Pico v. BOARD OF ED., ISLAND TREES UNION FREE SCH., 77 C 217.

Decision Date02 August 1979
Docket NumberNo. 77 C 217.,77 C 217.
PartiesSteven A. PICO, by his next friend Frances Pico et al., Plaintiffs, v. BOARD OF EDUCATION, ISLAND TREES UNION FREE SCHOOL DISTRICT et al., Defendants.
CourtU.S. District Court — Eastern District of New York

COPYRIGHT MATERIAL OMITTED

New York Civil Liberties Union, New York City, for plaintiffs.

George W. Lipp, Jr., Babylon, N. Y., for defendants.

MEMORANDUM AND ORDER

GEORGE C. PRATT, District Judge:

On January 4, 1977, plaintiffs filed this action for injunctive and declaratory relief in New York State Supreme Court alleging violation of their rights under the federal and state constitutions and 42 U.S.C. § 1983. Basically, the suit challenges defendant board of education's removal of certain books from the school libraries and curriculum of the Island Trees Union Free School District.

On January 29, 1977, defendants filed their petition for removal to this court. Plaintiffs' motion to remand was denied by memorandum and order filed August 16, 1977, because this case, unlike Presidents Council, District 25 v. Community School Board # 25, 457 F.2d 289 (CA2) cert. denied, 409 U.S. 998, 93 S.Ct. 308, 34 L.Ed.2d 260 (1972), presented substantial questions of federal constitutional law. Thereafter, plaintiffs moved for certification of this case as a class action and both sides moved for summary judgment. These are the motions now before the court.

FACTS

Both parties agree to the following facts.1 In September, 1975, the president, vicepresident and another member of the board of education (board) of the Island Trees Union Free School District attended a conference sponsored by a conservatively oriented parents group called Parents of New York United (PONY-U). There, they obtained a collection of excerpts from books which PONY-U had classified as "objectionable."

On November 7, 1975, the president and vice-president of the board searched the card catalogue of the Island Trees High School and found cards for nine of the "objectionable" books.2 The president of the board then asked the principal of the junior high school to check his school's catalogue, which was found to contain cards for one additional "objectionable" book.3 Subsequently, a school official discovered another "objectionable" book4 in the curriculum of a 12th grade literature course; the board had approved its inclusion in 1972. On February 24, 1976, at a "private session" of the board, attended as well by the superintendent of schools and the principals of the junior and senior high schools, the board gave an "unofficial direction" that the objectionable books be removed.

On March 3, 1976, the president of the board issued a memorandum to the superintendent, reiterating "the board's desire that all copies of the library books in question be removed from the libraries to the board's office * * *". These eleven books were immediately removed by the superintendent,5 pending further board action, and delivered to the board's office, where board members could personally review the books.

On March 19, 1976, the board issued a press release, attached to the complaint as Exhibit A. It read:

PRESS RELEASEMarch 19/76
The Board of Education finds it necessary to call this press conference because of distortions, misinformation, and the obvious attempt by the New York Daily News in a cartoon published this morning, to characterize two members of the Board as a pair of shady hoods who surreptitiously sneak into school buildings under cover of darkness to snatch library books.
It comes as no surprise to this Board of Education that it is once again the subject of attack by Teacher Union leaders, headed by Walter Compare. With the election of school board candidates just two months away, the Teachers' Union is once again attempting to discredit the Board and win the seats for two union-backed lackeys.
While at the conference, we learned of books found in schools throughout the country which were anti-American, anti-Christian, anti-Semetic (sic), and just plain filthy. Upon their return, Ahrens & Martin in early November went to the Senior High School to check the card catalog to see if any of these objectionable books were in our library. We discovered nine such books. We neither removed books, nor cards from the card file.
At the next meeting of the Board, the entire Board discussed how to handle this situation, realizing that to make the titles of the books public might cause a sudden run on the library by the students.
The Board decided that the Principals of the Senior and Junior High Schools would be called in and be directed to gather up the books in question and bring them to the entire Board, for review. This order was carried out earlier this month. The Board is presently reviewing the contents of the books.
To date, what we have found is that the books do, in fact, contain material which is offensive to Christians, Jews, Blacks, and Americans in general. In addition, these books contain obscenities, blasphemies, brutality, and perversion beyond description.
This Board of Education wants to make it clear that we in no way are BOOK BANNERS or BOOK BURNERS. While most of us agree that these books have a place on the shelves of the public library, we all agree that these books simply DO NOT belong in school libraries, where they are so easily accessible to children whose minds are still in the formulative stage, and where their presence actually entices children to read and savor them. As U.S. Commissioner of Education, T. H. Bell, has said, "Parents have a right to expect that the schools, in their teaching approaches and their selection of instructional materials, will support the values and standards that their children are taught at home. And if the schools cannot support those values, they must at least avoid deliberate destruction of them."
We who are elected by the community, are the eyes and ears of the parents. It is our duty, our moral obligation, to protect the children in our schools from this moral danger as surely as from physical and medical dangers.
We have some books which have been reviewed, marked, and underlined. However, if they are read in front of a television camera, the FCC would never permit it to be aired. This stuff is too strong for adult viewers, but some of our educators feel it is appropriate for child consumption.
We are sure that when most of our teachers are given the opportunity to review the material, they will side with the Board, and against the Executive Committee of their own union. When most of the parents review these books, we are confident they will back us to the hilt, grateful that we have done our job and remained as they elected us . . . their faithful Watchdogs.
Finally, we have the books here for your inspection. We will gladly make copies of individual pages to (sic) the UN-believers.
BOARD OF EDUCATION Island Trees Union Free School District

March 19, 1976.

