Ellis v. Allen , 4 A.D.2d 343 ( 1957 )

Foster, P. J.

Petitioner in this proceeding is the president of an organization known as the Yonkers Committee for Peace. The proceeding is one under article 78 of the Civil Practice Act to review a decision of the Commissioner of Education which dismissed an appeal of petitioner from the action of the Board of Education of the City School District of the City of Yonkers in refusing to allow petitioner’s organization the use of a school building. The petition herein was dismissed on the merits by an order of the Supreme Court, Albany County, and the present appeal is from that order.

School buildings are not public places in the sense that the use thereof may be demanded as a matter of right by any individual or organization as a forum for public or private discussions. However the law of New York gives to school authorities discretion to permit the use of school buildings for such' purposes (Education Law, § 414). Despite this discretionary power it is conceded by respondent that school authorities may not deny to one organization the use of school buildings and permit such use to other organizations in the same category, all factors being reasonably equal. This appears to be plain common sense. School authorities may, if they choose, close the door to all outside organizations, but if they open the door they must treat alike all organizations in the same category.

Petitioner alleged that the board of education involved here permitted the use of school property by organizations similar and comparable to his organization for the purpose of public assembly and discussion. He cited as examples the Southwestchester Chapter of the Americans for Democratic Action; Lodge No. 9, B’Nai B’rith; Henry Jones State Lodge and the American Labor Party. No proof was taken as to whether such organizations were in the same category as petitioner’s organization. Petitioner’s application was denied by the board of education, and the denial affirmed by the respondent Commissioner of Education, on the theory that the board knew that a previous meeting of petitioner’s organization, held elsewhere, had caused strife and dissension in the community; and, in addition, the board knew that petitioner had, through his business firm (petitioner is in the linoleum business) placed advertisements in communistic periodicals. It is argued here for respondent that to succeed upon the theory of discrimination petitioner was obliged to plead, in order to place his organization in the same category a§ those mentioned, that meetings of the latter had also caused strife and dissension in the community. This argument appears to us to be too tenuous to

sustain the order appealed from. A school board of course is not a censor, and its duty so far as school buildings are concerned is merely to regulate and protect them. We do not take it that it may discriminate against an organization simply because it, or even a part of the public, may be hostile to the opinions or program of such organization provided the same are not unlawful per se. If fair proof is presented that a clear and present danger exists that public disorder and possible damage to the school property will result from a proposed use then we think the board would be within its discretionary power to deny such a use. Justifiable exclusion is not discrimination. But these are matters that cannot be properly resolved upon affidavits and pleadings, at least on the kind presented here. Somewhere there should be a trial of such issues, and in this case that should lie with the Special Term. (Matter of O’Brien v. Commissioner of Educ., 3 A D 2d 321).

It is also argued by respondent that his decision in the matter is not subject to review in the courts under section 310 of the Education Law. We might be inclined to agree with this argument if the matter was purely an educational one but in our view it is not. Something more is involved. A previous application made by petitioner went its way through the State courts, and the Supreme Court of the United States, by a divided vote, ultimately denied certiorari and determined that petitioner in order to raise a constitutional question would have to allege that the board had permitted comparable organizations to use the school property for the purpose of speaking (Ellis v. Dixon, 349 U. S. 458). In this proceeding petitioner has made that very allegation, and hence we are bound to say that a constitutional issue of discrimination is presented. Moreover, and without reference to any decisions, an act that is discriminatory is generally considered to be arbitrary. Thus we think this proceeding involves issues that are reviewable in the courts.

The order should be reversed and the matter remitted to the Special Term to take proof.