PRESIDENTS COUNCIL, DIST. v. Community Sch. Bd. No. 25

• Decision Date: 21 March 1972
• Docket Number: Docket 71-1958.,No. 494,494
• Citation: 457 F.2d 289
• Parties: PRESIDENTS COUNCIL, DISTRICT 25, et al., Plaintiffs-Appellants, v. COMMUNITY SCHOOL BOARD NO. 25 et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

457 F.2d 289 (1972)

PRESIDENTS COUNCIL, DISTRICT 25, et al., Plaintiffs-Appellants, v. COMMUNITY SCHOOL BOARD NO. 25 et al., Defendants-Appellees.

No. 494, Docket 71-1958.

United States Court of Appeals, Second Circuit.

Argued February 22, 1972.

Decided March 21, 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 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 textbooks 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 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 year old boy solemnly swears and assures us that the book has "literary merits" and is not a "corruptive influence".

Since the Legislature of the State of New York has by law determined that the responsibility for the selection of materials in the public school libraries in New York City is to be vested in the Community School Board (n. 1, supra), and the Commissioner of Education of that State has defined the purposes of the public school library,⁴ and in further view of the procedures for administrative and state court review provided in New York (nn. 2 and 3, supra), we do not consider it appropriate for this court to review either the wisdom or the efficacy of the determinations of the Board. Our function is purely one of constitutional adjudication on the facts and the record before us: has the Board transgressed the first amendment rights of the plaintiff teachers, parents, librarian and children. In its most recent pronouncement on the subject the Supreme Court has stated: "By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values." Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968) (footnote omitted).

After a careful review of the record before us and the precedents we find no impingement upon any basic constitutional values. Since we are dealing not with the collection of a public book store but with the library of a public junior high school, evidently some authorized person or body has to make a determination as to what the library collection will be. It is predictable that no matter what choice of books may be made by whatever segment of academe, some other person or group may well dissent. The ensuing shouts of book burning, witch hunting and violation of academic freedom hardly elevate this intramural strife to first amendment constitutional proportions. If it did, there would be a constant intrusion of the judiciary into the internal affairs of the school. Academic freedom is scarcely fostered by the intrusion of three or even nine federal jurists making curriculum or library choices for the community of scholars. When the court has intervened, the circumstances have been rare and extreme and the issues presented totally distinct from those we have here. See Developments in the Law—Academic Freedom, 81 Harv.L.Rev. 1045, 1051-1054 (1968).

In Epperson v. Arkansas, supra, the court did strike down a state statute which made it unlawful for a teacher in any state supported school to use a text book that teaches that men are descended from a lower order of animals. The court vitiated the statute on the specific ground that "the State may not adopt programs or practices in its public schools or colleges which `aid or oppose' any religion." 393 U.S. at 106, 89 S.Ct. at 271. "The State's undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment." Id. at 107, 89 S.Ct. at 272. Here, patently we have no religious establishment or free exercise question, and neither do we have the banning of the teaching of any theory or doctrine. The problems of the youth in the ghetto, crime, drugs and violence have not been placed off limits by the Board. A book has been removed but the librarian has not been penalized, and the teacher is still free to discuss the Barrio and its problems in the classroom. The action of the Board does not even preclude the teacher from discussing Down These Mean Streets in class or from assigning it for outside reading. In those libraries which have the book, the parent can borrow it and, if he sees fit, can loan it to his child if he wishes to read it.⁵ The intrusion of the Board here upon any first amendment constitutional right of any category of plaintiffs is not only not "sharp" or "direct", it is miniscule.

Appellants' reliance upon Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) is puzzling. In that case the Court upheld the constitutionality of a New York statute (N.Y. Penal Law § 484-h (McKinney's Consol.Laws, c. 40, 1967)) which made it a crime to sell defined obscene material to minors under 17 years of age, whether or not the material would be obscene for adults. In upholding the concept of "variable obscenity" the court found the statute to be a rational legislative determination that the exposure of minors to such materials might be harmful and that the statute did not involve any invasion of constitutionally protected freedoms. Appellants' reading of the case as authority for the proposition that minors have an unqualified first amendment right of access to books, unless they are obscene under the statute, is totally unjustified. It equates the public school library, which has a function as an adjunct to the educational...