better informed citizens.

The court in Dawson approved of Channel One where

no student was compelled to view Channel One. Here too,

no Petitioner, or any student, ever was compelled to view,

ee

29

believe, or be tested upon Channel One. Petitioners, how-

ever, state that the contract in Dawson “explicitly permit-

ted schools to allow students to ‘opt out’ of the daily

Channel One audience.” (Petition, p. 16) On this point,

Petitioners are mistaken. In Dawson, there was no exe-

cuted contract at all and the opt-out was done by mutual

consent. See Dawson, 34 Cal.Rptr.2d at 114. Just like in

Dawson, Petitioner’s were allowed to opt out without

objection from the school board or K-III. (R. VIII 1313,

Peters aff. p. 9; App. 45)

Petitioners try to make much of the fact that parents

in Dawson were informed in advance of their right to opt

out. Here the record shows that Petitioners never asked

the school board for any such notice; indeed, one Peti-

tioner did ask for an opt-out which was immediately

granted in a manner never complained of by any parent

or student. Here nothing could be achieved by informing

parents now of an opportunity to opt out of a program

that is no longer being used. Dawson was decided on the

basis primarily of California law and does not conflict

with the present case. The few courts that have been

faced with a challenge to Channel One have uniformly

upheld school board decisions to make Channel One avail-

able to help educate students.

CONCLUSION

The decision that this Court is asked to review liter-

ally says only “affirmed”. That per curiam decision may

not have been based upon any federal question.

Even if the Court assumes that a federal question was

implicitly decided below, there is no conflict with deci-

sions of this Court or between state courts of last resort.

No reason exists for this Court to apply its substantive

resources to address a constitutional issue where no case

30

or controversy exists because the program in question

was discontinued in 1996.

No fundamental constitutional rights are involved

which require strict scrutiny of the school board’s curric-

ulum decision. The litigation below involved only a dif-

ference of opinion as to how to educate students in

current affairs and the record supports the elected school

board’s decision to authorize its schools to use Channel

One with the concurrence of school principals, faculties,

media specialists, and parents. The Florida trial court did

not err in granting summary judgment in favor of

Respondents because the record shows that use of Chan-

nel One was not arbitrary. Channel One helped educate

students. Respondents respectfully ask that the writ be

denied.

Respectfully submitted,

THomas L. WitTMER JOHN Rapey

Staff Counsel Counsel of Record

School Board of Alachua EuizaBetH McArTHUR

County Katz, Kutter, HAIGLer,

620 East University Avenue ALDERMAN, Bryant &

Gainesville, Florida 32601 Yon, P.A.

352/955-7461 106 East College Avenue,

Suite 1200

Tallahassee, Florida 32301

850/224-9634

Attorney for Respondent Attorneys for Respondent

School Board of Alachua Primedia Inc. (f/k/a K-III

County Communications Corporation)

DATED: May 6, 1998

TABLE OF CONTENTS

TO RESPONDENTS’ APPENDIX

Page

Circuit Court Table of Contents for Board Affi-

II ae oot ac kh Sach ba owen indss seat Abaee te App. 1

Affidavits Submitted by School Board:

POMOIR: Be RMN Be aa he conn sec eekaceuss App. 2

ee ey eye Per ep eon T rere Frere App. 5

TE: Fe. ROIOE ing son cet ccncpivinc ca ees App. 8

ee Rr rere ere eee App. 13

ME Ns GU vs kee wis se ce eQieeeebateuscens App. 16

Gs PT rey eet App. 19

William D. Boyd, Ir cae pd tevandeaerseeese App. 22

Sees WU EN PONS 5 sv ck vn oS ciate oe inate App. 26

Se Fe PA 565 on 058 6d es App. 29

og go Err re ren eye eres App. 33

ET WE. SONI ons 5a cine nnnd4cessnaestapas App. 37

Affidavit Submitted by K-III:

COU Ss io o5 saws ao Fe deen Say enesavaenes App. 41

App. 1

IN THE CIRCUIT COURT OF THE

EIGHTH JUDICIAL CIRCUIT, IN AND

FOR ALACHUA COUNTY, FLORIDA

RALPH HESS, DARNELL RHEA, )

et al., )

Plaintiffs, ! CASE NO.

vs. ) 92-3214-CA

SCHOOL BOARD OF ALACHUA en |

COUNTY,

Defendant, )

and : ;

K-IIIT COMMUNICATIONS )

CORPORATION, )

Intervenor. ‘

TABLE OF CONTENTS FOR BOARD AFFIDAVITS

EE 1

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De ee nec cccceccs 5

werey G. Sepaier .................. oe 6

EEN TE 7

kek ved cece 8

Ne ev asccce 9

rc vcs vce cccceecs. 10

BOERS a 11

App. 2

AFFIDAVIT OF FRANK J. LAGOTIC

State of Florida

County of Alachua

Frank J. Lagotic (“Affiant”), being duly sworn,

deposes and says:

1. Affiant was elected to the Alachua County School

Board (“Board”) in November 1982 and served continu-

ously as an elected member of the Board from 1982 until

1994. Affiant served as chairman of the Board during

several periods between 1982 and 1994.

2. Affiant at all times when serving as a member of

the Board made a good faith, diligent, and earnest effort

to make decisions that would serve the educational needs

of students attending schools operated under the supervi-

sion of the Board.

3. As chairman of the Board, Affiant executed on

behalf of the Board a District Agreement with Whittle

Communications in May 1990, a copy of which is

appended to this affidavit as Exhibit 1 (14 pages, consist-

ing of a one-page form contract with my signature, a two-

page “Addendum” with my signature, and incorporated

general terms with exhibits A-C).

4. The District Agreement, Exhibit 1 to this affi-

davit, was approved at a duly-noticed, public Board

meeting on April 3, 1990. An accurate copy of the

approved minutes of that Board meeting is Exhibit 2

attached and made a part of this affidavit.

5. The Board decision to enter the District Agree-

ment as shown in Exhibits 1 and 2 to this affidavit was

made after considering a request from a middle school

App. 3

principal made directly to the Board and after the posi-

tive recommendation made by Superintendent Magann

and his staff.

6. I voted to approve the District Agreement as a

member of the Board because of my informed judgment

that the District Agreement enhanced and improved edu-

cational tools available at the school level, if the schools

decided through the school administration, school fac-

ulty, and school advisory council to use the Whittle Edu-

cational Network described in the District Agreement.

