Pico v. Board of Ed., Island Trees Union Free School Dist. No. 26

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Before MANSFIELD and NEWMAN, Circuit Judges, and SIFTON; SIFTON; MANSFIELD; NEWMAN
• Citation: Pico v. Board of Ed., Island Trees Union Free School Dist. No. 26, 638 F.2d 404 (2nd Cir. 1980)
• Decision Date: 02 October 1980
• Docket Number: No. 619,D,619
• Parties: 7 Media L. Rep. 1360 Steven A. PICO, by his next friend, Frances Pico, Jacqueline Gold, by her next friend, Rona Gold, Russell Rieger, by his next friend, Samuel Rieger, Glenn Yarris, by his next friend, Richard Yarris, and Paul Sochinski, by his next friend, Henry Sochinski, Plaintiffs-Appellants, v. BOARD OF EDUCATION, ISLAND TREES UNION FREE SCHOOL DISTRICT NO. 26, Richard Ahrens, Frank Martin, Christina Fasulo, Patrick Hughes, Richard Melchers, Richard Michaels, and Louis Nessim, Defendants-Appellees. ocket 79-7690.

Page 404

638 F.2d 404

7 Media L. Rep. 1360

Steven A. PICO, by his next friend, Frances Pico, Jacqueline Gold, by her next friend, Rona Gold, Russell Rieger, by his next friend, Samuel Rieger, Glenn Yarris, by his next friend, Richard Yarris, and Paul Sochinski, by his next friend, Henry Sochinski, Plaintiffs-Appellants, v. BOARD OF EDUCATION, ISLAND TREES UNION FREE SCHOOL DISTRICT NO. 26, Richard Ahrens, Frank Martin, Christina Fasulo Patrick Hughes, Richard Melchers, Richard Michaels, and Louis Nessim, Defendants-Appellees.

No. 619, Docket 79-7690.

United States Court of Appeals Second Circuit.

Argued Feb. 6, 1980.

Decided Oct. 2, 1980.

Alan H. Levine, Clark, Wulf, Levine & Peratis, New York City, Alan Azzara, Nassau County Chapter New York Civil Liberties Union, Mineola, N. Y., Arthur Eisenberg, Richard Emery, New York Civil Liberties Union, New York City, and Steven Hyman, Hyman & Miner, New York City, for plaintiffs-appellants.

George W. Lipp, Jr., Lipp & Rubin, Babylon, N. Y., for defendants-appellees.

Cahill, Gordon & Reindel, New York City (Floyd Abrams and Roy L. Regozin, New York City, of counsel), for National Council of Teachers of English, New York State English Council, Nat. Council for the Social Studies, and Speech Communication Ass'n as amici curiae.

Reuben & Proctor, Chicago, Ill. (William D. North, Chicago, Ill., of counsel), for American Library Ass'n and the New York Library Ass'n as amici curiae.

Bredhoff, Gottesman, Cohen & Weinberg, Washington, D. C. (Robert M. Weinberg, Gary L. Sasso and Michael H. Gottesman, Washington, D. C., of counsel), and David Rubin, Washington, D. C., for Nat. Ed. Ass'n as amicus curiae.

Irwin Karp, New York City, for The Authors League of America, Inc. as amicus curiae.

James R. Sandner, New York City (Elizabeth A. Truly, Jeffrey S. Karp, New York City, of counsel), for New York State United Teachers as amicus curiae.

Henry R. Kaufman, New York City (Ira M. Millstein, R. Bruce Rich, Amy L. Katz and Weil, Gotshal & Manges, New York City, of counsel), for Association of American Publishers, Inc., P.E.N. American Center, Writers Guild of America, East, Inc. and Writers in the Public Interest as amici curiae.

Nathan Z. Dershowitz and Edward Labaton, New York City (Victoria Eiger and Maureen Schild, New York City, of counsel), for American Jewish Congress, American Jewish Committee, Anti-Defamation League of B'nai Brith, American Orthopsychiatric Ass'n, Ethical Humanist Society of Long Island, Long Island Council of Churches, National Council of Jewish Women and the Unitarian Universalist Ass'n as amici curiae.

Ivan B. Gluckman, Reston, Va., for National Ass'n for Secondary School Principals as amicus curiae.

Before MANSFIELD and NEWMAN, Circuit Judges, and SIFTON, District Judge. ^*

SIFTON, District Judge.

This appeal arises from a judgment entered in the United States District Court for the Eastern District of New York granting defendants' application for summary judgment and dismissing plaintiffs' class action complaint which sought injunctive and declaratory relief with respect to alleged violations of the first amendment to the United States Constitution and Article 1, Section 8 of the New York State Constitution. ¹ These violations were alleged in the complaint to have arisen as a result of defendant School Board's removal of three works of fiction, four autobiographies, two anthologies, and one work of non-fiction, from the school libraries and curriculum of the Island Trees Union Free School District on Long Island. ² Since the majority of the panel concludes that defendants were not entitled to judgment as a matter of law, we reverse the judgment below. Because the majority is not in agreement as to whether the present record is sufficient to entitle plaintiffs to judgment in their favor, we remand for a trial to develop a plenary record on which that issue may be determined.

