A.M. v. Taconic Hills Central School District et al

Filing 44

MEMORANDUM-DECISION and ORDER - That Taconic's 37 Motion for Summary is GRANTED. That A.M.'s Judgment 36 Motion for Summary Judgment is DENIED. That all claims against Taconic are DISMISSED. Signed by Chief Judge Gary L. Sharpe on 1/23/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________
A.M., a Minor, by her Parent and Next
Friend, JOANNE McKAY,
Plaintiff,

1:10-cv-20
(GLS/RFT)

v.
TACONIC HILLS CENTRAL SCHOOL
DISTRICT,
Defendant.
___________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Kriss, Kriss Law Firm
350 Northern Boulevard, Suite 306
Albany, NY 12204
Gibbs Law Firm, P.A.
5666 Seminole Boulevard
Suite 2
Seminole, FL 33772
FOR THE DEFENDANT:
Girvin, Ferlazzo Law Firm
20 Corporate Woods Boulevard
2nd Floor
Albany, NY 12211-2350

DOMINICK J. BRIGNOLA, ESQ.

DAVID C. GIBBS, ESQ.

SCOTT P. QUESNEL, ESQ.
PATRICK J. FITZGERALD, III,
ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff A.M., a minor, by her parent and next friend, Joanne McKay,
commenced this action under 42 U.S.C. § 1983 against defendant Taconic
Hills Central School District (“Taconic”), alleging violations of her free
speech rights under the First Amendment to the United States Constitution
and Article I, Section 8 of the New York State Constitution. (See Compl.,
Dkt. No. 1.) Pending are the parties’ cross-motions for summary judgment.
(Dkt. Nos. 36, 37.) For the reasons that follow, Taconic’s motion is granted
and A.M.’s motion is denied.
II. Background1
During the 2008-2009 academic year, the student council elected
A.M., an eighth grader in Taconic’s middle school, to be a co-class
president.2 (Pl.’s Statement of Material Facts (“SMF”) ¶¶ 1-2, Dkt. No. 36,
Attach. 3.) By virtue of her position, A.M. was permitted to deliver a “brief
message” at the annual Moving Up Ceremony (“Ceremony”) scheduled for
June 25, 2009 in the school auditorium. (Def.’s SMF ¶ 7; Pl.’s SMF ¶ 7.)

1

The facts are undisputed unless otherwise noted.

2

Taconic is a K-12 public school system organized under the laws of the State of New
York. (Def.’s Statement of Material Facts (“SMF”) ¶ 1, Dkt. No. 37, Attach. 1.) “All grade levels
of the Taconic Hills School District are housed within a single building in Craryville, New York,
and share one main auditorium.” (Id. ¶ 34.)

2

A few days before the Ceremony, A.M. asked her English teacher,
Jamie Keenan, to look over her speech. (Def.’s SMF ¶ 8.) As Keenan
read the speech, she came to the last sentence, which stated: “As we say
our goodbyes and leave middle school behind, I say to you, may the LORD
bless you and keep you; make His face shine upon you and be gracious to
you; lift up His countenance upon you, and give you peace.” (Id. ¶ 9.)
Unsure if this sentence was appropriate for the Ceremony, Keenan advised
A.M. to have Principal Neil Howard review the speech. (Id. ¶ 12.)
Keenan’s concern was shared by Leanne Thorton, the faculty advisor for
the student council, after she read A.M. and her co-class president’s
speeches on June 24, 2009. (Id. ¶¶ 13-15.)
Though previous principals heard the speeches for the first time
during the rehearsal on the morning of the Ceremony, Principal Howard,
who was in his first year at Taconic’s middle school, opted to go over them
in his office. (Pl.’s SMF ¶¶ 20, 22, 28.) After reviewing A.M.’s speech,
Principal Howard concurred with Keenan and Thorton’s assessment,
stating the closing line “sounded too religious.” (Pl.’s SMF ¶ 30; Dkt. No.
43 ¶ 11.) A.M. disagreed and presented Principal Howard with literature on
student free speech rights from the “Christian Law Association’s web site.”
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(Pl.’s SMF ¶ 29; Def.’s SMF ¶¶ 22-23.) However, this literature did not
change his perspective, and Principal Howard advised A.M. that if she
wished to deliver the speech, she would have to remove the last sentence.
(Def.’s SMF ¶¶ 23-24.) In response, A.M. asked Principal Howard to
contact her mother, which he did shortly thereafter. (Id. ¶ 25.) During his
conversation with A.M.’s mother, Principal Howard reiterated his
assessment and proposed solution. (Id. ¶ 26.) However, A.M.’s mother
was unsatisfied and requested that he contact Superintendent Mark
Sposato about the speech. (Id. ¶¶ 27-28.) Principal Howard obliged and
later that day met with Superintendent Sposato to discuss the matter. (Id.
¶ 29.)
Following his review of the speech, Superintendent Sposato sought
advice from Taconic’s legal counsel. (Id. ¶ 30.) According to Taconic, its
legal counsel agreed that the message sounded religious and moreover,
that “delivering the religious message at a school sponsored event could
violate the Establishment Clause.”3 (Id. ¶ 31.) Based on this advice,
Superintendent Sposato contacted A.M.’s mother and informed her that
3

