The effect of remitting the proceeding to the Special Term to take proof is that a judge will decide whether organizations such as Lodge No. 9, B’Nai B’rith, the Henry Jones State Lodge, the Southwestchester Chapter of Americans for Democratic Action, for example, which have been allowed to use the Yonkers schools for meetings “ are in the same category” as the Yonkers Committee for Peace, which has been refused use of the schools, on behalf of which the petitioner maintains this proceeding. Even if the Judge *346reaches the conclusion that these organizations are in the same category he will then be required to decide that the commissioner was so far wrong in his view of dissimilarity that his decision was arbitrary and unreasonable. The Judge would not be able to hold this merely because he might differ with the commissioner on the issue of similarity; but could annul the determination only if he held that no reasonable man- would make the determination the commissioner did. This is the frame of judicial review in such a case.
When it comes to putting community organisms of the kind involved here into “ categories ” of similarity or dissimilarity, one moves immediately into the area of subjective judgment. The traditional courtroom trial and adjudication is too limited to offer adequate solution. In the end it will come down to what the judge who hears the case thinks about what relative similarity or difference in these organizations may be. The rule of stare decisis or well-worn rules of law are of little help in charting the areas of subjective judgment involved.
That is why it seems to be especially important here that we read section 310 of the Education Law the way the Legislature wrote it, and as it has stood in the statute law of New York for over a century, that when resort has been voluntarily had by a party aggrieved to the appellate jurisdiction of the State Commissioner of Education on a matter internal to the public school system, the commissioner’s determination is final and not subject to review. This is especially the case whether there are other direct remedies to a court available, but instead of using them, recourse is taken within the education structure by an appeal to the commissioner. In the original proceeding against the city board of education the court expressly held that a direct judicial remedy was available and properly before the court but that petitioner’s papers were insufficient. (Matter of Ellis v. Dixon, 281 App. Div. 987.)
There was opportunity in the appeal to the commissioner to show the similarity of the organizations permitted to use the schools and the organization which petitioner represents, and it is reasonable to think that nothing of substance will be added to this essentially subjective argument upon a trial. The proof which the court’s decision here directs to be taken by the court at Special Term could have been taken before the commissioner. No request was made by petitioner to establish in a trial before the commissioner that the organizations permitted use of the Yonkers school property were comparable with the petitioner’s organization. He rested his appeal on his papers. The petitioner’s attorney in that proceeding clearly was of opinion that *347there was no substantial issue of fact before the commissioner.
In response to the invitation of counsel to the Education Department to present oral argument of the appeal, petitioner’s attorney declined; but added that “If you [counsel] believe ” that the “issue of fact ” raised in respondent’s answer before the commissioner “is not frivolous” it will be “ necessary ” that proof be taken. If petitioner wanted a hearing he should have asked for it in plain terms and not indicated to the department’s counsel that he believed the answer frivolous and only if the counsel was of a different opinion and felt it was not frivolous a hearing would be “ necessary ”. Even on this appeal there is no plain statement in the petitioner’s brief that there is a triable issue for the Special Term. What petitioner asks for is a final order of annulment based on his constitutional argument. The commissioner’s appellate view on the subject, which is not technical law at all but essentially a matter of community judgment, is likely to be as sound as a trial judge’s would be.
On the ultimate question whether the decision of the commissioner is to be deemed reasonable or arbitrary, the schools are maintained for public education; and although there is a custom to use some of them also for community meeting and discussion, the school boards in charge of the buildings are entitled to impose limitations on the scope of their use for noneducational purposes. To draw the line between uses which are orderly, peaceful, and harmonious with the general education program; and uses which may be disruptively controversial and which divide the community into hostile areas does not seem unreasonable when it comes to noneducational utilization of public school property.
To draw upon historical examples, no one would have denied the Single Taxers or the Free Silver advocates the right to express their views publicly and at large in the face of violent hostility and derisive opposition. But to encourage this kind of controversy to have full expression in the community forum does not mean necessarily that it must be permitted to have that full expression in the public schoolhouse.
Where the local judgment of the school board is that one use would be so controversial and disruptive as to be harmful to the school and another use would not be harmful; and where this judgment is confirmed on review by the public officer having highest administrative responsibility for the education policy of the State, we ought not readily find that those determinations are so arbitrary that they ought to be undone by the court because the party complaining of the determinations pursues *348the argument that the use he proposes will be just as peaceful as those which have been permitted. The court is not equipped to make a better judgment in this field than the Commissioner of Education.
I vote to affirm the order.
Coon, Halpern and Gibson, JJ., concur with Foster, P. J.; Bergan, J., dissents, in an opinion.
Order reversed, without costs and the matter remitted to the Special Term to take proof.