The individual schools made the decision to participate

or not participate.

7. I voted to approve the District Agreement as a

member of the Board solely based upon what I thought

was best to allow the schools to better educate students

attending schools under the general supervision of the

Board. My vote to approve the District Agreement was

honestly made in good faith without personal benefit to

me after considering debate before the Board, the recom-

mendations of staff, and after seeking out public com-

ment.

8. I reached the personal judgment that the educa-

tional goals of the Board’s schools would be served by the

District Agreement, Exhibit 1 to this affidavit, because it

made available to the individual schools educationally-

valuable resources.

9. The Board considered the renewal of the District

Agreement at a duly-noticed, public Board meeting on

March 16, 1993. An accurate copy of the approved min-

utes of that Board meeting is Exhibit 3 to this affidavit.

App. 4

10. I voted to renew the District Agreement as a

member of the Board solely based upon what I thought

was best to allow the schools to better educate students

attending schools under the general supervision of the

Board. My vote to renew the District Agreement was

honestly made in good faith without personal benefit to

me after considering debate before the Board including

description of the experience under the District Agree-

ment between 1990 and 1993, the recommendations of

staff, and after seeking out public comment.

11. In 1993, I reached the personal judgment that

the educational goals of the Board’s schools would be

served by renewal of the District Agreement, Exhibit 1 to

this affidavit, because it made available to the individual

schools educationally-valuable resources.

Further affiant sayeth not.

/s/ Frank J. Lagotic

Frank J. Lagotic

Sworn to and subscribed before me this 15th day of

August, 1996,

App. 5

AFFIDAVIT CF SUPERINTENDENT D. P. MAGANN

State of South Carolina

County of Georgetown

D. P. Magann (“Affiant”), being duly sworn, deposes

and says:

1. Affiant became superintendent of the Alachua

County Schools in 1981 when he was hired by the School

Board of Alachua County (“Board”) and he served in that

capacity continuously until 1991.

2. Affiant was a trained educator with experience as

a teacher and a principal in excess of 15 years prior to

becoming Board superintendent.

3. In his capacity as Board superintendent, Affiant

supervised a large staff necessary to operate the Board

schools and advised the Board as to decisions of the

Board through briefing papers, analysis, and comments

made at public meetings of the Board. In all of his activ-

ities as superintendent, Affiant always attempted to make

decisions and recommendations based on what was best

for the educational needs of students attending schools

operated under the Board.

4. Affiant recommended to the Board approval of

the District Agreement with Whittle Communications in

1990 when the Board approved that agreement.

5. Affiant’s positive recommendation to the Board

of the District Agreement with Whittle Communications

in 1990 was made after diligent inquiry and was based

upon what affiant thought would best serve the educa-

tional needs of the students attending schools operated

App. 6

by the Board. Affiant’s investigation of the District Agree-

ment included viewing video tape showing the TV pro-

gramming described in the District Agreement,

discussions with district staff including those with special

training in instructional technology, discussions with

school staffs including principals, and analysis of what

would best serve the educational needs of the students in

Board schools.

6. During Board meetings, the public was allowed

to raise and present issues of concern to the Board. After

approval of the District Agreement in 1990, and while I

remained Board superintendent into 1991, no member of

the public presented to the Board questions or concerns

regarding the District Agreement. In particular, the ques-

tion of whether the Board needed to adopt a formal

policy as to how individual students could be excused

from the classroom when the Channel One programming

described in the District Agreement was being shown

was not even requested to be brought before the Board. If

the Board had heard concerns from parents, principals,

students, or others about the District Agreement, then I

would have recommended to the Board that such con-

cerns be carefully addressed.

7. As a general policy, Affiant urged principals in

Board schools to attempt to accommodate individual par-

ent and student preferences as to individual educational

elements. As to Channel One, for example, principals

would be encouraged to allow students to be excused

from the classroom when that program was shown where

parental objections were made known.

App. 7

8. The Board and affiant allowed limited commer-

cialism in the Board’s schools when that commercialism

appeared to serve the educational purposes of the

schools. For example, school newspapers and yearbooks

have commercial content; commercial restaurants and

vending equipment are present in some schools; adver-

tisements are allowed at athletic facilities; commercials

also are present in the schools via the internet, via normal

commercial TV programming, and via schools use of

commercial newspapers as classroom aids. In each

instance, just as in connection with the District Agree-

ment, limited commercialism was allowed in the schools

based upon a judgment that the educational programs of

the schools would be thereby benefitted.

9. Affiant reached the conclusion that the limited

commercials allowed as a part of Channel One under the

District Agreement were incidental to the educational

benefits received under the District Agreement.

Further affiant sayeth not.

/s/ D. P. Magann

D. P. Magann

Sworn to and subscribed before me this 13th day of

August, 1996,

App. 8

AFFIDAVIT OF SUPERINTENDENT

ROBERT W. HUGHES

State of Florida

County of Alachua

Robert W. Hughes (“Affiant”), being duly sworn,

deposes and says:

1. Affiant became superintendent of the Alachua

County Schools in 199[2 /s/ RWH] when he was hired

by the School Board of Alachua County (“Board”) and he

has served in that capacity continuously to the present.

2. Affiant’s general educational and work experi-

ence is accurately shown in Exhibit 1 to this affidavit.

3. In his capacity as Board superintendent, Affiant

supervises a large staff necessary to operate the schools

operated under the Board and advises the Board as to

decisions of the Board through briefing papers, analysis,

and comments made at public meetings of the Board. In

all of his activities as superintendent, Affiant always

attempts to make decisions and recommendations based

on what is best for the educational needs of students

attending schools operated under the Board.

4. Affiant recommended to the Board renewal of the

District Agreement with Whittle Communications in 1993

when the Board decided to renew that agreement.

5. Affiant’s positive recommendation to the Board

of the District Agreement with Whittle Communications

in 1993 was made after diligent inquiry and was based

upon what affiant thought would best serve the educa-

tional needs of the students attending schools operated

eee een ee

App. 9

by the Board. Affiant’s investigation of the District Agree-

ment included discussions with school level personnel

who had views, positive and negative, with respect to the

District Agreement and Channel One including princi-

pals, teachers, and media specialists, discussions with

students and parents, discussions with district level staff

including those with special expertise in instructional

technology, firsthand assessment of how the District

Agreement had been implemented between 1990 and

1993, and analysis that showed renewal of the District

Agreement would be educationally beneficial to students

attending the Board schools.

