E0 'soud
Got7SzbbeTS
eT:ET 200E
se Nnf
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SENECA BOOK CO., INC.
d/b/a DAMASCENE BOOK CELLAR,
-againstTHE STATE UNIVERSITY OF NEW YORK,
SUNY ONEONTA, LEIF HARTMARK,
Defendants.
OF COUNSEL:
APPEARANCES:
Culnan, Esq.
Iseman, Cunningham, Riester & Hyde
9 Thurlow Terrace
Albany, NY 12203
Attorney for Plaintiff
Brian M.
Attorney General's Office
The Capitol
Albany, NY 12224
Attorney for Defendants
Steven H. Schwartz, Esq.
Decision and Order
MCAvoy, J:
Plaintiff brought this action pursuant to 42 U.S.C. § 1983
alleging that his First Amendment and Equal Protection rights were
violated by Defendant's policy excluding it from orientation at
SUNY Oneonta.
The Court has considered the various affidavits and
memoranda of law submitted by the parties.
Further, the Court
heard oral argument on September 9, 2002.
For the reasons stated on the record followtag oral argument
90/20
9 W ON 95-1.L 20, 50/90
60+71;s"Pi
c
S0'3Jdd
ei:zi
60VSZbb9TS
200z SO Nnf
.
Of the parties, Defendants' Motion for summary judgment is granted
Plaintiff's claim is dismissed.
The Clerk is directed to close the
file.
IT IS SO ORDERED
September 30, 2002
Hon. .Thomas J. McAvoy
Jf
U.S. District Judge
2
90/20
926'ON 95:LL 20, 50/90
6017SV7178LS
b0'3gdd
60vS2bv9SS
BT:Zti S00Z S0 Nflf
(C
2
UNITED STATES DISTRICT COURT
3
NORTHERN DISTRICT OF NEW YORK
4
---------------------------------------------
5
SENECA BOOK COMPANY, INCORPORATED
6
7
8
9
10
Plaintiff,
-versus-
01-CV-803
( DECISION)
11
12
STATE UNIVERSITY OF NEW YORK, ET AL.
13
14
15
Defendant.
16
17
---------------------------------------------
18
TRANSCRIPT OF PROCEEDINGS held in and for
19
20
the United States District Court, Northern District of
21
New York, at the James T. Foley United States Courthouse,
22
445 Broadway, Albany, New York 12207, on MONDAY,
23
SEPTEMBER 9, 2002, before the HON. THOMAS J. McAVOY,
24
United States District Court Judge.
25
UNITED STATES DISTRICT COURT REPORTER - NDNY
BONNIE J. BUCKLEY, RPR
90/ 170
9£6' ON 95 = L L 20.
50/90
601752"815
S0*30k~d
BT:ZT 200E s0
60vSzbb8TS
SENECA BOOK v STATE UNIVERSITY OF NEW YORK, et al.
1
2
APPEARANCES:
3
4
FOR THE PLAINTIFF:
5
6
ISEMAN, CUNNINGHAM LAW FIRM
7
BY:
BRIAN CULNAN, ESQ.
8
9
10
11
12
FOR THE DEFENDANT:
13
14
NYS ATTORNEY GENERAL'S OFFICE
15
BY: STEVEN SCHWARTZ, AAG
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT REPORTER - NDNY
BONNIE J. BUCKLEY, RPR
90/50
9~6'ON 95:LL 20, 50/90
60 175£"SLS
nnr
2
90'99dd
ati:zi zeoz
60bszbb8Ts
s0 Nnf
SENECA BOOK v STATE UNIVERSITY OF NEW YORK, et al.
1
( Court commenced at 10:10 AM.)
2
THE CLERK:
Number 7. Seneca Book Company
3
Incorporated versus State University of New York, et al.,
4
2001-CV-803.
5
May I have the appearance for the plaintiff.
CULNAN:
6
7
8
9
Appearing on behalf of the
plaintiff, Brian Culnan, from Iseman, Cunningham.
MR. SCHWARTZ:
Steven Schwartz, Attorney
General's Office for the defendant SUNY Albany.
10
(Oral argument heard.)
11
(The following bench decision rendered):
12
13
14
is
16
17
18
19
20
21
22
23
24
25
UNITED STATES DISTRICT COURT REPORTER - NDNY
BONNIE J. BUCKLEY, RPR
90/90
926'ON 95: LL 20, 50/90
60*752 17 17815
Ze'30dd
60vs2vveTs
ZZ:ZT Z00Z s0
nnf
SENECA BOOK v STATE UNIVERSITY OF NEW YORK, et al.