Prior to the June 2009 Moving Up Ceremony, Taconic received complaints from the
parents of a Jewish student, objecting to the display of a Christmas tree with ornaments on
school property, and from the parents of a student who was a Jehovah’s Witness, in response
to the school’s Halloween activities. (Def.’s SMF ¶¶ 58-59.)

4

A.M. would not be permitted to give the speech unless the last sentence
was removed. (Id.) Although she protested what she believed was “a
violation of A.M.’s constitutional free speech rights,” A.M.’s mother agreed
to allow A.M. to deliver the speech without the last sentence. (Id. ¶ 32.)
The Ceremony began at approximately 6 p.m. in the school’s
auditorium. (Pl.’s SMF ¶ 7.) While A.M. avers the Ceremony was run by
the student council, she concedes that it was “generally organized and
overseen” by Taconic’s administrators. (See Dkt. No. 43 ¶ 39.)
Nevertheless, it is undisputed that Taconic provided all of the following for
the Ceremony: the requisite funds and insurance; the official
announcements, which were sent on school letterhead; the event
programs; and the “diplomas.” (Pl.’s SMF ¶¶ 4, 10; Def.’s SMF ¶¶ 35, 38,
44.) In addition to music by the school band, the Ceremony was decorated
with school “banners and signs with [Taconic’s] name, logo and mascot,”
as well as orange and white balloons, Taconic’s colors. (Def.’s SMF ¶¶ 4142.) Finally, Taconic provided the podium and the microphone for the
speeches. (Id. ¶ 45.)
Although the Ceremony was neither mandatory nor graded, it was
attended by the students’ families, “Board of Education members, teachers,
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staff, administrators, students and community members.” (Pl.’s SMF ¶¶ 6,
8; Def.’s SMF ¶ 37.) The Ceremony’s speakers included Principal Howard,
Board of Education President Ronald Morales and Taconic’s high school
valedictorian. (Def.’s SMF ¶ 43.) After being introduced by Principal
Howard, A.M. began her speech with “‘I’d like to take this opportunity to
thank our families and friends for joining us tonight for our moving up
celebration.’” (Id. ¶ 50.) Despite disagreeing with Taconic’s perception of
the last sentence—which she described as a “blessing”—A.M. delivered
the speech in accordance with Principal Howard’s instructions. (Pl.’s SMF
¶ 35; Def.’s SMF ¶ 54.) Shortly thereafter, she commenced the instant suit.
In her Complaint, A.M. alleges that Taconic, Principal Howard and
Superintendent Sposato violated her right to free speech as protected by
the First Amendment of the United States Constitution, and Article I,
Section 8 of the New York Constitution. (See Compl. ¶¶ 23-33, Dkt. No. 1.)
In a January 25, 2011 Memorandum-Decision and Order, this court
dismissed A.M.’s claims against Principal Howard and Superintendent
Sposato in their official capacities as duplicative, but otherwise denied
Taconic’s motion to dismiss. (See Dkt. Nos. 12, 22.)
III. Standard of Review
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The standard of review under Fed. R. Civ. P. 56 is well established
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its decision in Wagner v. Swarts, No. 1:09-cv652, 2011 WL 5599571, at *4 (N.D.N.Y. Nov. 17, 2011).
IV. Discussion
Though a public school student’s right to free speech is not “shed . . .
at the schoolhouse gate,” Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503, 506 (1969), it is “not automatically coextensive with the
rights of adults in other settings,” Bethel Sch. Dist. No. 403 v. Fraser, 478
U.S. 675, 682 (1986). This is so because of the “special characteristics” of
the school environment and the need to ensure that student speech is
consistent with the school’s “basic educational mission.” Hazelwood Sch.
Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (internal citations omitted).
Ultimately, it is the province of the schools—and not the federal courts—to
determine “what manner of speech” is appropriate for “the classroom or in
school assembly.” Hazelwood, 484 U.S. at 267 (quoting Fraser, 478 U.S.
at 683).
Here, the success of either party rests in large part on the legal
standard that is applied to the underlying facts. A.M. argues that Tinker
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governs the instant case because she was expressing a religious
viewpoint. (See Dkt. No. 36, Attach. 1 at 10.) Taconic counters that A.M.’s
speech was attributable to the school, and thus Hazelwood provides the
appropriate framework. To this end, the court first discusses the
controlling legal standard, and then, its application to the undisputed facts
in this case.
A.