6. Affiant recommended to the Board approval of

the continuation of the District Agreement with Whittle

Communications for the Board meeting held on March 5,

1996, when the Board decided to discontinue that agree-

ment. An accurate copy of the approved minutes of that

Board meeting is Exhibit 2 attached and made a part of

this affidavit.

7. As shown in the minutes for the March 5, 1996,

board meeting, positive citizen input regarding the Dis-

trict Agreement was received from a student government

representative, a teacher, and a former student.

8. Affiant’s positive recommendation to the Board

of the District Agreement with Whittle Communications

in 1996 was made after diligent inquiry into actual use of

the District Agreement and all comments made with

respect to the actual school use of Whittle’s Educational

Network as described in the District Agreement between

1991 and 1996. Affiant came to the conclusion that the

App. 10

District Agreement served the educational needs of stu-

dents attending schools operated by the Board and that

the limited commercials in Channel One were incidental

to educational benefits being realized by students as a

result of the District Agreement and the school decision

to use the District Agreement.

9. The Board decision to terminate the Whittle Dis-

trict Agreement has been implemented. All use of Whit-

tle’s Educational Network pursuant to the District

Agreement in schools operated by the Board ceased as of

June 1996. All equipment installed pursuant to the Dis-

trict Agreement has been removed and the Board has

otherwise provided for TV programming in the class-

rooms where such equipment has been removed.

10. The Board has expressed no interest in recon-

sidering its decision to terminate the District Agreement

and no staff analysis is underway which would precurse

consideration by the Board of any contract like the Dis-

trict Agreement.

11. There is no reasonable prospect that the Board

will even consider any contract like the District Agree-

ment for the 1996-1997 school year and it would be highly

speculative to try and predict what contract terms might

be acceptable to the Board in the future as to any contract

analogous to the District Agreement.

12. During Board meetings, the public is allowed to

raise and present issues of concern to the Board. During

the period 1991 through the present, no member of the

public has presented to the Board the question of whether

the Board needed to adopt a formal policy as to how

individual students could be excused from the classroom

i " a

Airwiiteities ust t ston "shih ene

at hd Pt tem welll aa nina Sa

awh,

App. 11

when the Channel One programming described in the

District Agreement was being shown. If such a proposal

were presented, it would have been my recommendation

to attempt to reasonably accommodate parental concerns

and the educational benefits that resulted from the Dis-

trict Agreement and the decisions by some schools to use

the Whittle Educational Network including Channel One.

13. As a general policy, Affiant has urged principals

in Board schools to attempt to accommodate strong indi-

vidual parent and student preferences as to individual

educational elements. As to Channel One, for example,

principals would be encouraged to allow students to be

excused from the classroom when that program was

shown where strong parental objections were made

known. To my knowledge, only one parent asked that a

student be excused from watching Channel One and that

student was excused.

14. The Board and affiant have allowed limited

commercialism in the Board’s schools when that commer-

cialism appeared to serve the educational purposes of the

schools. For example, school newspapers and yearbooks

have commercial content; commercial restaurants and

vending equipment are present in some schools; adver-

tisements are allowed at athletic facilities; commercials

also are present in the schools via the internet, via normal

commercial TV programming, and via schools use of

commercial newspapers as classroom aids. In each

instance, just as in connection with the District Agree-

ment, limited commercialism was allowed in the schools

based upon a judgment that the educational programs of

the schools would be thereby benefitted and the commer-

cials were incidental to that educational benefit.

App. 12

Further affiant sayeth not.

/s/ Robert W. Hughes

Robert W. Hughes

Sworn to and subscribed before me this 15th day of

August, 1996,

App. 13

AFFIDAVIT OF JEFFERSON W. JONES, JR.

State of Florida

County of Alachua

Jefferson W. Jones, Jr. (“Affiant”), being duly sworn,

deposes and says:

1. Affiant was principal at Santa Fe High School

during the 1989-1990 school year and remained principal

at Santa Fe until 1992.

2. Prior to 1990, affiant was trained as a professional

teacher and administrator and had experience as a

teacher and administrator in excess of 20 years.

3. As principal of Santa Fe High School, affiant exe-

cuted the Whittle Communications’ School Agreement.

An accurate copy of the School Agreement with affiant’s

signature is attached as Exhibit 1 to this affidavit.

4. Affiant is aware of and participated in the deci-

sionmaking process that led to the execution of the

School Agreement attached as Exhibit 1 to this affidavit.

The Santa Fe High School faculty and SAC (school advi-

sory council) supported the execution of the School

Agreement with Whittle. Affiant in addition considered

the positive recommendation of the school media special-

ist.

5. Prior to Affiant executing the School Agreement

attached as Exhibit 1 to this affidavit, Affiant concluded

that Whittle’s Educational Network as described in the

School Agreement would educationally benefit the stu-

dents at Santa Fe High School.

App. 14

6. After execution of the School Agreement, affiant

monitored use of the Whittle Educational Network at

Santa Fe High School and continued to believe that the

School Agreement served the educational needs of the

students after personally monitoring how it was used as

well as considering all comments from faculty, students,

and parents.

7. Asa result of the use of the Whittle Educational

Network at Santa Fe High School, many students were

better informed as to current events on an international

and national level and thereby better able to participate

as informed adult citizens and perform in related classes

like social studies, history, and life management skills.

8. During the period when I was principal of Santa

Fe High School no parent, student, or faculty member

asked to be excused from any TV programming under the

School Agreement.

9. The limited commercial content contained in pro-

gramming under the School Agreement (specifically as a

part of Channel One) was not significantly different than

other commercial materials which students are exposed

to everyday in schools. Such exposure comes from school

newspapers, school yearbooks, the internet, classroom

use of newspapers and normal commercial TV program-

ming, advertisements by restaurants and vending

machine companies, magazines used in the classroom,

advertisements in athletic facilities like scoreboards, and

other sources. In all of these instances, including the

commercial segments of Channel One, exposure of stu-

dents to commercial content is incidental to a program

that serves the overall educational program of the school.

App. 15

10. In summary, affiant believes that the Whittle

Educational Network including Channel One was educa-

tionally beneficial to students at Santa Fe High School.

Further affiant sayeth not.

/s/ Jefferson W. Jones, Jr.