1
THE COURT:
All right.
Plaintiff brings this
2
action seeking an injunction to allow it to advertise and
3
solicit business on campus at SUNY Oneonta during the SUNY
4
Oneonta orientation.
5
Excuse me for just a minute here I've got to
6
take a blood test just to pass my time.
7
( Pause.)
8
THE COURT:
9
defendant's motion for summary judgment.
10
Presently before this Court is
In determining this motion, the Court applies
11
the well-settled standard for summary judgment. See
12
Weinstock versus Columbia University, 224 F.3d 33, at 41.
13
4
As a preliminary matter, the Court must
14
determine what analytical framework to use on this motion.
15
Plaintiff alleges, citing Fox versus Board of Trustees of the
16
State University of New York, 841 F.2d 1207, reversed on
17
other grounds, 492 U.S. 469, that the Court should view this
18
matter as one involving the regulation of commercial speech
19
and should not consider the type of forum at issue.
20
Defendants, by contrast, argue that the Court should first
21
determine what type of forum is present at SUNY Oneonta and
22
then determine whether the state regulation is appropriate
23
for that type of forum.
24
25
Fox involved the unusual situation in which
the parties on appeal were different from those in the
UNITED STATES DISTRICT COURT REPORTER - NDNY
BONNIE J. BUCKLEY, RPR
0L/ZO
H6'ON ZO:ZL 0, SO/90
60'7S£"SLS
bz:zi Z00Z SO Nnf
60VSZtbb8ZS
20*300d
SENECA BOOK v STATE UNIVERSITY OF NEW YORK, et al.
1
District Court.
2
a seller of housewares should be granted access to the SUNY
3
campus, an issue similar to the one faced by the Court here.
In the District Court, the issue was whether
By contrast, on appeal, the seller had dropped out of the
5
litigation, and the issues surrounded the rights of SUNY
6
students who lived at the school's dormitories.
7
The Second Circuit stated, quote:
8
Since this case no longer involves the rights
9
of third persons to gain access to state-owned property to
10
give or receive speech, but, rather, the free speech rights
11
of students who, as dormitory residents, have an undisputed
12
right of access to their rooms as well certain privacy
13
, rights, the public forum cases thought applicable by the
14
' District Court are inapposite.
15
Fox at 1212. By contrast to Fox, in the case
16
before the Court, the plaintiff is clearly a third party
17
seeking access to state-owned property.
18
right of students to receive information is not before the
19
Court; rather, the Court is asked to determine whether
20
Damascene should be allowed access to SUNY Oneonta campus.
21
This question requires an analysis of the Government forum
22
created.
23
not guarantee unlimited access to public property.
24
respect to Government property, the Supreme Court has
25
developed a forum analysis in which the interests of the
Consequently, the
The protections afforded by the First Amendment do
UNITED STATES DISTRICT COURT REPORTER - NDNY
BONNIE J. BUCKLEY, RPR
0L/20
L26'ON 20:ZL M 50/90
60175~"SLS
With
bF:ZT ZOOZ Se Nnf
60vszbveTS
b0'3JUd
SENECA BOOK v STATE UNIVERSITY OF NEW YORK, et al.
1
Government in limiting the use of its property is balanced
2
against the interests of individuals wishing to use the
3
property for expressive activity.
4
Legal Defense and Educational Funds, Incorporated, 473 U.S.
5
788, at 800; Travis versus Owego-Apalachin School District
6
927 F.2d 688, at 691.
6
See Cornelius versus NAACP
The right to access public property
for First Amendment purposes depends upon the character of
8
the property at issue.
9
Central School, 121 Supreme Court 2093, at 2099; Perry
See Good News Club versus Milford
10
Educational Association versus Perry Local Educators'
11
Association, 460 U.S. 37, at 44; Bronx Household of Faith
12
versus Community School District Number 10, 127 F.3d 207, at
13
211.
14
the First Amendment in three ways: One, the traditional
15
public forum; two, the designated or limited public forum;
16
and three, the nonpublic forum. See Cornelius, at 802; Bronx
17
Household, at 211.
18
Public property has been characterized for purposes of
Venues like streets and parks constitute
19
traditional public forms which have, quote, immemorially
20
been held in trust for the use of the public and have been
21
used for purposes of assembly, communicating thoughts between
22
citizens, and discussing public questions, close quote.