School Sponsored Free Speech
The essence of A.M.’s argument is that Hazelwood is inapplicable

because the Ceremony was neither part of Taconic’s curriculum nor a
pedagogical exercise. (See Dkt. No. 36, Attach. 1 at 9.) Conversely,
Taconic claims “this is not a case where A.M.’s speech happens to occur
on school grounds[;] . . . [r]ather, A.M.’s message was the School District’s
speech, or at least attributable to [it].” (See Dkt. No. 37, Attach. 2 at
16-17.) The court concurs with Taconic.4

4

Notably, the parties’ opted not to substantively address the type of forum at issue.
See, e.g., Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 142-43 (2d Cir. 2004)
(discussing the relationship between the level of scrutiny applied to a restriction on speech and
“the nature of the forum” in which the speech occurs.) In spite of this omission, the court, after
reviewing the uncontested facts, accepts Taconic’s conclusory assertion that the school
auditorium was a non-public forum. (See Dkt. No. 37, Attach. 2 at 12); see also Hazelwood,
484 U.S. at 267 (School facilities will only be deemed “public forums” when they have been
opened for “indiscriminate use by the general public, or by some segment of the public, such
as student organizations . . . . If the facilities have instead been reserved for other intended
purposes, communicative or otherwise, then no public forum has been created, and school
officials may impose reasonable restrictions on” student speech) (internal quotations and

8

In Hazelwood, the Supreme Court explained Tinker’s shortcomings in
addressing school-sponsored speech as follows:
The question whether the First Amendment requires a school to
tolerate particular student speech—the question that we
addressed in Tinker—is different from the question whether the
First Amendment requires a school affirmatively to promote
particular student speech. The former question addresses
educators’ ability to silence a student’s personal expression that
happens to occur on the school premises. The latter question
concerns educators’ authority over school-sponsored publications,
theatrical productions, and other expressive activities that
students, parents, and members of the public might reasonably
perceive to bear the imprimatur of the school. These activities
may fairly be characterized as part of the school curriculum,
whether or not they occur in a traditional classroom setting, so
long as they are supervised by faculty members and designed to
impart particular knowledge or skills to student participants and
audiences.
484 U.S. at 270-71 (emphasis added); see also Poling v. Murphy, 872 F.2d
757, 762 (6th Cir. 1989) (finding that a school election and election
assembly were undoubtedly “‘school sponsored’ activities within the
meaning of Hazelwood” because, inter alia, school officials “vetted the
speeches in advance, . . . attempting to weed out or temper inappropriate
content.”). Simply put, “[i]f the speech at issue bears the imprimatur of the
school and involves pedagogical interests, then it is school-sponsored
citations omitted)); Peck. v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 626 (2d Cir. 2005)
(stating that “[r]estrictions on speech in a nonpublic forum need only be reasonable and
viewpoint neutral” to survive constitutional scrutiny) (internal citations omitted)).