Jefferson W. Jones, Jr.

Sworn to and subscribed before me this 14 day of

August, 1996,

App. 16

AFFIDAVIT OF MAE V. ISLAR '

State of Florida

County of Alachua

Mae V. Islar (“Affiant”), being duly sworn, deposes

and says:

1. Affiant was employed by the School Board of

Alachua County in 1989-90 as principal of F. W. Buchholz

High School and remained principal at F. W. Buchholz

until 1992.

2. Prior to 1990, affiant was trained as a professional

teacher and administrator and had experience as a

teacher and administrator in excess of 20 years.

3. As principal of F. W. Buchholz High School, affi-

ant executed the Whittle Communications’ School Agree-

ment. An accurate copy of the School Agreement with

affiant’s signature is attached as Exhibit 1 to this affi-

davit.

4. Affiant is aware of and participated in the deci-

sionmaking process that led to the execution of the

School Agreement attached as Exhibit 1 to this affidavit.

The F. W. Buchholz High School faculty and SAC (School

Advisory Council) supported the execution of the School

Agreement with Whittle. Affiant in addition considered

the positive recommendation of media specialists.

5. Prior to Affiant executing the School Agreement

attached as Exhibit 1 to this affidavit, Affiant conciuded

that Whittle’s Educational Network as described in the

School Agreement would educationally benefit the stu-

dents at F. W. Buchholz High School.

App. 17

6. After execution of the School Agreement, affiant

monitored use of the Whittle Educational Network at F.

W. Buchholz High School and continued to believe that

the School Agreement served the educational needs of the

students after personally monitoring how it was used as

well as considering all comments from faculty, students,

and parents.

7. Asa result of the use of the Whittle Educational

Network at F. W. Buchholz High School, many students

were better informed as to current events on an interna-

tional and national level and thereby better able to partic-

ipate as informed adult citizens and better able to

perform in related classes like social studies, history, and

life management skills.

8. During the period when I was principal of F. W.

Buchholz High School no parent, student, or faculty

member asked to be excused from any TV programming

under the School Agreement.

9. The limited commercial content contained in pro-

gramming under the School Agreement (specifically as a

part of Channel One) was not significantly different than

other commercial materials which students are exposed

to everyday in schools. Such exposure comes from school

newspapers, school yearbooks, the internet, classroom

use of newspapers and normal commercial TV program-

ming, advertisements by restaurants and vending

machine companies, magazines used in the classroom,

advertisements in athletic facilities like scoreboards, and

other sources. In all of these instances, including the

App. 18

commercial segments of Channel One, exposure of stu-

dents to commercial content is incidental to a program

that serves the overall educational program of the school.

10. In summary, affiant believes that the Whittle

Educational Network including Channel One was educa-

tionally beneficial to students at F. W. Buchholz High

School.

Further affiant sayeth not.

/s/ Mae V. Islar

Mae V. Islar

Sworn to and subscribed before me this 16 day of

August, 1996

App. 19

AFFIDAVIT OF TERRY E. STECHMILLER

State of GEORGIA

County of COBB

Terry E. Stechmiller (“Affiant”), being duly sworn,

deposes and says:

1. Affiant has been employed by the School Board

of Alachua County as principal of F. W. Buchholz High

School since 1992 when affiant succeeded Mae V. Islar as

principal.

2. Prior to 1992, affiant was trained as a professional

teacher and administrator and had experience as a

teacher and administrator in excess of 20 years.

3. As principal of F. W. Buchholz High School, affi-

ant monitored implementation of the Whittle Communi-

cations’ School Agreement.

4. Affiant is aware of and participated in the deci-

sionmaking process that led to the continuation of the

School Agreement at F. W. Buchholz High School until

1996. The F. W. Buchholz High School faculty, including

media specialist, and SAC (School Advisory Council)

supported continuation of the School Agreement with

Whittle.

5. Through 1996, Affiant believed, and continues to

believe, that Whittle’s Educational Network as described

in the School Agreement educationally benefitted the stu-

dents at F. W. Buchholz High School. As a result of the

use of the Whittle Educational Network at F. W. Buchholz

High School, many students were better informed as to

current events on an international and national level and

App. 20

thereby better able to participate as informed adult citi-

zens and beiter able to perform in related classes like

social studies, history, and life management skills.

6. During the period when | was principal of F. W.

Buchholz High School no parent, student, or faculty

member asked to be excused from any TV programming

under the School Agreement.

~~

7. The limited commercial content contained in pro-

gramming under the Schocl Agreement (specifically as a

part of Channel One) was not significantly different than

other commercial materials which students are exposed

to everyday in schools. Such exposure comes from school

newspapers, school yearbooks, the internet, classroom

use of newspapers and normal commercial TV program-

ming, advertisements by restaurants and vending

machine companies, magazines used in the classroom,

advertisements in athletic facilities like scoreboards, and

other sources. In all of these instances, including the

commercial segments of Channel One, exposure of stu-

dents to commercial content is incidental to a program

that serves the overall educational program of the school.

8. The School Agreement ended at F. W. Buchholz

High School as of May 1996 with the removal of equip-

ment consistent with the Board decision to not renew the

District Agreement. Affiant knows of no present plan to

attempt to consider use of the Whittle Educational Net-

work or Channel One at any time in the future.

9. In summary, affiant believes that the Whittle

Educational Network including Channel One was educa-

tionally beneficial to students at F. W. Buchholz High

School.

App. 21

Further affiant sayeth not.

/s/ Terry E. Stechmiller

Affiant

Sworn to and subscribed before me this 15 day of

August, 1996,

App. 22

AFFIDAVIT OF WILLIAM D. (“DAN”) BOYD, JR.

State of Florida

County of Alachua

William D. (“Dan”) Boyd, Jr. (“Affiant”), being duly

sworn, deposes and says:

1. Affiant is employed by the School Board of Ala-

chua County as Assistant Superintendent for Instruction

and in the past was principal of Gainesville High School.

2. Affiant is trained as a professional teacher and

administrator and has had experience as a teacher and

administrator in excess of 20 years.

3. As principal of Gainesville High School, affiant

monitored implementation of the Whittle Communica-

tions’ School Agreement including Channel One pro-

grams.

4. Aftfiant is aware of and participated in the deci-

sionmaking process that led to the continuation of the

School Agreement at Gainesville High School until 199[5

/s/ WDB}.

