DiBona

Plaintiffs Alan DiBona and J. Scott Gundlach, a college teacher and student respectively, appeal following the entry of summary judgment in favor of defendants Robert L. Matthews and James Hardison, administrators with the San Diego Community College District. Plaintiffs claim there are issues of fact which remain to be litigated in their claim that defendants violated their constitutional rights by cancelling a drama class because of the subject matter of the play DiBona had selected for the students to perform. We agree and reverse the summary judgment.

Factual and Procedural Background

Viewed in the light most favorable to the plaintiffs, the record before the court on the motion for summary judgment reveals the following story. The Educational Cultural Complex (ECC) is a branch of the San Diego Community College District located in Southeast San Diego. ECC offers college and adult education courses. Alan DiBona began teaching at ECC on a part-time basis in the fall of 1985. He taught the Drama 250 course during the fall and spring semesters and was asked to again teach the same course for the summer session. The curriculum for Drama 250 requires that the students…

WIENER, Acting P.J.

Plaintiffs Alan DiBona and J. Scott Gundlach, a college teacher and student respectively, appeal following the entry of summary judgment in favor of defendants Robert L. Matthews and James Hardison, administrators with the San Diego Community College District. Plaintiffs claim there are issues of fact which remain to be litigated in their claim that defendants violated their constitutional rights by cancelling a drama class because of the subject matter of the play DiBona had selected for the students to perform. We agree and reverse the summary judgment.

Viewed in the light most favorable to the plaintiffs, the record before the court on the motion for summary judgment reveals the following story. The Educational Cultural Complex (ECC) is a branch of the San Diego Community College District located in Southeast San Diego. ECC offers college and adult education courses. Alan DiBona began teaching at ECC on a part-time basis in the fall of 1985. He taught the Drama 250 course during the fall and spring semesters and was asked to again teach the same course for the summer session. The curriculum for Drama 250 requires that the students produce and…

This case presents the question of who should control the curriculum of an educational institution—the administration, the faculty, or the students. Unfortunately, although it disclaims such result, the majority answers the question by permitting the faculty and students to determine curriculum content. To the extent any administration control will remain, it will have to be pursuant to “objective standards” which will lead to court supervision. To reach this unhappy result, the majority opinion has struggled to attempt to overcome the lack of standing of appellant Scott Gundlach and the mootness of the declaratory relief claim of appellant Alan DiBona.

I believe the majority opinion, although scholarly and well written, is truly “advisory” because neither injunctive nor declaratory relief is appropriate to these parties whose relationship with the defendants was severed four years ago. Moreover, the advice it renders is at odds with recent United States Supreme Court authority regarding the power of school administrators to control curriculum content.

*1349 Mootness

The “collision” of the respective interests of these parties occurred during the summer of 1986, when DiBona was…