On this date in 1975, the Supreme Court decided Oxfeld v. New Jersey State Bd. of Educ., 68 N.J. 301 (1978). The case involved claims of students at Columbia High School, which served South Orange and Maplewood, that the school’s regulations governing the right of students to disseminate pamphlets or leaflets on school grounds unconstitutionally infringed on the free speech rights of students who had sought to hand out anti-war materials.
By the time the case reached the appellate stage, none of the plaintiffs were still students at Columbia High School. Accordingly, the Court voted 4-2 to dismiss the appeal as moot, since the majority did not “view this case as presenting any issue of great public importance compelling definitive resolution despite mootness.” The very brief majority opinion was per curiam. Justice Clifford wrote a lengthy dissent, in which Justice Pashman joined.
The dissent began as follows: “By declaring this case moot the Court effectively permits the survival of a regulation imposing a continuing, systematic prior restraint on student distribution of written materials on school grounds [in violation of federal and New Jersey constitutional rights to free expression]. The constitutional deprivation of allegedly being visited upon students at Columbia High School strikes me as quite sufficient reason for deciding the case on its merits.” Moreover, Justice Clifford wrote, the same regulation had been adopted “word for word” in 35 or 40 other school districts, so that “some three dozen school districts, involving thousands of students, are presently affected by the Court’s decision. Hence we are dealing not with an issue of local impact but rather with one having far-reaching effects.”
Justice Clifford proceeded to discuss the fact that New Jersey’s Constitution has no “case or controversy” requirement, unlike the federal Constitution, a fact that contributed to his view that the Court should have taken up the issues presented. He also relied cases such as Tinker v.Des Moines Independent Community School Dist., 393 U.S. 503 (1969), and West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), as showing “the Constitution’s vitality within the school-house.” He also attacked the notion of “prior restraints” on speech. To this reader, the majority opinion reads like a terse attempt to duck a potentially thorny issue, while the dissent explains in detail a valid basis for its contrary view.
In an interesting side note, the attorney who argued the case for the defendant South Orange-Maplewood Board of Education was none other than David Samson, who has been in the news a lot lately for other reasons.