5. As reflected in the Board minutes for the April 3,

1990, Board meeting, affiant appeared before the Board in

support of the District Agreement with Whittle as princi-

pal of Gainesville High School. As I stated at that time,

the Channel One programming was not replacing instruc-

tional time but instead was shown in noninstructional

time that was and is built into the school schedule.

6. Between 1990 and 1996, Gainesville High School

implemented the Whittle Educational Network via a stan-

dard School Agreement as authorized by the District

App. 23

Agreement approved by the Board in 1990 and approved

again in 1993.

7. As reflected in the Board minutes for the March

16, 1993, meeting, Gainesville High School conducted a

survey with their School Advisory Council and student

body - the results were unanimous to keep the Whittle

program as described in the School Agreement with

Whittle. On March 16, 1993, affiant appeared before the

Board to report these survey results and to request the

Board to allow Gainesville High School, and other

schools, to choose to use, or not use, the Whittle Educa-

tional Network, including Channel One.

4. Through 1996, Affiant believed, and continues to

believe, that Whittle’s Educational Network as described

in the School Agreement educationally benefitted the stu-

dents at Gainesville High School and other schools. As a

result of the use of the Whittle Educational Network

including Channel One, many students were better

informed as to current events on an international and

national level and thereby better able to participate as

informed adult citizens and better able to perform in

related classes like social studies, history, and life man-

agement skills.

9. During the period when I was principal of Gain-

esville High School and Assistant Superintendent for

Instruction, no parent, student, or faculty member asked

affiant that they be excused from any TV programming

under the School Agreement.

10. The limited commercial content contained in

programming under the School Agreement (specifically

as a part of Channel One) was not significantly different

App. 24

than other commercial materials which students are

exposed to everyday in schools. Such exposure comes

from school newspapers, school yearbooks, the internet,

classroom use of newspapers and normal commercial TV

programming, advertisements by restaurants and vend-

ing machine companies, magazines used in the class-

room, advertisements in athletic facilities like

scoreboards, and other sources. In all of these instances,

including the commercial segments of Channel One,

exposure of students to commercial content is incidental

to a program that serves the overall educational program

of the school.

ll. Affiant personally investigated the Whittle Edu-

cational Network including Channel One. Affiant con-

tinues to believe that the Whittle Educational Network

including Channel One is an educational resource that

will provide educational benefits in those schools that

decide through their faculty, administration, and school

advisory councils to use the program. Many students, if

not most students, will gain valuable background for

their social science, health, and other classes and will

gain a better understanding of the world in which they

will live if they are exposed to current events via the

Whittle Educational Network including Channel One.

12. The District and School Agreement with Whittle

ended as of May 1996 with the removal of equipment

consistent with the Board decision to not renew the Dis-

trict Agreement. Affiant knows of no present plan to

attempt to consider use of the Whittle Educational Net-

work or Channel One at any time in the future.

App. 25

Further affiant sayeth not.

/s/ William D. Boyd, Ir.

Sworn to and subscribed before me this 13 day

August, 1996,

ot

App. 26

AFFIDAVIT OF RONALD D. NELSON

State of Florida

County of Alachua

Dr. Ronald D. Nelson (“Affiant”), being duly sworn,

deposes and says:

1. Affiant is employed by the School Board of Ala-

chua County as principal of Santa Fe High School. He has

been employed in that capacity since 1992.

2. Affiant is trained as a professional teacher and

administrator and has had experience as a teacher and

administrator in excess of 20 years.

3. As principal of Santa Fe High School, affiant

monitored implementation of the Whittle Communica-

tions’ School Agreement including Channel One pro-

grams.

4. Affiant is aware of and participated in the deci-

sionmaking process that led to the continuation of the

School Agreement at Santa Fe High School until 1996. In

summary, the Whittle Schoo! Agreement was imple-

mented and continued at Santa Fe High School until 1996

with the concurrence of the administration, faculty, SAC

(School Advisory Council), and good student and parent

support.

5. In 1996, affiant in conjunction with the faculty,

SAC, students and parents, decided to terminate use of

the Whittle Educational Network including Channel One.

That decision was made separate and apart from, and

before, the decision of the Board to terminate the District

Agreement that allowed schools like Santa Fe to choose to

enter or continue a School Agreement for the Whittle

App. 27

network. All Whittle equipment has now been removed

from Santa Fe High School and there is no reasonable

prospect that the Whittle Educational Network would be

used at Santa Fe High School in the 1996-97 school year in

view of the decision at Santa Fe to terminate its School

Agreement.

6. Through 1996, Affiant believed, and continues to

believe, that Whittle’s Educational Network as described

in the School Agreement educationally benefitted the stu-

dents at Santa Fe High School and other schools. As a

result of the use of the Whittle Educational Network,

many students were better informed as to current events

on an international and national level and thereby better

able to participate as informed adult citizens and better

able to perform in and benefit from related classes like

social studies, history, and life management skills. As of

1996, however, the judgment at Santa Fe High School was

to try alternative educational tools in an effort to achieve

the same objectives.

7. During the period when I was principal of Santa

Fe High School, no parent, student, or faculty member

asked affiant that they be excused from any TV program-

ming under the School Agreement except Mr. Robert

Long. Mr. Long asked that his son, Daniel, be excused

and the teacher arranged to have Daniel Long excused

from the classroom when Channel One was shown as

requested by Mr. Long.

8. The limited commercial content contained in pro-

gramming under the School Agreement (specifically as a

part of Channel One) was not significantly different than

other commercial materials which students are exposed

App. 28

to everyday in schools. Such exposure comes from school

newspapers, school yearbooks, the internet, classroom

use of newspapers and normal commercial TV program-

ming, advertisements by restaurants and vending

machine companies, magazines used in the classroom,

advertisements in athletic facilities like scoreboards, and

other sources. In all of these instances, including the

commercial segments of Channel One, exposure of stu-

dents to commercial content is incidental to a program

that serves the overall educational program of the school.

9. Affiant personally investigated the Whittle Edu-

cational Network including Channel One. Affiant con-

tinues to believe that the Whittle Educational Network

including Channel One is an educational resource that

will provide educational benefits in those schools that

decide through their faculty, administration, and school

advisory councils to use the program. Many students, if

not most students, will gain valuable background for

their social science, health, and other classes and will

gain a better understanding of the world in which they

will live if they are exposed to current events via the

Whittle Educational Network including Channel One.

