Gambino ex rel. Kinney v. Fairfax County School Board

Fourth Circuit

Gambino ex rel. Kinney v. Fairfax County School Board

564 F.2d 157

Court of Appeals for the Fourth Circuit·Decided October 17, 1977·No. No. 77-1326·Published·Cited by 4 cases

Opinions

PER CURIAM:

The Fairfax County School Board appeals the district court’s order enjoining it from banning the publication of portions of an article about birth control in a school newspaper, The Farm News

* The Board’s major contentions are that (1) the first amendment does not apply to The Farm News because it is an in-house organ of the school system, funded and sponsored by the Board, [158]*158and therefore cannot be viewed as a public forum; (2) the school’s students are a captive audience because the newspaper is solicited for and distributed during school hours, and students cannot avoid exposure to the controverted article — therefore the public forum doctrine does not apply; and (3) even if the newspaper itself is subject to the first amendment protection, the article is not protected because its publication would undermine a valid school policy which prohibits the teaching of birth control as part of the curriculum.

Upon considering the Board’s general policy toward student publications, as well as past articles in The Farm News, the district court found that the newspaper was established as a public forum for student expression, and therefore is subject to first amendment protection. It also concluded that the students are not a captive audience merely because of their compulsory attendance at the school. Finally, the court concluded that because the newspaper was established as a public forum and not as an official publication, it cannot be viewed as part of the curriculum; accordingly, the general power of the Board to regulate course content does not apply.

Because we conclude that the district court’s findings are substantially supported by both the evidence and the law, we affirm for the reasons stated in its opinion. Cf. Bayer v. Kinzler, 383 F.Supp. 1164 (E.D.N.Y.1974), aff’d without opinion, 515 F.2d 504 (2d Cir. 1975).

Affirmed.

The district court’s opinion is reported as Gambino v. Fairfax County School Board, 429 F.Supp. 731 (E.D.Va.1977).

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PER CURIAM:

The Fairfax County School Board appeals the district court’s order enjoining it from banning the publication of portions of an article about birth control in a school newspaper, The Farm News

* The Board’s major contentions are that (1) the first amendment does not apply to The Farm News because it is an in-house organ of the school system, funded and sponsored by the Board, [158]*158and therefore cannot be viewed as a public forum; (2) the school’s students are a captive audience because the newspaper is solicited for and distributed during school hours, and students cannot avoid exposure to the controverted article — therefore the public forum doctrine does not apply; and (3) even if the newspaper itself is subject to the first amendment protection, the article is not protected because its publication would undermine a valid school policy which prohibits the teaching of birth control as part of the curriculum.

Upon considering the Board’s general policy toward student publications, as well as past articles in The Farm News, the district court found that the newspaper was established as a public forum for student expression, and therefore is subject to first amendment protection. It also concluded that the students are not a captive audience merely because of their compulsory attendance at the school. Finally, the court concluded that because the newspaper was established as a public forum and not as an official publication, it cannot be viewed as part of the curriculum; accordingly, the general power of the Board to regulate course content does not apply.

Because we conclude that the district court’s findings are substantially supported by both the evidence and the law, we affirm for the reasons stated in its opinion. Cf. Bayer v. Kinzler, 383 F.Supp. 1164 (E.D.N.Y.1974), aff’d without opinion, 515 F.2d 504 (2d Cir. 1975).

Affirmed.

The district court’s opinion is reported as Gambino v. Fairfax County School Board, 429 F.Supp. 731 (E.D.Va.1977).

Gambino ex rel. Kinney v. Fairfax County School Board, 564 F.2d 157 (4th Cir. 1977).

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