Gambino ex rel. Kinney v. Fairfax County School Board

DONALD RUSSELL, Circuit Judge,

dissenting:

I dissent.

I take it as accepted that the administration of a secondary school has a perfect legal right to determine whether a thorough presentation of the various methods of contraception should or should not be included in the school curriculum. Mercer v. Michigan State Board of Education (3 judge ct. E.D.Mich.1974) 379 F.Supp. 580, aff’d, 419 U.S. 1081, 95 S.Ct. 673, 42 L.Ed.2d 678. It would make a plain mockery of such a right, however, if the administration’s determination could be frustrated by the publication in a paper, designed for distribution among the secondary school pupils, supported financially from school funds, and intended to be supervised, as this one was, by a faculty representative, of a full course in contraceptive practices, under some notion that the student editor of such a school paper enjoys complete freedom to publish in such paper anything he or she chooses under the First Amendment. I said on behalf of the panel in Quarterman v. Byrd (4th Cir. 1971) 453 F.2d 54, 57-8, quoting from the concurring opinion of Justice Stewart in Tinker v. Des Moines School District (1969) 393 U.S. 503 at 515, 89 S.Ct. 733 at 741, 21 L.Ed.2d 731, and I still believe, that the First Amendment rights of secondary school pupils are not “ ‘co-extensive with those of adults’ ” and that such rights may be “modified or curtailed” to accord to legitimate school concern. To repeat: A school administration certainly has a legitimate concern in eliminating from its curriculum material which may reasonably be considered as conducive to immorality and not appropriate to proper academic education; by the same token, it would seem equally clear that it would not be required to wink at the same material being taught in a backhanded way through the columns of a school paper, sponsored and largely financed by it. Cf. Trachtman v. Anker, 563 F.2d 512 (2d Cir. 1977).

I may add that it seems odd to me that, as I read the authorities, the school administration may validly forbid a teacher in the school system to instruct his or her pupils in contraceptive practices, but it is powerless to forbid the student editor of the school paper, distributed to the pupils, under the school sponsorship and with school support, from instructing on those same practices in the columns of the school paper. See, Mercer, supra, at 585-6.