On March 30, 1976, the board met and ratified the already accomplished transfer of the "objectionable" books to the office of the board. At the same meeting, the board appointed four Island Trees parents along with four staff members (not including a librarian) to act as a "Book Review Committee" to make recommendations to the board on the educational suitability of the books.

In its first report to the board on April 30, 1976, the committee recommended return of one book6 to the libraries and curriculum subject to parental approval. On July 1, 1976, the committee submitted its final report, recommending that four books7 be "retained" by the school libraries, and that two books8 be "removed". As to the remaining four books, the members of the committee could not agree about two of them,9 recommended that parental approval be required for access to another,10 and took no position on the last11 because not all the members had been able to read it.

On July 28, 1976, the board acted on the committee report, resolving that one book be returned without restriction,12 that one book be returned with students' access conditioned on parental approval,13 and that the remaining nine books, "be removed from elementary and secondary libraries and for use in the curriculum." Explaining the meaning of this last phrase, the president of the board stated in his deposition that these nine books should not be assigned as required, optional, or even suggested reading although the books might still be discussed in class.14

Besides agreeing about the occurrence of the above events, the parties substantially agree about the motivation behind the board's actions. In his affidavit, the president of the board explains:

I am basically a conservative in my general philosophy and feel that the community I represent as a school board member shares that philosophy. It is to this that I attribute my re-election on a number of occasions. I feel that it is my duty to apply my conservative principles to the decision making process in which I am involved as a board member and I have done so with regard to fiscal matters, student discipline, teacher performance, union negotiations, curriculum formation and content and other educational matters.
* * * * * * My objection is to the obscenity and bad taste contained in the books as well as their irrelevance, in my opinion, to the basic curriculum of the district and to the values which I, as a board member and president, feel the community wishes inculcated in its youth. The whole thing has been blown out of proportion. The best way to indicate the basic reasons of the board as a whole for the actions taken is to annex various statements made by the board to the public as these events were taking place. * * * A review of these materials * * * will indicate that the excerpts about which we were concerned (and later the books themselves) contain every form of obscenity and sexual allusion imaginable (sic). Granted one * * * also makes ridiculous disparaging remarks about Christ and
...

To continue reading

Request your trial
9 cases
  • Board of Education, Island Trees Union Free School District No 26 v. Pico
    • United States
    • United States Supreme Court
    • June 25, 1982
    ...moral obligation, to protect the children in our schools from this moral danger as surely as from physical and medical dangers." 474 F.Supp. 387, 390 (EDNY 1979). A short time later, the Board appointed a "Book Review Committee," consisting of four Island Trees parents and four members of t......
  • Zykan v. Warsaw Community School Corp.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 22, 1980
    ...Board of Education, 461 F.2d 566 (2d Cir. 1972), certiorari denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 491; Pico v. Board of Education, 474 F.Supp. 387 (E.D. N.Y.1979); Right to Read Defense Committee of Chelsea v. School Committee of Chelsea, 454 F.Supp. 703 (D.Mass.1978); Mercer v. M......
  • Housing Works, Inc. v. Turner
    • United States
    • U.S. District Court — Southern District of New York
    • November 29, 2001
    ...to the same standards and the Court's analysis applies to both of Housing Works's free speech claims. See Pico v. Board of Education, 474 F.Supp. 387, 394 (E.D.N.Y.1979) ("The Claims to freedom of speech and academic freedom under the New York State Constitution are governed by the same pri......
  • Sheck v. Baileyville School Committee
    • United States
    • U.S. District Court — District of Maine
    • January 22, 1982
    ...to accede to suggestions, see, e.g., Zykan v. Warsaw Community School Corp., 631 F.2d 1300, 1308 (7th Cir. 1980); Pico v. Bd. of Educ., 474 F.Supp. 387, 397 (E.D.N.Y.1979), rev'd, 638 F.2d 404 (2d Cir. 1980), that the banning of a library book, the least obtrusive conventional communication......
  • Request a trial to view additional results
2 books & journal articles
  • Prospective injunctive relief and class settlements.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 39 No. 3, June 2016
    • June 22, 2016
    ...at 24, O'Connor, No. C-13-3826 EMC (N.D. Cal. Sept. 1, 2015), ECF No. 342. (198.) Id. at 25 (internal citations omitted). (199.) 474 F. Supp. 387, 392 (E.D.N.Y. (200.) Gordon, supra note 188, at 28. (201.) In re FedEx Ground Package System, Inc., Emp't Practices Litig., 273 F.R.D. 424 (N.D.......
  • BATTLEGROUNDS FOR BANNED BOOKS: THE FIRST AMENDMENT AND PUBLIC SCHOOL LIBRARIES.
    • United States
    • Notre Dame Law Review Vol. 98 No. 3, March 2023
    • March 1, 2023
    ...(77) See Pico, 457 U.S. at 897 app. (Powell, J., dissenting). (78) Id. at 857, 856 n.3 (plurality opinion) (quoting Pico v. Bd. of Educ, 474 F. Supp. 387,390 (E.D.N.Y. (79) Id. at 857 (alterations in original) (quoting Pico, 474 F. Supp. at 390). (80) See id. at 857-58. (81) Id. at 858. (82......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT