The United States Court of Appeals for the Third Circuit in Philadelphia dismissed a freedom of speech case that was sparked by an incident at Tenafly High School nearly six years ago.
Science teacher Andrew Policastro’s appeal regarding the removal of a signed memo from teacher mailboxes was dismissed on Jan. 24.
The court decided that since Policastro didn’t seek damages, the case was moot. The decision read, "He did not seek damages. He seeks declaratory and injunctive relief only, which…are forms of relief we have no authority to provide on the facts here. Therefore, we will dismiss this claim as non-justiciable, because even if meritorious, we could not redress it."
Policastro said, "I didn’t think I had to sue for damages."
Tenafly High School Principal Theodora Kontogiannis, who removed the memo, is pleased with the court’s ruling. "I’m not into the legal jargon, but I believe that the judges understood why the actions were taken on that particular day. There was disruption that was created in the school by the flyer that had been circulated," she said.
This latest dismissal was surprising to Policastro, especially because he had a representative from the ACLU of New Jersey working with him. "After all this time, I was shocked at the decision. If this can cause free speech to be denied, student and teacher rights are less than what people think."
The District Court previously called the memo "plain vanilla," and Policastro said it was "not controversial at all." He also said it didn’t cause the commotion Kontogiannis cited in defense of her actions.
Although the case has been dismissed, Policastro isn’t giving up. "I’m going to ask the U.S. Supreme Court to review the case. I have 90 days from [Jan. 24] to do so."
The Tenafly Board of Education will fight the case if it reaches a higher court, but Superintendent Morton Sherman hopes that doesn’t happen. "Mr. Policastro has been persistent; however, it is time to accept the verdict and move on. Each time we have gone to court, we have spent money, which was then not available for materials, programs and staffing for our students. If Mr. Policastro appeals, there will be additional expense to the school district, not only financially, but also loss of teaching time as witnesses are called to court.
"If this case goes further, I would ask the court to extend the recent ruling to have Mr. Policastro pay for court costs to also have him reimburse our legal fees," Sherman continued.
Kontogiannis also thinks this decision should be final. "Personally I think we’d be better served to focus and channel our resources in education and for our students. I believe this is a waste of the taxpayers’ money. I don’t believe Mr. Policatro’s rights were violated. If anyone’s rights were violated, it was the students’ rights to learn because there was so much disruption. It took away from the learning process. The First Amendment does not give people the right to do whatever they feel like doing."
Policastro first filed suit in March 2004 against Kontogiannis and the Tenafly Board of Education after Kontogiannis removed a memo from teacher mailboxes on March 13, 2002.
Policastro has argued that Kontogiannis’ actions violated his First Amendment right to free speech. He also said the Mailbox Policy of Tenafly High School was unconstitutional. The school required prior approval from the principal or vice principal to distribute flyers or announcements.
The case was first dismissed on June 8, 2004 by federal Judge Joel Pisano in Newark. Policastro appealed that decision to the United States Court of Appeals Third Circuit. On Jan. 12, 2005, the appeals court sided with Policastro and ruled that the case could proceed.
Policastro has never considered dropping his suit. "The case means everything. The First Amendment comes before I do. The only reason we have these rights is to use them," he said.
Keeping the suit alive in the courts hasn’t been easy for Policastro. He has always represented himself, writing his own briefs and conducting research at the library on Sundays. His father, whom he cared for, died from cancer in 2005. Personal relationships have also crumbled. Policastro said, "I lost many friendships in this case."
He had hoped others would join his cause, but said, "I’m surprised at the lack of support from other teachers at Tenafly."
He admitted, "It takes a lot of energy out of me, but it’s certainly worth it."
Kontogiannis said the legal proceedings have taken a toll on her as well and she would like to put the issue behind her. "I’m very pleased with the ruling that the court has made and I look forward to having this case end. It’s been very draining on me personally and I feel like I’ve suffered through this case for the past six years having to defend my actions for doing what I felt was the right thing to do for my students and my staff and my building."
