Sund v. City of Wichita Falls, Tex.
| Decision Date | 20 September 2000 |
| Docket Number | No. Civ.A.7:99-CV-155-R.,Civ.A.7:99-CV-155-R. |
| Citation | 121 F.Supp.2d 530 |
| Parties | Emiley SUND; Andrea Sund, minors, by and through their parent and next friend, Pamela Sund; Pamela Sund, individually; Richard N. Sutton, M.D.; Joseph C. (Jace) Shelton; Lois Gallenberger; Tom Fairclough; Nancy Horvath; Michael Land; Vernon Raschke; La Verna L. Sobiesk; Emory J. Sobiesk, M.D.; Blair P. Coleman; Ann B. Coleman; Mildred Gore Lancaster; Bob G. Baggott, Sr.; Dan Lewandowski; Michael Bauman, a minor, by and through his parent and next friend, Mitch Bauman; Mitch Bauman, individually, Plaintiffs, v. CITY OF WICHITA FALLS, TEXAS; Jim Berzina, in his official capacity as City Manager for the City of Wichita Falls; and Linda Hughes, in her official capacity as Library Administrator of the Wichita Falls Public Library, Defendants. |
| Court | U.S. District Court — Northern District of Texas |
John K. Horany, Law Office of John K. Horany, Dallas, TX, Robert Morgan Hampton, True & Schrandt, Wichita Falls, TX, for plaintiffs.
Mark T. Price, Wichita Falls, TX, for defendants.
AMENDED MEMORANDUM OPINION
This case involves the censorship of two acclaimed books, Heather Has two Mommies, by Leslea Newman (Alyson Wonderland Publications 1989) and Daddy's Roommate by Michael Willhoite (Alyson Wonderland Publications 1990).1 Both are children's picture books—Heather is a 46-page black and white book, and Daddy's Roommate is 32 pages in color—written for very young children about the subject of children who have gay and lesbian parents.
The two Books have been endorsed by educators, psychologists, and librarians. Indeed, Linda Hughes—the Library Administrator of the Wichita Falls Public Library —feels strongly that Heather and Daddy's Roommate are "a wonderful way to explain to children that you may live in a different lifestyle, but the important thing is people love you."2
As discussed below, the City Council of Wichita Falls—by a four to three vote— passed a Resolution which gave 300 people with library cards the right to censor Heather Has Two Mommies and Daddy's Roommate, by having these Books removed from the children's section of the Library and placed in the adult book section. This opinion holds that this unique Resolution is unconstitutional under the First and Fourteenth Amendments to the United States Constitution and Article 1, Section 8 of the Texas Constitution.
In September 1997, the Wichita Falls Public Library purchased two copies of Heather Has Two Mommies and two copies of Daddy's Roommate ("the Books") in accordance with the Library's Collection Development Policy. That is, the Library's Collection Manager had received more than four requests that the titles be considered for purchase—and there had been multiple Inter-Library Loan requests for the Books. Before the purchase, both the Collection Manager and Library Administrator, Linda Hughes, had checked professional reviewing publications and recommended bibliographies of youth materials for titles on the subject of homosexual parents.
Daddy's Roommate was the first book written for children of gay men. The fullcolor illustrations depict a boy, his father, and his father's partner "as they take part in activities familiar to all kinds of families: cleaning the house, shopping, playing games, fighting, and making up." A review of the book in Publishers Weekly states:
3
Heather Has Two Mommies tells the story of the 3-year-old daughter of a lesbian couple, such as Joshua, who has a mommy and stepfather, and David, whose two brothers and sisters are not the same color as he is because they are all adopted. (See Exhibit 1 to Plaintiffs' Amended Complaint.)
Before the library's purchase of Heather and Daddy's Roommate, the Library collection had no other titles on the subject of children with gay parents for children from preschool to the sixth grade. After two copies of each book were purchased by the Library, they were catalogued—one copy of each in "Youth Picture Books" and the other copies in "Youth Reference"— and, on October 4, 1997, they were placed on the library's shelves.