23
Hague versus Committee for Industrial Organization, 307 U.S.
24
496, at 515. Content-based limitations on speech in such
25
forums are subject to strict scrutiny analysis and will be
UNITED STATES DISTRICT COURT REPORTER - NDNY
BONNIE J. BUCKLEY, RPR
0L/170
L£6'ON ZO:ZL £0. SO/90
60'7S£"BLS
VE:ET E30E s0
60vszbbeis
SO *3sdd
nnf
SENECA BOOK v STATE UNTVERSITY OF NEW YORK, et al.
7
upheld only where they are narrowly drawn to achieve a
compelling state interest. International Society for Krishna
3
Consciousness versus Lee,
4
45.
5
505 U.S. 672, at 678; and Perry, at
The nonpublic forum, on the other hand,
6
encompasses public property that is not by tradition or
7
designation a forum for communication.
8
property is subject to time, placee and manner restrictions,
9
and may be reserved for its intended purposes so long as
Perry, at 46. Such
10
reasonable regulations on speech are not based upon public
11
officials' opposition to the speaker's viewpoint.
12
' 46.
13
Perry, at
Limited public forums are created by
14
Government designation of a place or channel of communication
15
for use by the public at large for assembly and speech,
16
use by certain speakers, or for the discussion of certain
17
subjects.
18
U.S. at 802. The state's restriction on speech in a limited
19
public forum, quote, must not discriminate against speech on
20
the basis of viewpoint, and the restriction must be
21
reasonable in light of the purpose served by the forum, close
22
quotes.
23
Cornelius, 473 U.S. at 806.
24
25
Bronx Household, at 211, quoting Cornelius, 473
Good News Club, 121 S.Ct. at 2100, quoting
.
Indeed, quote, the state may be justified in
reserving its forum for certain groups or for the discussion
UNITED STATES DISTRICT COURT REPORTER - NDNY
BONNIE J. BUCKLEY, RPR
OL/SO
for
L WON 20:2L £0, 50/90
60'75£"M
90'39dd
bz:zi 200E Se Nnf
60vSzbbetiS
SENECA BOOK v STATE UNIVERSITY OF NEW YORK, et al.
8
Good News Club, 121 S. Ct.
1
of certain topics, close quote.
2
at 2100, quoting Rosenberger versus Rector and Visitors of
3
University of Virginia, 515 U.S. 819, at 829. Constitutional
protection in a limited public forum is afforded only to,
5
quote, expressive activity of a genre similar to those that
6
the Government has admitted to the limited public forum,
7
close quote.
8
9
Travis, 927 F.2d at 692.
The Court finds that orientation at SUNY
Oneonta is a limited public forum.
SUNY Oneonta holds
10
orientation in order to educate new students and their
11
parents regarding the resources available to students
12
on-campus and the financial institutions available to the
13
students in the area.
14
to on-campus student groups, the on-campus bookstore and
15
other on-campus vendors and local banks. No off-campus
16
commercial sellers, other than the banks, are permitted
17
during orientation.
18
resources available to them in the on-campus community and to
19
avoid pressuring students into making decisions the first
20
week on campus. Thus, the on-campus bookstore, cafeteria and
21
students groups are afforded the opportunity to set up booths
22
for students.
23
banking is not provided anywhere on campus, local banks
24
should be permitted to set up tables in the student union
25
during orientation.
Thus far, orientation has been limited
The college seeks to inform students of
The college has also determined that since
These are the only groups allowed access
UNITED STATES DISTRICT COURT REPORTER - NDNY
BONNIE J. BUCKLEY, RPR
01./90
L£6'ON ZO:ZL £0, SO/90
60*/5£"SLS
vE:ET sooE
60bs21bl7BZs
L3'30dd
so Nnr
SENECA BOOK v STATE UNIVERSITY OF NEW YORK, et al.
1
to the orientation.
2
Plaintiff, as a book seller, is not of a genre
3
similar to on-campus groups because it is undisputed that the
bookstore is not on campus.
Plaintiff is also not an
5
ins titution similar to a bank, as it is not a financial
6
institution.
7
restrictions are reasonable, the university may exclude
8
plaintiff from the orientation.
9
Consequently, as long as the university's
This Court recognizes that a university is
10
entitled to impose reasonable restrictions on access to its
11
campus consistent with its educational mission. See Widmar
12
versus Vincent, 454 U.S. 263, at 268, footnote 5.