Further affiant sayeth not.

/s/ Ron Nelson

Dr. Ronald D. Nelson

Sworn to and subscribed before me this 15 day of

August, 1996,

App. 29

AFFIDAVIT OF THOMAS J. MOFFETT, JR.

State of Florida

County of Alachua

Thomas J. Moffett, Jr. (“Affiant”), being duly sworn,

deposes and says:

1. Affiant is employed by the School Board of Ala-

chua County (“Board”) as the Board’s Director of Instruc-

tional Technology. An accurate and brief job description

for affiant’s current responsibilities is Exhibit 1 to this

affidavit.

2. Affiant is trained and experienced as an educator

with special knowledge of educational resources like use

of TVs in classrooms.

3. Affiant as a part of his general responsibilities for

the Board became familiar with Whittle’s Educational

Network and in particular Channel One programming as

a part of that network. For example, in preparation for

the Board presentation made during the Board meeting of

March 16, 1993, as reflected in the minutes of that Board

meeting, affiant conducted an investigation of educa-

tional value of the Whittle Educational Network as imple-

mented in Gainesville and elsewhere.

4. At the March 16, 1993, meeting of the Board,

affiant made an accurate presentation to the Board that

included survey data that showed support for the Whittle

Educational Network in the nine schools where that pro-

gram had been implemented. In addition, affiant accu-

rately reported to the Board on March 16, 1993, that the

estimated cost to replace all the Whittle equipment

App. 30

including satellite reception and TV equipment would be

approximately $196,000.

5. At the March 5, 1996, meeting of the Board, affi-

ant made an accurate presentation to the Board in sup-

port of the school administration’s recommendation to

renew the Whittle District Agreement for an additional

three-year term. The Board, however, did not accept that

recommendation and the Whittle District Agreement has

now been terminated.

6. Affiant has personally observed students benefit

from Channel One programs in the Board’s schools. Affi-

ant’s observations are that many students gave attention

to the Channel One programming and better understood

current events ranging from international affairs to health

issues. Such exposure undoubtedly provided many stu-

dents preparation for classes such as history, life manage-

ment skills, and social science and better prepared

students to live their lives on an informed basis.

7. Affiant’s observation of the Whittle Educational

Network shows that no part of that network causes stu-

dents to be coerced to do anything. First, students may

choose not to watch the programming and simply refuse

to benefit educationally from the Whittle Network; it was

certainly possible for students to be inattentive during

the Whittle programming and still graduate from Board

high schools. Second, if the student watches the program-

ming, then the student is not compelled to do anything as

a result of watching the programming.

8. Affiant informed himself as to how various

school representatives perceived the Whittle Educational

Network including Channel One and a huge majority of

App. 31

involved Board personnel, parents, and students

believed, as does affiant, that the Network was educa-

tionally valuable.

9. Affiant watched many tapes of Whittle Educa-

tional Network programming including Channel One.

Affiant made the judgment that it was unnecessary to

review that programming every day prior to it being

shown in the classroom because that programming was

consistently of high quality and educationally beneficial.

10. The closed circuit TV systems in the Board

schools sometimes are used to show regular commercial

TV programming when teachers decide that that would

be educationally beneficial. Commercial content in the

Channel One programming was limited and not different

from commercials on regular TV programming or in

newspapers and magazines that are used as instructional

resources in the Board’s schools at the present time.

11. Affiant believes that it would not be practicable

for the Board to do daily current events programming

similar to the programming found in Channel One. Such

current events programming requires international

reporting and other resources that the Board simply does

not have.

12. No administrators, teachers or students ever

contacted me to complain about the content of the Whit-

tle Educational Network including Channel One. To the

extent that opposition exists to the Whittle Educational

Network, as reflected in this lawsuit for example, that

Opposition is clearly a minority position and the great

majority of concerned persons were enthusiastic at the

App. 32

prospect of educational benefits achieved by reason of the

Whittle Educational Network including Channel One.

13. In summary, Affiant believes that the Whittle

Educational Network including Channel One program-

ming was educationally beneficial to students in Board

schools. The commercial content in that programming

was not different than ordinarily experienced by students

elsewhere and was incidental to the educational benefit

of the programming like other commercialism that is

commonly found in schools (like yearbook and school

newspaper advertisements, advertisements in commercial

eating facilities allowed in the schools, advertising from

magazines, newspapers, and commercial TV program-

ming used in the classrooms, advertising on the Internet,

advertisements at athletic events, and so on).

Further affiant sayeth not.

/s/ Thomas J. Moffett, Jr.

Thomas J. Moffett, Jr.

Sworn to and subscribed before me this 15 day of

August, 1996,

App. 33

AFFIDAVIT OF DAVID C. LOCKE

State of Florida

County of Alachua

David C. Locke (“Affiant”), being duly sworn,

deposes and says:

1. Affiant is employed by the School Board of Ala-

chua County (“Board”) as the Media Specialist at Spring-

hill Middle Schooi.

2. Affiant is trained and experienced as an educator

with special knowledge of educational resources like use

of TVs in classrooms.

3. Springhill Middle School elected to enter a School

Agreement with Whittle and used the Whittle Educa-

tional Network including Channel One until May 1996

when that program was terminated.

4. Affiant as a part of his general responsibilities for

the Board became familiar with Whittle’s Educational

Network and in particular Channel One programming as

a part of that network. Affiant viewed many Channel One

programs, discussed the programming with administra-

tors, teachers, parents, and students, and assessed the

educational value of the Whittle Educational Network

including Channel One.

5. Affiant has personaliy observed students benefit

from Channel One programs in the Board’s schools. Affi-

ant’s observations are that many students gave attention

to the Channel One programming and better understood

current events ranging from international affairs to health

App. 34

issues. Such exposure undoubtedly provided many stu-

dents preparation for classes such as history, life manage-

ment skills, and social science and better prepared

students to live their lives on an informed basis.

6. Affiant’s observation of the Whittle Educational

Network shows that no part of that network causes stu-

dents to be coerced to do anything. First, students may

choose not to watch the programming and simply refuse

to benefit educationally from the Whittle Network; it was

certainly possible for students to be inattentive during

the Whittle programming and still graduate from Board

high schools. Second, if the student watches the program-

ming, then the student is not compelled to do anything as

a result of watching the programming.

