Pico v. BOARD OF ED., ISLAND TREES UNION FREE SCH., 77 C 217.
Decision Date | 02 August 1979 |
Docket Number | No. 77 C 217.,77 C 217. |
Parties | Steven A. PICO, by his next friend Frances Pico et al., Plaintiffs, v. BOARD OF EDUCATION, ISLAND TREES UNION FREE SCHOOL DISTRICT et al., Defendants. |
Court | U.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.
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.
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:
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:
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