9

speech.” Fleming v. Jefferson Cnty. Sch. Dist. R-1, 298 F.3d 918, 924
(10th Cir. 2002).
Among other factors, “the level of involvement of school officials in
organizing and supervising an event” is relevant in determining whether an
activity bears the imprimatur of the school. Fleming, 298 F.3d at 925; see
also Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 307-08 (2000)
(finding that a school endorsed a religious message where, inter alia, the
school’s public address system was used to deliver the message, and
numerous indicia of the school, including banners and flags displaying the
school’s name, were present). Though the Court has yet to define
Hazelwood’s parameters, the Tenth Circuit concluded it contemplates any
“activities that affect learning, or in other words, affect pedagogical
concerns.” Fleming, 298 F.3d at 925; see also Poling, 872 F.2d at 762
(“The universe of legitimate pedagogical concerns is by no means confined
to the academic; . . . [it includes] discipline, courtesy, and respect for
authority.”). To this end, the Third, Ninth and Tenth Circuits each found
graduation ceremonies to be “expressive activities” under Hazelwood. See
Brody v. Spang, 957 F.2d 1108, 1122 (3d Cir. 1992); Nurre v. Whitehead,
580 F.3d 1087, 1095 (9th Cir. 2009), cert. denied, 130 S. Ct. 1937 (2010);
10

Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1229 (10th Cir.
2009), cert. denied, 130 S. Ct. 742 (2009).
Here, Taconic provided all of the following for the Ceremony: the
venue, i.e., the school auditorium; the funding and insurance; the official
announcements, which were printed on its letterhead; the event programs;
the diplomas the students received; and the microphone and podium for
the speeches. (Def.’s SMF ¶¶ 33, 35, 38, 44, 45; Pl.’s SMF ¶ 10.) In
addition, there was music by the school band; “banners and signs with
[Taconic’s] name, logo and mascot”; and orange and white
balloons—Taconic’s colors—flanking the stage. (Def.’s SMF ¶¶ 41-42.)
Finally, A.M. was not only introduced by Principal Howard, but she also
began her speech with “I’d like to take this opportunity to thank our families
and friends for joining us tonight for our moving up celebration.”5 (See id. ¶
50.)
Despite admitting these facts, (see Dkt. No. 43 ¶¶ 19-21, 33, 35, 38,
41-42, 44-45, 50), A.M. still avers the Ceremony was not a curricular event
because it was a non-graded, voluntary activity run by the student council
5

Notably, A.M.’s speech, like the election speeches in Poling, 872 F.2d at 762, was
reviewed and edited by Principal Howard. (Def.’s SMF ¶¶ 19-21.) Although this fact is not
dispositive, it demonstrates Taconic’s belief that it would be accountable for any controversy
resulting from A.M.’s speech.

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and not by Taconic. (See Dkt. No. 36, Attach. 1 at 9.) However, the
Hazelwood Court explicitly stated its holding was not limited to “expressive
activities [that] . . . occur in a traditional classroom setting.” See 484 U.S.
at 271. Furthermore, A.M. undermined her own argument. Not only did
she fail to articulate the student council’s role in planning and running the
Ceremony, but she also conceded the student council was subject to
faculty oversight, and “that the ceremony is run by” Taconic. (Def.’s SMF ¶
13; Dkt. No. 43 ¶¶ 3, 13.)
In sum, the Ceremony was a school-sponsored expressive activity,
which was supervised by Taconic’s faculty and “designed to impart
particular knowledge or skills to student participants and audiences.”
Hazelwood, 484 U.S. at 271. It follows that Hazelwood, and not Tinker, is
controlling. See id.
B.

The Reasonableness of Taconic’s Conduct
Though she failed to directly address the Hazelwood test, A.M.

claims that Taconic’s censorship of the last sentence of her speech
amounted to impermissible viewpoint discrimination. (See Dkt. No. 37,
Attach. 1 at 12-18.) Taconic counters its conduct was reasonable in light of

12

its desire to avoid violating the Establishment Clause.6 (See Dkt. No. 37,
Attach. 2 at 19-23.) Again, the court agrees with Taconic.
Under Hazelwood, “educators do not offend the First Amendment by
exercising editorial control over the . . . content of student speech in
school-sponsored expressive activities so long as their actions are
reasonably related to legitimate pedagogical concerns.” 484 U.S. at 273.
Where, as here, the imprimatur prong is fulfilled, “the pedagogical test is
satisfied simply by the school district’s desire to avoid controversy within a
school environment.” Fleming, 298 F.3d at 925-26 (collecting cases); see
also Peck, 426 F.3d at 633 (citing Widmar v. Vincent, 454 U.S. 263, 270-71
(“concluding that avoidance of a violation of the Establishment Clause
could constitute a compelling state interest to justify a content-based
restriction in a limited public forum.”)).
Here, Taconic sought to avoid controversy by removing the “blessing”
from A.M.’s speech. Indeed, Principal Howard believed the last sentence
“sounded too religious” and “might offend people.” (Pl.’s SMF ¶ 30.) Given

6

While A.M.’s sole claim is a violation of her “free speech” rights, (see Compl. ¶¶ 2333), her submissions contain multiple references to Establishment Clause cases. (See Dkt.
No. 36, Attach. 1 at 6-8.) With the exception of Taconic’s assertion that it sought to avoid
violating the Establishment Clause when it censored A.M.’s speech, (Def.’s SMF ¶ 31; Dkt. No.
37, Attach. 2 at 19), the court cannot discern the relevance of A.M.’s discussion of, and citation
to, Establishment Clause precedent.

