Minarcini v. Strongsville City School Dist.

• Citation: 541 F.2d 577
• Decision Date: 30 August 1976
• Docket Number: Nos. 75-1467,s. 75-1467
• Parties: Susan Lee MINARCINI et al., Plaintiffs-Appellants, v. STRONGSVILLE CITY SCHOOL DISTRICT et al., Defendants-Appellees, and Michael Bingham et al., Applicants for Intervention-Appellees. to 75-1469.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 577

541 F.2d 577

Susan Lee MINARCINI et al., Plaintiffs-Appellants, v. STRONGSVILLE CITY SCHOOL DISTRICT et al., Defendants-Appellees, and Michael Bingham et al., Applicants for Intervention-Appellees.

Nos. 75-1467 to 75-1469.

United States Court of Appeals, Sixth Circuit.

Argued March 29, 1976.

Decided Aug. 30, 1976.

Michael T. Honohan, Benesch, Friedlander, Mendleson & Coplan, Cleveland, Ohio, Howard R. Besser, Shaker Heights, Ohio, for appellants in No. 75-1467.

Arthur L. Cain, Cain & Lobo, Cleveland, Ohio, for appellants in Nos. 75-1468, 75-1469.

Arthur L. Cain, Cain & Lobo, Cleveland, Ohio, John C. Burkholder, Columbus, Ohio, Kenneth G. Preston, Berea, Ohio, for appellees in No. 75-1467.

Michael T. Honohan, Cleveland, Ohio, Howard Besser, Shaker Heights, Ohio, Michael E. Geltner, Washington, D. C., Stanley K. Laughlin, American Civil Liberties Union, Columbus, Ohio, Benjamin B. Sheerer, Cleveland, Ohio, for appellees in No. 75-1468.

Michael T. Honohan, Cleveland, Ohio, Howard Besser, Shaker Heights, Ohio, Barbara Kaye Besser, Shaker Heights, Ohio, for appellees in No. 75-1469.

Before EDWARDS, PECK and MILLER, ^* Circuit Judges.

EDWARDS, Circuit Judge.

This record presents a vivid story of heated community debate over what sort of books should be 1) selected as high school text books, 2) purchased for a high school library, 3) removed from a high school library, or 4) forbidden to be taught or assigned in a high school classroom. The setting of this controversy is the high school in Strongsville, Ohio, a suburb of Cleveland.

This case originated as a class action brought under 42 U.S.C. § 1983 (1970) and 28 U.S.C. § 1343(3) (1970) against the Strongsville City School District, the members of the Board of Education and the Superintendent of the school district by five public high school students through their parents, as next friends. The suit claimed violation of First and Fourteenth Amendment rights in that the school board, disregarding the recommendation of the faculty, refused to approve Joseph Heller's Catch 22 and Kurt Vonnegut's God Bless You, Mr. Rosewater as texts or library books, ordered Vonnegut's Cat's Cradle and Heller's Catch 22 to be removed from the library, and issued resolutions which served to prohibit teacher and student discussion of these books in class or their use as supplemental reading.

The original complaint produced a counterclaim for "malicious prosecution" by one of the defendant school board members, Arthur L. Cain, and a motion to intervene as defendants filed on behalf of still other students in the high school by their parents, indicating that plaintiffs' requested relief was entirely antagonistic to the wishes and interests of the intervenors. The District Judge denied motions for summary judgment by defendants and intervenors, dismissed the counterclaims of defendant Cain, tried the case on the original complaint, and dismissed it after entering findings of fact and conclusions of law holding that the defendants had not violated any First or Fourteenth Amendment rights of the plaintiffs.

On review of the briefs and records filed in this court, and the oral arguments heard before us, we affirm the dismissal of the counterclaims of defendant Arthur L. Cain for the reasons set forth in the District Judge's order of March 22, 1974. Likewise for the reasons set forth on this point in the District Judge's Memorandum Opinion and Order filed August 9, 1974, we affirm his determination of the class represented by plaintiffs pursuant to Rule 23 of the Federal Rules of Civil Procedure thereby rejecting the appellate arguments of the intervenors.

Turning now to the principal issues in this case, we shall discuss them separately.