Before May of 1998, the Library received only two complaints about Heather Has Two Mommies and Daddy's Roommate. However, according to Library Administrator Linda Hughes, the Books had been checked out "only two or three times" during this period. However, in May 1998, a number of individuals and special interest groups began attempts to censor the Books—which they considered to be offensive and objectionable. These individuals and groups, many of whom objected to the perceived messages of Heather and Daddy's Roommate on religious grounds, felt as if they were waging a "moral battle" against the Books.
For example, Reverend Robert Jeffress —Pastor of the First Baptist Church in Wichita Falls, who first learned of the Books in May of 1998—checked out both copies of the two Books and refused to return them. Reverend Jeffress wanted to keep Heather and Daddy's Roommate out of the hands of members of his congregation —and anyone else in the community —because he objected vehemently to the perceived "homosexual message" of the Books. Indeed, Reverend Jeffress destroyed the Books, but later reimbursed the Library $54.00 for their cost—but only with the demand that Linda Hughes, Library Administrator, not purchase any replacement copies.
In response to the controversy surrounding the two Books, the Library Advisory Board—a nine-member advisory board that issues non-binding recommendations to the Library on circulation and collection issues—agreed to reconsider the appropriateness of the two Books for children. In June 1998, after careful consideration, the Advisory Board recommended that both Heather and Daddy's Roommate remain in the children's areas of the Library. Then, Library Administrator Linda Hughes placed both Books in the Youth Non-Fiction section of the Library, an area that targets juveniles ages 9 through 13.
Reverend Jeffress and others who wanted to ban the Books entirely from the Library next turned to the Wichita Falls City Council. At first, the Council rejected their attempts to ban Heather Has Two Mommies and Daddy's Roommate.
However, the City Council finally gave in to the relentless pressure and, on February 16, 1999, by a four to three vote, passed Resolution 16-99, which became known as the "Altman Resolution."4 This Resolution was, without question, passed with the primary purpose of limiting access to the two Books by patrons of the Library. The Altman Resolution states:
SECTION 1. There shall be a right to petition with regard to materials placed in the children's areas created in the Wichita Falls Public Library, in which books or other publications meeting the criteria set out below shall be removed from the children's areas and placed in the adult areas of the library.
The criteria for removing materials from the children's areas of the library to the adult area shall be as follows:
1. Only materials marketed or designed primarily for children age twelve (12) and under shall be eligible for removal from children's areas;
2. At least three hundred (300) members of the library at least eighteen (18) years of age who hold valid library cards must sign a petition entitled "Petition Concerning a Publication in the Children's Areas of the Wichita Falls Public Library" setting forth substantially the following:
a. This petition concerns the following publication: (description of publication);
b. By our printing our first name, middle name or initial, and last name, and signing our usual signature on this petition, each of us do certify that we have read the above-referenced publication;
c. We believe that the material contained in such publication to be of a nature that it is most appropriately read with parental approval and/or supervision (emphasis added);
d. We respectfully request that the above-captioned publication be removed from the children's areas of the library and placed in the adult areas (emphasis added);
e. We live within the city limits of Wichita Falls and have resided here for at least six (6) months. We have a valid library card from the Wichita Falls Public Library.
It is obvious that the Altman Resolution establishes a draconian procedure that permits 300 adults who have library cards—out of a total of over 100,000 residents in Wichita Falls—to censor any children's books to which they object (like Heather Has Two Mommies and Daddy's Roommate).
Under the Altman Resolution, a book must be removed from the children's area of the Library to the adult areas if, in the opinion of 300 petitioners—who may or may not have minor children—the book is "of a nature that it is most appropriately read with parental approval and/or supervision." Once petitions with 300 signatures by Library patrons are filed with the Library Administrator, the Altman Resolution requires her to remove targeted books from the children's area within 24 hours. Linda Hughes, the Library...
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