7. Affiant informed himself as to how various

school representatives perceived the Whittle Educational

Network including Channel One and a huge majority of

involved Board personnel, parents, and students

believed, as does affiant, that the Network was educa-

tionally valuable.

8. Affiant watched many tapes of Whittle Educa-

tional Network programming including Channel One.

Affiant made the judgment that it was unnecessary to

review that programming every day prior to it being

shown in the classroom because that programming was

consistently of high quality and educationally beneficial.

9. Affiant knows that the closed circuit TV systems

in the Board schools sometimes are used to show regular

commercial TV programming when teachers decide that

that would be educationally beneficial. Commercial con-

tent in the Channel One programming was limited and not

App. 35

different from commercials on regular TV programming or

in newspapers and magazines that are used as instruc-

tional resources in the Board’s schools at the present time.

10. Affiant believes that it would not be practicable

for the Board to do daily current events programming

similar to the programming found in Channel One. Such

current events programming requires international

reporting and other resources that the Board simply does

not have.

11. No administrators, teachers or students ever

contacted me to complain about the content of the Whit-

tle Educational Network including Channel One. To the

extent that opposition exists to the Whittle Educational

Network, as reflected in this lawsuit for example, that

opposition is clearly a minority position and the great

majority of concerned persons were enthusiastic at the

prospect of educational benefits achieved by reason of the

Whittle Educational Network including Channe! One.

12. In summary, Affiant believes that the Whittle

Educational Network including Channel One program-

ming was educationally beneficial to students in Board

schools. The commercial content in that programming

was not different than ordinarily experienced by students

elsewhere and was incidental to the educational benefit

of the programming like other commercialism that is

commonly found in schools (like yearbook and school

newspaper advertisements, advertisements in commercial

eating facilities allowed in the schools, advertising from

magazines, newspapers, and commercial TV program-

ming used in the classrooms, advertising on the Internet,

advertisements at athletic events, and so on).

App. 36

Further affiant sayeth not

/s/ David C. Locke

David C. Locke

Sworn to and subscribed before me this 15th day of

August, 1996,

App. 37

AFFIDAVIT OF MARY W. OWENS

State of Florida

County of Alachua

Mary W. Owens (“Affiant”), being duly sworn,

deposes and says:

1. Affiant is employed by the School Board of Ala-

chua County (“Board”) as the Media Specialist at Santa Fe

High School.

2. Affiant is trained and experienced as an educator

with special knowledge of educational resources like use

of TVs in classrooms.

3. Santa Fe High School elected to enter a School

Agreement with Whittle and used the Whittle Educa-

tional Network including Channel One until May 1996

when that program was terminated at Santa Fe and then

by the Board.

4. Affiant as a part of her general responsibilities

for the Board became familiar with Whittle’s Educational

Network and in particular Channel One programming as

a part of that network. Affiant viewed many Channel One

programs, discussed the programming with administra-

tors, teachers, parents, and students, and assessed the

educational value of the Whittle Educational Network

including Channel One.

5. Affiant has personally observed students benefit

from Channel One programs in the Board’s schools. Affi-

ant’s observations are that many students gave attention

to the Channel One programming and better understood

current events ranging from international affairs to health

App. 38

issues. Such exposure undoubtedly provided many stu-

dents preparation for classes such as history, life manage-

ment skills, and social science and better prepared

students to live their lives on an informed basis.

6. Affiant’s observation of the Whittle Educational

Network shows that no part of that network causes stu-

dents to be coerced to do anything. First, students may

choose not to watch the programming and simply refuse

to benefit educationally from the Whittle Network; it was

certainly possible for students to be inattentive during

the Whittle programming and still graduate from Board

high schools. Second, if the student watches the program-

ming, then the student is not compelled to do anything as

a result of watching the programming.

7. Affiant informed herself as to how various school

representatives perceived the Whittle Educational Net-

work including Channel One and a majority of involved

Board personnel, parents, and students believed, as does

affiant, that the Network was educationally valuable.

8. Affiant watched many tapes of Whittle Educa-

tional Network programming including Channel One.

Affiant made the judgment that it was unnecessary to

review that programming every day prior to it being

shown in the classroom because that programming was

consistently of high quality and educationally beneficial.

9. Affiant knows that the closed circuit TV systems

in the Board schools sometimes are used to show regular

commercial TV programming when teachers decide that

that would be educationally beneficial. Commercial con-

tent in the Channel One programming was limited and not

different from commercials on regular TV programming or

App. 39 7

in newspapers and magazines that are used as instruc-

tional resources in the Board’s schools at the present time.

10. Affiant believes that it would not be practicable

for the Board to do daily current events programming

similar to the programming found in Channel One. Such

current events programming requires international

reporting and other resources that the Board simply does

not have.

11. No administrators, teachers or students ever

contacted me to complain about the content of the Whit-

tle Educational Network including Channel One. How-

ever, affiant is informed that Mr. Robert Long asked the

principal at Santa Fe to excuse his son, Daniel, from the

classroom when Channel One was shown and Daniel

Long was excused. Aside from the Long request, no other

such request is known to affiant.

12. To the extent that opposition exists to the Whit-

tle Educational Network, as reflected in this lawsuit for

example, that opposition is clearly a minority position

and the great majority of concerned persons were enthu-

siastic at the prospect of educational benefits achieved by

reason of the Whittle Educational Network including

Channel One.

13. In summary, Affiant believes that the Whittle

Educational Network including Channel One program-

ming was educationally beneficial to students in Board

schools. The commercial content in that programming

was not different than ordinarily experienced by students

elsewhere and was incidental to the educational benefit

of the programming like other commercialism that is

commonly found in schools (like yearbook and school

App. 40

newspaper advertisements, advertisements in commercial

eating facilities allowed in the schools, advertising from

magazines, newspapers, and commercial TV program-

ming used in the classrooms, advertising on the Internet,

advertisements at athletic events, and so on).

14. At the same time, affiant fully accepts the Santa

Fe High School decision to end the Whittle Educational

Network School Agreement. Affiant is presently working

to attempt to achieve the same educational benefits, as

achieved by the Whittle Educational Network including

Channel One, by other means and methods.

Further affiant sayeth not.

