Desilets v. Clearview Regional Board of Education/Concurrence-dissent Pollock

[NJ598] POLLOCK, J., concurring and dissenting.

I agree with the majority "that the evidence in this case concerning the school's educational policy was, at best, equivocal and inconsistent," and that "[t]he school board's position with respect to the policy that applied to student publications, specifically as related to matters like movie reviews, was vague and highly conclusory." Ante at 593, 647 A.2d at 154. Hence, I agree that the Court should affirm the judgment of the Appellate Division. I believe, however, that the holding of the United States Supreme Court in Hazelwood School District v. Kuhlmeir, 484 U.S. 260, 108 S.C.t. 562, 98 L. Ed. 2d 592 (1988), requires that we accord more respect to the decisions of school officials than does the majority.

Hazelwood states that "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." Id. at 273, 108 S.C.t. at 571, 98 L. Ed. 2d at 606. Those concerns include "speech that is . . . unsuitable for immature audiences." Id. at 271, 108 S.C.t. at 570, 98 L. Ed. 2d at 605.

The Rating Board of the Motion Picture Association of America has adopted a rating system that includes:

R: "Restricted, under 17 requires accompanying parent or adult guardian."

In the opinion of the Rating Board, this film definitely contains some adult material. Parents are strongly urged to find out more about this film before they allow their children to accompany them.

An R-rated film may include hard language, or tough violence, or nudity within sensual scenes, or drug abuse or other elements, or a combination of some of the above, so that parents are counseled, in advance, to take this advisory rating very seriously. Parents must find out more about an R-rated movie before they allow their teenagers to view it.

[Jack Valenti, Motion Picture Association of America, The Voluntary Movie Rating System 9 (1994).]

I believe that school officials may conclude that the restriction of the review of R-rated films in a junior high school newspaper reasonably relates to legitimate educational concerns. Some parents [NJ599] and educators may have reservations about permitting young adolescents to see R-rated films. School officials may properly adopt a standard that prevents the review of a category of films, such as those that are R-rated, even if the category includes films that some people might find the appropriate subject of a review.

The education of children is an informal partnership consisting of students, parents, teachers, administrators, and school boards. Parents expect that teachers and administrators will be responsible for the students. In discharging those responsibilities, educators make numerous decisions that restrict students' freedom. In a representative democracy, students, like the general population, regularly accept policy decisions made by appointed and elected officials. I see nothing unconstitutional in requiring students to accept the policy decisions of school officials concerning the review in a junior high school newspaper of R-rated films.

Junior high school students between the ages of twelve to fourteen years, such as the students at Clearview, are impressionable. The Legislature has restricted the activities of teenagers by preventing them from driving until they are seventeen, N.J.S.A. 39:3-10; drinking alcoholic beverages until they are twenty-one, N.J.S.A. 9:17B-1b; and from entering casinos until they are twenty-one, N.J.S.A. 9:17B-1c. Many parents and educators may find R-rated films unsuitable for children in the seventh to ninth grades. Thus, the Rating Board counsels parents to take an R-rating "very seriously. Parents must find out more about an R-rated movie before they allow their teenagers to view it." Valenti, supra, at 9. School officials could find an educational purpose in not permitting the use of the student newspaper as a means of promoting R-rated films, which some parents do not want their children to see. Students would remain free, of course, to continue to see the films if accompanied by an adult and to talk to each other about the films both in and out of school. Preventing publication of a review of an R-rated film in a school newspaper is hardly likely to stop teenagers from seeing or talking about the film.

[NJ600] Like the majority, I believe that the Commissioner of Education could perform a useful role in preventing such litigation. I believe, however, the Commissioner could serve a more useful role by reviewing the policies of local boards before litigation. On a matter as delicate as balancing constitutional rights and the authority of school officials, the Commissioner could help by defining legitimate educational concerns. By rendering a declaratory order, N.J.A.C. 6:24-2.1, the Commissioner might prevent such suits before they are filed.

Chief Justice WILENTZ joins in this opinion.