631 F.2d 1300 (7th Cir. 1980), 80-1038, Zykan v. Warsaw Community School Corp.

Docket Nº:80-1038.
Citation:631 F.2d 1300
Party Name:Brooke ZYKAN, by her next friends, Anthony and Jacqueline Zykan, and Blair Zykan, Plaintiffs-Appellants, v. WARSAW COMMUNITY SCHOOL CORPORATION, and Warsaw School Board of Trustees; William I. Chapel, Jerry C. Deeter, Wayne Bouse, Marie C. Stokes, Max M. Anglin, William M. Dalton II, and Ralph E. Coplen; and their successors in office, in their ind
Case Date:August 22, 1980
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1300

631 F.2d 1300 (7th Cir. 1980)

Brooke ZYKAN, by her next friends, Anthony and Jacqueline

Zykan, and Blair Zykan, Plaintiffs-Appellants,



of Trustees; William I. Chapel, Jerry C. Deeter, Wayne

Bouse, Marie C. Stokes, Max M. Anglin, William M. Dalton II,

and Ralph E. Coplen; and their successors in office, in

their individual and official capacities, Defendants-Appellees.

No. 80-1038.

United States Court of Appeals, Seventh Circuit

August 22, 1980

Argued May 7, 1980.

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Joseph P. Bauer, Notre Dame, Ind., for plaintiffs-appellants.

Donald R. Anderson, Bose & Evans, Indianapolis, Ind., for defendants-appellees.

Before SWYGERT and CUMMINGS, Circuit Judges, and NICHOLS, Associate Judge. [*]

CUMMINGS, Circuit Judge.

Plaintiff Brooke Zykan, a Warsaw, Indiana high school student suing by her parents and next friends, Anthony and Jacqueline Zykan, and plaintiff Blair Zykan, a former Warsaw high school student, field this action under Section 1983 of the Civil Rights Act, alleging violations of their First and Fourteenth Amendment rights by defendants Warsaw Community School Corporation, the Warsaw School Board of Trustees, and six individual members of that Board. In their initial complaint filed on March 21, 1979, plaintiffs sought certification as a class to contest various curriculum-related decisions made by the Board and several of its present and former employees, including Charles Bragg, the Superintendent of Schools, William Goshert, former Assistant Superintendent, and C. J. Smith, former principal of Warsaw High School. Plaintiffs filed an amended complaint on April 6, 1979. On June 18, defendants asked that the district court dismiss the amended complaint for failure to state a claim for relief or for lack of subject matter jurisdiction, or, in the alternative, that it abstain pending resolution of certain state law issues or grant summary judgment on their behalf. On December 3, 1979, the district court dismissed the amended complaint for lack of subject matter jurisdiction, and this appeal followed. We agree that the complaint must be dismissed,

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but vacate the district court order and remand with instructions to grant plaintiffs leave to amend.

This case arises from a series of decisions made in 1977 and 1978 by the defendant School Board and its various members and employees primarily regarding the English curriculum at Warsaw High School, the use of certain books in that curriculum, and the rehiring of teachers for English courses. The amended complaint essentially concerns six incidents that, when viewed together, are said by plaintiffs to amount to violations of their First and Fourteenth Amendment rights. 1 The first four of these incidents involve the removal of books from certain courses and the school library. They include:

1) that defendants ordered the removal from the school premises and the destruction of the textbook Values Clarification 2 and did so "without proper consultation with teachers, parents or students and without taking adequate steps to determine the literary and scholastic value of the text * * * " (par. 17);

2) that former principal Smith told English teacher Teresa Burnau to return to the publisher one book 3 she had planned to use in her course "Women in Literature" and not to use three others 4 (pars. 21, 22);

3) that defendants promulgated a policy prohibiting the use of reading materials that " 'might be objectionable' " and that as a consequence of this policy, Smith required a teacher to excise certain portions of Student Critic, a book long in use in the high school 5 (pars. 23-26);

4) that defendants have permanently removed the book Go Ask Alice from the school library (pars. 27-29). 6

Plaintiffs allege that defendants took these actions because " * * * particular words in the books offended their social, political and moral tastes and not because the books, taken as a whole, were lacking in educational value" (par. 32). They also assert that in each case defendants acted in defiance of the "Croft Policy," which, they say, established the regular procedure for handling censorship decisions.