I THE BOARD'S DECISION NOT TO APPROVE OR PURCHASE CERTAIN TEXTS

It appears clear to this court that the State of Ohio has specifically committed the duty of selecting and purchasing textbooks to local boards of education. O.R.C. § 3329.07 (1975) provides as follows:

§ 3329.07 Determination of textbooks required; order; payment; transportation charges. (GC § 4854-6)

The board of education of each city, exempted village, and local school district shall cause it to be ascertained and at a regular meeting determine which, and the number of each of the textbooks the schools under its charge require. The clerk at once shall order the books agreed upon from the publisher, who on receipt of such order must ship them to the clerk without delay. He forthwith shall examine the books, and, if found right and in accordance with the order, remit the amount to the publisher. The board must pay for the books so purchased and in addition all charges for the transportation of the books out of the general fund of said district or out of such other funds as it may have available for such purchase of textbooks. If such board at any time can secure from the publishers books at less than such maximum price, they shall do so, and without unnecessary delay may make effort to secure such lower price before adopting any particular textbooks.

Clearly, discretion as to the selection of textbooks must be lodged somewhere and we can find no federal constitutional prohibition which prevents its being lodged in school board officials who are elected representatives of the people. To the extent that this suit concerns a question as to whether the school faculty may make its professional choices of textbooks prevail over the considered decision of the Board of Nor do we think that the Board's decisions in selecting texts were arbitrary and capricious or offended procedural due process. There was a Board committee appointed to make recommendations on textbooks. It met with the faculty committee and with a citizens' committee to discuss the books recommended by the faculty before the Board received its committee's recommendations and acted thereon. As to the appellants' complaints of arbitrary and capricious action, we again affirm the District Court.

Education empowered by state law to make such decisions, we affirm the decision of the District Judge in dismissing that portion of plaintiffs' complaint. In short, we find no federal constitutional violation in this Board's exercise of curriculum and textbook control as empowered by the Ohio statute.

In this determination and in those which follow, we keep in mind the admonitions of the United States Supreme Court in the leading case of Epperson v. Arkansas, 393 U.S. 97, 104-05, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968):

Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. Our courts, however, have not failed to apply the First Amendment's mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry and of belief. 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. On the other hand, "(t)he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools," Shelton v. Tucker, 364 U.S. 479, 487 (81 S.Ct. 247, 251, 5 L.Ed.2d 231) (1960). As this Court said in Keyishian v. Board of Regents, the First Amendment "does not tolerate laws that cast a pall of orthodoxy over the classroom." 385 U.S. 589, 603 (87 S.Ct. 675, 683, 17 L.Ed.2d 629) (1967). (Footnote omitted.)

II THE REMOVAL OF CERTAIN BOOKS FROM THE SCHOOL LIBRARY

The record discloses that at a special meeting of the Strongsville Board of Education on August 19, 1972, according to the official minutes, the following motion was made and adopted:

Dr. Cain moved, seconded by Mr. Henzey, that the textbook entitled Cat's Cradle not be used any longer as a text or in the library in the Strongsville Schools.

Discussion.

Dr. Cain moved the question.

Mr. Henzey requested the Clerk to call for the vote.

Roll call: Ayes: Dr. Cain, Mr. Henzey, Mrs. Wong

Nays: Mr. Woollett

Motion carried.

Similarly at a meeting of the Strongsville Board of Education on August 31, 1972, the following action was recorded in the minutes:

Mrs. Wong moved, seconded by Dr. Cain, that the textbook Catch 22 be removed from the Library in the Strongsville Schools.

Roll call: Ayes: Mr. Ramsey, Mrs. Wong, Dr. Cain

Nays: Mr. Woollett

Motion carried.

In his opinion the District Judge held that "the novels Catch 22 by Joseph Heller, God Bless You, Mr. Rosewater and Cat's Cradle by Kurt Vonnegut, Jr., are not on trial in this proceeding." Further he stated, "Literary value of the three novels (has) been conceded by the parties . . ." and that "obscenity as defined in the Supreme Court's pronouncements is eliminated as an issue herein by agreement of counsel." These holdings do not appear to be disputed on this appeal, and we accept them.

The District Judge, in dismissing the complaint concerning removal from the library The administration of any library, whether it be a university or particularly a public junior high school, involves a constant process of selection and winnowing based not only on educational needs but financial and architectural realities. To suggest that the shelving or unshelving of books presents a constitutional issue, particularly where there is no showing of a curtailment of freedom of speech or thought, is a proposition we cannot accept. Id. at 293. (Emphasis added.) (Footnote omitted.)

of Heller's Catch 22 and Vonnegut's Cat's Cradle, relied strongly upon a Second Circuit opinion in Presidents Council, District 25 v. Community School Board No. 25, 457 F.2d 289 (2nd Cir.), cert. denied, 409 U.S. 998, 93 S.Ct. 308, 34 L.Ed.2d 260 (1972). In that case, after noting, as we have above, that some authorized body has to make a determination as to the choice of books...