Policastro v. Kontogiannis, No. 06-1471 (3d Cir. Jan. 24, 2008)
The U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, V.I.) in a non-precedential decision, has ruled that a New Jersey school board’s policy restricting the use of teacher mailboxes to school business did not violate a teacher’s free speech rights, either on the policy’s face or as applied in this case. Andrew Policastro, a teacher at Tenafly High School (THS), signed a memorandum distributed to all THS staff members through the teachers’ school-provided mailboxes that addressed a labor dispute over a proposed collective bargaining contract. After receiving complaints about the memorandum, THS Principal Theodora Kontogiannis had all remaining copies removed from the mailboxes. Immediately thereafter, a teacher reinserted copies. The principal again ordered the memorandum removed and the mailroom door locked. Mr. Policastro sued Ms. Kontogiannis and the school board, alleging that the removal violated his First Amendment right to free speech and that a board policy restricting the use of teacher mailboxes was unconstitutional. The federal district court dismissed the case, finding that Mr. Policastro failed to state a valid legal claim for which relief could be granted. The Third Circuit vacated the dismissal and remanded the case to the lower court for trial. At the end of the trial, the district court decided in favor of the principal and the school board. Mr. Policastro appealed a second time.
In addressing the claim that the policy was facially unconstitutional, the Third Circuit considered only whether it was too broad, not whether it was unacceptably vague. The appeals court noted that a “regulation is unconstitutionally overbroad where there is a likelihood that [it]s very existence will inhibit free expression’ by inhibiting the speech of third parties who are not before the Court.” While acknowledging that avoidance of this “chilling effect” on speech is central to the overbreadth doctrine, the court cautioned that the “regulation’s inhibiting nature must be ‘not only real but substantial in relation to [it]s plainly legitimate sweep to be held unconstitutional.” Applying those principles to the facts of the case, the Third Circuit agreed with the district court that the policy itself had no actual or potential chilling effect on Mr. Policastro speech. THS teachers, including Mr. Policastro, continued to distribute personal documents through the teachers’ mailboxes even after the incident. THS administrators had never denied pre-approval of a mass distribution, and with this one exception, had never removed materials from the mailboxes. In addition, the appeals court agreed with the district court that the principal had expressed a legitimate government interest in keeping the mailboxes clear of clutter to prevent documents involving school business from being missed or lost. Having found the policy facially valid, the court then quickly disposed of the as- applied claim, finding that the teacher failed to show he suffered any injury under the policy or that the policy had ever been applied to him.
Lastly, the Third Circuit rejected Mr. Policastro’s claim that the principal’s removal of the memorandum from the mailboxes, irrespective of whether she acted pursuant to the policy, violated his free speech rights. The court determined that it could not consider his claim because he had not sought monetary damages but only declaratory and injunctive relief. Because the removal of the memorandum was an isolated occurrence completely unrelated to the policy, the facts presented no ongoing harm or controversy for the court to remedy. As a result, Mr. Policastro’s claim was moot, the court held.
Policastro v. Kontogiannis, No. 06-1471 (3d Cir. Jan. 24, 2008)
[Editor’s Note: For background on the case, including a summary of the district court’s opinion and the Third Circuit’s previous decision, see below.]
NSBA School Law pages on Policastro v. Kontogiannis