13

the past complaints Taconic received from the parents of the Jewish and
Jehovah’s Witness students, and their desire to avoid violating the
Establishment Clause, (Def.’s SMF ¶¶ 31, 58-59), its decision to edit the
last sentence of A.M.’s speech was reasonable.
Rather than explaining why the restriction was not content-based,
A.M. asserts Taconic engaged in viewpoint discrimination, and that there
were alternative measures to avoid censoring the speech. (Dkt. No. 36,
Attach. 1 at 12-18.) Besides being unpersuasive, these arguments are
unsubstantiated.
A.M.’s viewpoint discrimination claim is meritless. Unlike a subjectmatter or content restriction, viewpoint discrimination involves the targeting
of “particular views taken by speakers on a subject.” Rosenberger v.
Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). While Taconic
must “abstain from regulating speech when the specific motivating ideology
. . . of the speaker is the rationale for the restriction,” Rosenberger, 515
U.S. at 829, it is entirely permissible to “refuse to sponsor student speech
that might reasonably be perceived . . . to associate the school with any
position other than neutrality on matters of political controversy,”
Hazelwood, 484 U.S. at 272. Irrespective of whether Taconic knew the
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origin of the last sentence, or believed that it was not proselytizing—two
points which A.M. belabors in her submissions—the restriction in question
was content-based. (See, e.g., Pl.’s SMF ¶ 31.)
Moreover, the availability of an oral or written disclaimer is irrelevant.
(See Pl.’s SMF ¶ 42; Dkt. No. 36, Attach. 1 at 16-18.) As the Second
Circuit stated in Peck, “[t]he Hazelwood standard does not require that the
guidelines be the most reasonable or the only reasonable limitations, only
that they be reasonable.”7 426 F.3d at 630 (internal citations omitted).
Notably, the Court in Hazelwood held that the principal’s decision to
remove two entire pages from the school newspaper, as opposed to just
the offensive articles, was reasonable under the circumstances. See 484
U.S. at 274. By comparison, Taconic’s restriction was de minimus given
that it removed only the religious language.
Although Taconic remains subject to judicial scrutiny “when [its]
decision to censor . . . student expression has no valid educational
purpose,” Hazelwood, 484 U.S. at 273, that is far from the case here. The

7

Throughout her submissions, A.M. insinuates that Taconic’s conduct was
impermissible because it did not have a formal policy for speech review. (See, e.g., Pl.’s SMF
¶ 21.) However, a nearly identical argument was rejected by the Court in Hazelwood, where it
stated “[t]o require such regulations in the context of a curricular activity could unduly constrain
the ability of educators to educate.” 484 U.S. at 273 n.6.

15

Ceremony was a pedagogical exercise designed to “impart lessons on
discipline, courtesy, and respect for authority,” Corder, 566 F.3d at 1229,
and Taconic’s content-based restriction was reasonably related to its goal
of maintaining neutrality. See Peck, 426 F.3d at 626. Because Taconic
was permitted to censor A.M.’s speech, her rights under the First
Amendment were not violated, and Taconic is entitled to judgment as a
matter of law. As such, Taconic’s cross-motion for summary judgment is
granted and A.M.’s motion is denied.
C.

A.M.’s State Law Claim
In light of the court’s decision with respect to A.M.’s federal cause of

action, her sole remaining claim, which is based on a violation of the New
York State Constitution, is dismissed as an exercise of supplemental
jurisdiction is inappropriate in this case. See 28 U.S.C. § 1367(c).
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Taconic’s motion for summary judgment (Dkt. No.
37) is GRANTED; and it is further
ORDERED that A.M.’s motion for summary judgment (Dkt. No. 36) is
DENIED; and it is further
16

ORDERED that all claims against Taconic are DISMISSED; and it is
further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
January 23, 2012
Albany, New York

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