Desilets v. Clearview Regional Board of Education

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Desilets v. Clearview Regional Board of Education  (1994) 
by the Supreme Court of New Jersey

Desilets v. Clearview Regional Board of Education, 137 N.J. 585 (1994) was a New Jersey Supreme Court decision that held that public school curricular student newspapers that have not been established as forums for student expression are subject to a lower level of First Amendment protection than independent student expression or newspapers established (by policy or practice) as forums for student expression. Excerpted from Desilets v. Clearview Regional Board of Education on Wikipedia, the free encyclopedia.

Court Documents
Per Curiam Decision
Wikipedia article


137 N.J. 585; 647 A.2d 150


On certification to the Superior Court, Appellate Division, whose opinion is reported at 266 N.J. Super. 531, 630 A.2d 333 (1993).

No. A-133 September Term 1993  Argued: May 3, 1994 --- Decided: September 22, 1994


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).


Brien Desilets began attending Clearview Junior High School in September 1987 as a seventh grader. In November of that year, he became involved in the school newspaper, known as the Pioneer Press. The newspaper was an extracurricular activity.

In January 1989, Brien submitted movie reviews on two R-rated films (Mississippi Burning and Rain Man) for publication in the newspaper. The school principal prevented the reviews from being published because the movies were R-rated.

Brien's mother, Patricia, brought suit on his behalf claiming that the school's censorship had violated her son's constitutional rights. The Chancery Division in Gloucester County held that the actions of school officials violated the state constitution but not the federal constitution. The school board and the school officials appealed. In affirming, the Appellate Division held that the censorship violated Brien's First Amendment rights under the federal constitution.

The Supreme Court granted the petition for certification filed by the Board of Education and the school officials.

HELD: The judgment of the Appellate Division is affirmed, substantially for the reasons expressed in the majority opinion below. The Court also determines that the school, as a non-public forum, failed to prove that it had established a policy related to legitimate pedagogical concerns.

1. Whether a school newspaper is a "public forum" can determine whether attempts to limit or control the views expressed in the newspaper violate constitutional rights. The Appellate Division correctly concluded that the Pioneer Press was not a public forum within the [***3] definition of the United States Supreme Court. (pp. 3-6)

2. Speech in a non-public forum may be subject to reasonable restrictions. The United States Supreme Court has said that school officials may exercise editorial control over the style and content of student speech so long as their actions are reasonably related to legitimate pedagogical concerns. The Court believes that it does not need to reach the question of whether there is a significant distinction between "subject-matter" and "content or style" in determining the scope and application of educational policy because the Board and the school officials failed to prove that a legitimate policy had been established. (pp. 6-11)

3. The difficulty in resolving the basic question of whether there was an established and legitimate educational policy in place points up the need to use administrative expertise - in this case, the Commissioner of Education - in the initial stage of the review process. (pp. 11-15)

The judgment of the Appellate Division is AFFIRMED.

JUSTICES HANDLER, O'HERN, and GARIBALDI join in the Court's opinion in its entirety. JUSTICES CLIFFORD and STEIN join in all but Part III (initial review by Commissioner of Education) of the opinion. JUSTICE POLLOCK has filed a separate concurring and dissenting opinion in which CHIEF JUSTICE WILENTZ joins.

POLLOCK, J., concurring and dissenting, is of the view that although he would affirm the judgment below because the evidence of the school policy was vague and inconsistent, he believes that the courts are required to accord more respect to the decisions of the school officials than the majority does. He also believes that the Commissioner of Education could serve a more useful role by reviewing the policies of local boards and rendering declaratory orders pursuant to N.J.A.C. 6:24-2.1 prior to the parties resorting to litigation.

Robert A. Muccilli argued the cause for appellants (Capehart & Scatchard, attorneys; Alan R. Schmoll, of counsel).

William H. Buckman, on behalf of the American Civil Liberties Union of New Jersey, argued the cause for respondent.

Gregory J. Schwartz submitted a brief on behalf of amicus curiae, Student Press Law Center (Porzio, Bromberg & Newman, attorneys).

Justices CLIFFORD and STEIN do not join in Point III of this opinion. POLLOCK, J., concurring and dissenting. Chief Justice WILENTZ joins in this opinion. Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN. Justices CLIFFORD and STEIN. Chief Justice WILENTZ, and Justice POLLOCK.

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