/s/ Mary W. Owens

Mary W. Owens

Sworn to and subscribed before me this 15th day of

August, 1996,

App. 41

IN THE CIRCUIT COURT OF THE

EIGHTH JUDICIAL CIRCUIT, IN AND

FOR ALACHUA COUNTY, FLORIDA

ROBERT LONG and SHARON LONG, )

individually and as parents and next )

friends of minor Daniel Long, et al., _ )

Plaintiffs,

vs. )

SCHOOL BOARD OF ALACHUA _ ) CASE NO.

COUNTY, ) 92-3214-CA

) DIVISION K

Defendant, )

and )

K-IIT COMMUNICATIONS

CORPORATION, )

Intervenor. )

)

AFFIDAVIT OF CLAUDIA PETERS

State of New York

County of New York

Claudia Peters (“Affiant”), being duly sworn,

deposes and says:

1. Affiant is the Executive Vice President for Net-

work Affairs of the Channel One Network, owned and

operated by K-III Communications Corporation (“K-III”).

2. This affidavit sets forth information about the

Channel One Network that is within my personal knowl-

edge.

App. 42

3. The Channel One Network is the leading pro-

vider of satellite-delivered, educational programming to

America’s secondary schools. The Channel One Network

develops, produces and distributes educational program-

ming including world news, current events, and feature

programs.

4. Approximately 40% of students attending public,

private and parochial secondary schools (grades 6

through 12) in the United States view the Channel One

Network programming. Schools participating in the

Channel One Network have entered into three-year con-

tracts and have renewed contracts at a rate of 99% every

year since 1993 (when the first contracts entered into in

1990 expired). The majority of non-renewals (only 1% of

all participating schools) have been due to school consol-

idations or closings.

5. So that participating schools may receive the net-

work programming and other programming of their

choice, the Channel One Network normally provides par-

ticipating schools the following equipment: a fixed KU-

band satellite dish, headend and receiving equipment,

two video cassette recorders, 19” color television sets

mounted in classrooms throughout the school for grades

6-12 and internal wiring. The approximate value of this

equipment package is $25,000 for each school using the

Channel One Network. In its first six years, Channel One

Network has installed more than $220,000,000 worth of

equipment in schools in the United States. K-III not only

installs this equipment, but also regularly maintains and

services that equipment without cost to the sch. ols.

App. 43

6. The equipment provided to Channel One Net-

work member schools is available for use by the schools

for other purposes in addition to viewing the Channel

One Network programming. Participating schools use the

equipment for showing other educational videos, stu-

dent-produced news shows and daily or weekly

announcements, teacher in-service training programs,

distant learning courses, daily and emergency announce-

ments, video yearbooks, standardized tests or test

instructions, programming for parent-teacher confer-

ences, student elections, campaign speeches, and other

purposes. The internal wiring provided by the network

allows schools to view cable programming which cable

companies normally provide without charge to the

schools; the network allows distribution of the cable sig-

nals to each classroom via the network-provided cabling

which the cable companies typically do not provide. As a

result, use of commercial-free and commercial cable TV

programming in the classrooms and use of videotapes is

facilitated by the Channel One Network equipment pack-

age.

* * ~

9. Channel One News anchor-reporters present

news in a format and context relevant to teenagers in a

timeframe that is nearly immediate so that students bene-

fit from immediate news from around the world. Channel

One has sent its correspondents, who range in age from

18 to 28, to gather news from locations across the United

States and around the world, including: Afghanistan,

Antarctica, Australia, Bolivia, Bosnia, Cambodia, Canada,

China, Cuba, Egypt, England, France, Germany, Haiti,

Iran, Iraq, Ireland, Israel, Japan, Korea, Mexico, Pakistan,

App. 44

Russia, Rwanda, Serbia, Singapore, Somalia, South

Africa, Vietnam, Yugoslavia and Zaire.

+ * *

13. A three-year study (1992-94) was conducted by

Dr. Jerome Johnston of the University of Michigan. An

accurate copy of the entire study, dated January 1994, is

attached hereto as Exhibit 4. As shown in Exhibit 4, the

study found that students who regularly watch Channel

One News regularly had a five to eight percent increase

in awareness of current events. As with any educational

resource, the impact upon students was not always the

same and the benefit was no doubt a function of teacher

and student effort to pay attention and make use of the

Channel One News programming. The study also showed

that 93% of teachers would recommend the programming

to other schools and teachers, and that 86% of teachers

agreed that Channel One News is a worthwhile educa-

tional tool for use of school time.

* * *

20. Channel One’s contracts with the 12,000 schools

who have elected to participate in the Channel One Net-

work limits advertising to not more than two minutes of

the 12-minute daily news program. A significant portion

of this advertising time is used to broadcast public ser-

vice announcements with educational messages for

young people. Over $70,000,000 worth of free advertising

has been provided to non-profit organizations promoting

educational messages about drug abuse, alcohol abuse,

drinking and driving, tobacco use, community service,

and other important social issues. Advertising is accepted

subject to standards considerably stricter than those used

Lceeiaaieiilsideceeieeeieasiieiaaasl

App. 45

by commercial TV broadcasters for time periods with

high viewing by young people. For example, advertising

for “R” rated movies, beer, feminine hygiene products,

and political candidates is prohibited. Specific standards

are typically set forth in district and school form agree-

ments as was the case for the School Board of Alachua

County (Florida).

21. Channel One Network has used a standard form

contract, called a “District Agreement,” with a school

board or district, and a standard form contract for use

with individual schools, a “School Agreement.” The Dis-

trict Agreement is a board or district’s authorization for

individual schools to contract using the School Agree-

ment. The forms currently being used when a District or

School Agreement is executed include the following lan-

guage:

This Agreement does not require that all

teachers use Channel One News or that all stu-

dents or any particular student view Channel

One News. The School may at its discretion

develop appropriate procedures to accommo-

date students who do not wish to view Channel

One News or whose parents do not wish them

to view Channel One News.

K-III has not objected to any procedure adopted by any

Channel One News participating school to accommodate

students or parents who do not wish students to view

Channel One News.

22. Channel One Network is intended to serve edu-

cational goals of the administrators, teachers and stu-

dents and Channel One continues to make the program

more useful to educators who are working everyday with

App. 46

students across the United States and who have indi-

cated, with a consistent 99% renewal rate, their belief that

the Channel One Network is satisfying critical needs of

their students.

Further affiant sayeth not.

/s/ Claudia Peters

Claudia Peters,

Affiant

Sworn to and subscribed before me this 3 day of

é

October, 1996,