457 F.2d 289 (2nd Cir. 1972), 494, Presidents Council, Dist. 25 v. Community School Bd. No. 25

Docket Nº:494, 71-1958.
Citation:457 F.2d 289
Party Name:PRESIDENTS COUNCIL, DISTRICT 25, et al., Plaintiffs-Appellants, v. COMMUNITY SCHOOL BOARD NO. 25 et al., Defendants-Appellees.
Case Date:March 21, 1972
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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457 F.2d 289 (2nd Cir. 1972)

PRESIDENTS COUNCIL, DISTRICT 25, et al., Plaintiffs-Appellants,


COMMUNITY SCHOOL BOARD NO. 25 et al., Defendants-Appellees.

No. 494, 71-1958.

United States Court of Appeals, Second Circuit.

March 21, 1972

Argued Feb. 22, 1972.

Alan H. Levine, New York City (New York Civil Liberties Union, New York City, Burt Neuborne, New York City, of counsel), for plaintiffs-appellants.

Harold F. Hay, Forest Hills, N. Y., for defendants-appellees.

O'Leary & O'Leary, Jamaica, N. Y., for intervenor defendant-appellee Antoinette McCarthy.

Irwin Karp, New York City, for The Authors League of America, Inc., amicus curiae.

Before MEDINA, LUMBARD and MULLIGAN, Circuit Judges.

MULLIGAN, Circuit Judge:

This is an appeal from an order of Chief Judge Jacob Mishler, United States District Court, Eastern District of New York, dismissing plaintiffs' civil rights action which was brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343, seeking an injunction and declaratory

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relief against Community School Board No. 25, Queens, New York, Cormac K. Meagher, Community Superintendent of Community School District No. 25, and Antoinette McCarthy, a representative of the Committee for Parents' Rights in Public Education. We affirm.

The plaintiffs-appellants in this case are the Presidents Council, District 25, an organization of presidents and past presidents of various parent and parent-teacher associations in the district, three junior high school students enrolled in schools in the district, seven parents and guardians of minors who attend junior high schools in the district, two teachers, a librarian and the principal of a junior high school, all within the district and under the jurisdiction of the Board. This litigation commenced as a result of the decisions of the duly elected Community School Board (hereinafter Board) of Community School District 25 (hereinafter District), which in executive session on March 31, 1971, voted five to three to remove from all junior high school libraries in the District all copies of Down These Mean Streets, a novel by Piri Thomas. At a public meeting on April 19, 1971 the resolution was again duly adopted by a vote of five to three. Pursuant to the resolution the defendant community superintendent had the book removed. At a public meeting of the Board on June 2, 1971 a resolution was unanimously passed permitting the book to be kept at those schools which previously had the book in their libraries but making it available on a direct loan basis to the parents of children attending these schools.

It is conceded by the parties in this suit that the Board was duly and legally elected and that the resolutions were duly adopted by the Board at the public meetings of April 19 and June 2, 1971. It is further uncontested that the students at the three junior high schools affected (Junior High School Nos. 185, 189 and 218) range in age from 11 to 15 years. The parties do not dispute that in New York City the selection of text-books and other instructional material has been delegated by the Legislature of the State of New York to the Community School Board. 1 It is also clear that there are administrative procedures available to review the decisions of the Community School Boards in New York. 2 Any final administrative action

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is reviewable under Article 78 of the New York Civil Practice Law and Rules. 3


* * *

The book, which has created the controversy and provoked the action of the Board, Down These Mean Streets, is an autobiographical account by Piri Thomas, of a Puerto Rican youth growing up in the East Side Barrio (Spanish Harlem) in New York City. Predictably the scene is depressing, ugly and violent. The argot of the vicinage is replete with four letter and twelve letter obscenities unreported by Tom Swift or even Tom Jones. Acts of criminal violence, sex, normal and perverse, as well as episodes of drug shooting are graphically described. The book has been made available to the court and in a soft cover reprint is available to the public for an investment of $1.25. Presumably the educational value of this work, aside from whatever literary merit it may have, is to acquaint the predominantly white, middle-class junior high school students of Queens County with the bitter realities facing their contemporaries in Manhattan's Spanish Harlem. Some parents objected to the public school library stocking the book, which they claimed would have an adverse moral and psychological effect on 11 to 15 year old children, principally because of the obscenities and explicit sexual interludes. The plaintiffs on the other hand have supplied affidavits from psychologists, teachers, and even children who claim the book is valuable and had no adverse effect on the development of the children of the District. One thirteen...

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