The amended complaint also charges defendants with eliminating seven courses from the high school curriculum "because the teaching methods and/or content of the courses offended their social, political and moral beliefs" (par. 34). Plaintiffs once again allege that defendants took this action without compliance with the Croft Policy. A final set of allegations concerns defendants' decision not to rehire English teacher Teresa Burnau and another teacher, which plaintiffs contend has deprived them "of the opportunity to learn from and associate

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with these capable teachers" and has created an "atmosphere of tension and fear among present teachers * * * resulting in a diminution or loss of academic freedom on the part of all teachers and students in the District" (pars. 35-37). Plaintiffs' factual allegations conclude with the assertions that plaintiff Blair Zykan's "right to know was directly violated by defendants' actions, which capriciously and unreasonably infringed upon his right to read literary works in their entirety," that plaintiff Brooke Zykan suffers directly from defendants' "capricious and arbitrary actions in censoring courses and books" (par. 38), and finally that defendants' actions have had and continue to have "a chilling effect on the free exchange of knowledge" in the Warsaw schools (par. 39).

In addition to requesting class certification to represent all former, present and future students at Warsaw High School, plaintiffs sought, inter alia, declaratory relief adjudging defendants' conduct in violation of the First and Fourteenth Amendments, an injunction ordering the restoration to the curriculum of the discontinued books, and an order directing the reversal of all curriculum changes. They also requested an order restraining defendants from further changing the school curriculum and reading materials "until a reasonable and impartial procedure * * * has been formulated and * * * complied with" and from interfering with "reasonable" selections of course materials by teachers or access to such materials by students. As noted, defendants opposed the complaint with a variety of motions, including one to dismiss the complaint for lack of subject matter jurisdiction.

On December 3, Judge Sharp granted the motion to dismiss on the ground that he lacked jurisdiction over the subject matter. He concluded that the "complaint fail(ed) to allege a violation of either the First Amendment's guarantee of religious freedom or the First Amendment's guarantee of a right to receive a constitutionally protected communication." (R. Item 17 at 3). He found that the precedents of this Circuit have otherwise placed few constitutional constraints on the exercise of discretion by school officials. In particular he stated that:

"the function of school officials is not constitutionally restricted to determining the most efficient method of exposing students to as many facts and opinions as possible; rather, it is legitimate for school officials to develop an opinion about what type of citizens are good citizens, to determine what curriculum and material will best develop good citizens, and to prohibit the use of texts, remove library books, and delete courses from the curriculum as a part of the effort to shape students into good citizens. See Ambach v. Norwick, (441 U.S. 68), 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979). And there is no way for school officials to make the determinations involved except on the basis of personal moral beliefs. To allege that school officials have made decisions regarding classroom texts, library books, and curriculum courses solely on the basis of personal 'social, political, and moral' beliefs is insufficient to allege a violation of constitutionally protected 'academic freedom.' " (R. Item 17 at 4.)

This Case Is Not Moot

Defendants argue in their brief that this case should be dismissed as moot. They note that Indiana law requires local school boards to select new textbooks every five years and that pursuant to this directive, the Warsaw Board adopted in 1978 an entirely new English curriculum in which the course offerings are more traditional and the disputed books have no place. 7 They assert that the factual allegations of the complaint did not challenge the decision to adopt this new curriculum and therefore that the administrative action subsequent to the incidents at issue here has rendered the relief sought by plaintiffs inappropriate.

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The short answer to defendants' argument is that both the facts alleged and relief sought in the complaint easily survive the Board's change in curriculum. For example, plaintiffs have alleged that a book has been improperly removed from the library and not returned and that teachers have not been rehired for improper motives. These actions and others are said to have had a chilling effect on academic freedom and to have caused harm to one plaintiff and to be causing harm to another. Further, the relief sought by plaintiffs plainly reaches beyond the specific incidents alleged, for...

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