13
university's restrictions regarding orientation are
14
The
reasonably related to achieving its educational mission.
r
The
15
I~ orientation period, as the university has conceived it, is a
16
time to orient students to the resources available to them on
17
campus and allow them to set up bank accounts in what is
18
likely a new town.
19
outside vendors in an attempt to keep the focus of
20
orientation on the campus community and to avoid sales
21
pitches being made to students at a time when they are new to
22
the university and, thus, more impressionable.
23
The university denies access to all other
Finally, the Court notes that plaintiff has
24
not been denied all access to the university. Plaintiff
25
advertises in the course catalog and student newspaper and is
UNITED STATES DISTRICT COURT REPORTER - NDNY
Bonnie J. BUCKLEY, RPR
O l,/LO L£6 "ON £0 : Z L E0, 50/90
60 17SE 17 172 LS
a0'd0dd
SZ:ZZ S00z SO
60VS2"8TS
nnf
SENECA BOOK v STATE UNIVERSITY OF NEW YORK, et al.
1
able to hang fliers around the campus as well as operate a
2
shuttle service.
3
orientation be limited to on-campus vendors and banks is
4
reasonable in light of the educational mission of SUNY
5
Oneonta.
6
of the defendant.
10
The restriction of the university that
Consequently, summary judgment is granted in favor
Plaintiff's equal protection argument fails
7
Plaintiff did not show that it is
8
for the same reason.
9
similarly situated to the other groups granted access to
10
orientation and, thus, no equal protection claim will lie.
11
See Harlen Associates, 273 F.3d 494, at 499, quoting
12
LaTrieste Restaurant and Cabaret versus Village of Port
13
Chester, 40 F.2d 587, at 590. The equal protection clause
14
requires that the Government treat all similarly situated
15
people alike.
16
violation of the equal protection clause, the plaintiff must
17
claim:
18
similarly situated individuals; and two, that such
19
differential treatment was based on impermissible
20
considerations such as race, religion, intent to inhibit or
21
punish the exercise of constitutional rights or malicious or
22
had faith intent to injure a person. Harlen Associates, at
23
499.
24
plaintiff in this case. Therefore, the equal protection
25
argument fails as well.
OL/80
Harlen Associates, at 499.
To allege a
One, that he was treated differently from other
No sufficient circumstances have been shown by the
UNITED STATES DISTRICT COURT REPORTER - NDNY
BONNIE J. BUCKLEY, RPR
11
60179E"SLS
L~6'ON 20:21. 20. 50/90
SZ : ZT Z00Z SO Nflf
60bszbbeTS
60'3Jdd
SENECA BOOK v STATE UNIVERSITY OF NEW YORK, et al.
1
The Court notes that plaintiff has withdrawn
2
its claims for monetary damages and its claim against the
3
individual defendant.
Therefore, the defendant's motion for
summary judgment on the remaining claims is granted.
5
Mr. Schwartz, would you submit an order.
6
Mr. Schwartz:
7
THE COURT: Thank you for an interesting
8
Yes, your Honor.
Thank you.
argument.
9
Court stands adjourned.
10
MR. CULNAN :
11
(Court adjourned at 10:40 AM.)
Thank you, your Honor.
12
13
14
15
16
17
is
19
20
21
22
23
24
25
0L/60
11
L26"ON
UNITED STATES DISTRICT COURT REPORTER - NDNY
BONNIE J. BUCKLEY, RPR
601t5E"8L5
20:ZL 20. SO/90
0Z'30dd
SE:zi Z00Z Se Nnf
60bSzbveTS
12
1
CERTIFICATION
2
3
I, BONNIE J. BUCKLEY, RPR, Official Court
4
5
Reporter in and for the United States District Court,
6
Northern District of New York, do hereby certify that I
7
attended at the time and place set forth in the heading
8
hereof; that I did make a stenographic record of the
9
proceedings held in this matter and caused the same to be
10
transcribed; that the foregoing is a true and correct
11
transcript of the same and whole thereof.
12
13
14
15
16
BONNIE J.
17
Official Court Reporter
18
19
20
DATED:
OCTOBER 18, 2002
21
22
23
24
25
UNITED STATES DISTRICT COURT REPORTER - NDNY
BONNIE J. BUCKLEY, RPR
0L/0L
Z~6'ON 20:ZL 20. 50/90
60*752"8LS