FACTUAL BACKGROUND

On September 19, 20 and 21, 1975, three members of the Board of Education of the Island Trees Union Free School District ³ in Nassau County, including defendants Frank Martin, Patrick Hughes and the Board's President, defendant Richard Ahrens, attended a conference in Watkins Glen, New York, sponsored by an organization called People of New York United, an organization described by defendant Ahrens below as "a conservative organization ... composed of parents concerned about education legislation in this State." Attending the conference, besides the three defendants, were among others, according to Ahrens,

"... an attorney from Washington, D.C. who represented the Heritage Foundation, a conservatively oriented organization, George Archibald, a legislative assistant to Rep. John Conlon of Arizona, and other speakers with reputations in education circles who spoke about current topics about which the conservative community was concerned including litigation involving the control of text books and library books in the schools. The speaker on this topic was a Mr. Fike from Kanawa County, West Virginia which had undergone such litigation."

At the conference, according to Ahrens, defendants obtained "lists of books considered objectionable by some persons together with excerpts from them containing the more objectionable material." These "lists" consisted, at least in part, of two sets of crudely typed and reproduced sheets, one relating to a Randolph High School in Randolph, New York, the other, to an inspection in March of 1975 by an organization called Concerned Citizens and Taxpayers for Decent School Books of Baton Rouge, Louisiana of the card catalogue and shelves of the Tara High School library in an unidentified town in that State. The lists included titles, authors and quotations, with page references. Interspersed with the quotations, themselves presented with editorial underlining, were comments of which the following are a sample:

"Title: Soul on Ice by Eldridge Cleaver (Leader of Black panther (sic) and not allowed to live in America.)"

"THIS BOOK WAS RETAINED FOR SENIORS ONLY IN RANDOLPH. THE BOOK IS FULL OF ANTI-AMERICAN MATERIAL AND HATE FOR WHITE WOMEN. WHY WOULD TEACHERS WANT HIGH SCHOOL STUDENTS TO READ THIS???? OUR GROUP IS GOING TO FILE A COMPLAINT AGAINST THIS BOOK ON SEDITIOUS AND DISLOYAL MATTER."

"TITLE: Go Ask Alice by Anonymous. (Suppose to be diary of 15 year old girl)"

"NOTE: This book, after being reviewed by three teachers was retained. Parents, do not be fooled by the movie version of this book. It reads a lot different. If teachers cannot find a better book than this to illustrate drugs are bad then what are we paying them for. They justify their viewpoint because the girl dies in the end. A lot of teachers think this is a great book????????"

"(Handwritten) LEGISLATORS: KEEP MORATORIUM ON SEX ED! PROVIDE CRIMINAL PENALTIES SO D.A.'S CAN PROSECUTE VIOLATORS! PROTECT THE CHILDREN."

"1. Our Sexual Evolution by Helen Colton-This library book displayed in the Tara High School Library appears to be in violation of Act 500 of the Louisiana legislature. It belittles parents, presents no moral judgments, is anti-Christian and contrary to laws of God. It has chapters on Group Marriage, Communes, Abortion, Contraceptives etc. It also promotes women's lib. It costs $5.95 of our tax dollars."

"2. A Reader for Writers-A Critical Anthology of Prose Readings by Jerome W. Archer-This book was used in advanced composition class at Tara High School. It equates Malcolm X, considered by many to be a traitor to this country, with the founding fathers of our country."

The excerpts themselves, in contrast to the more politically oriented comments quoted above, are devoted principally to quotations of vulgar and indecent language referring to sexual and other bodily functions and crude descriptions of sexual behavior, although the manner of excerpting, including the use of underlining, elisions, apparent errors, and interspersed editorial comment leaves no great sense of confidence in the literal accuracy of the quotations. Several books appear on the list without any excerpts at all, but simply with a critical appraisal, e. g., A Reader for Writers. Another is listed without comment next to what purports to be quotations from three of the book's pages. ⁴

Although acquired in September, nothing was done by defendants with these lists ⁵ until November 7, 1975, when defendants Martin and Ahrens attended "Winter School Night" at the District's senior high school. According to Ahrens and Martin, they asked a school custodian to let them into the school library and, by comparing Martin's lists of objectionable books with the library card index files, determined that nine "objectionable" texts were in the school library. The school's principal apparently interrupted their work. According to Ahrens, the two men "told him briefly what we were doing."

Nothing more was done about the matter thereafter until late February 1976 ⁶ when, at a regular meeting of the Board, according to Ahrens,

"... we asked the two high school principals to stay after the meeting which they did. We had a lengthy discussion with them ... during which there was much concern and wringing of hands over the potential of the situation. One principal, after reading the excerpts said 'If this stuff is in the books they don't belong in the school.' We had not at that time checked the junior high school library so we asked that principal to check it (he did so and found two more books that were on Mr. Martin's list)."

As a result of this informal meeting, the Board directed the principals of the schools to remove the books from the library shelves forthwith.

Three days later the Superintendent of the School District, ⁷ Richard Morrow, sent a memorandum to the Board which had as its subject, "List of Books to be Banned." The memorandum stated, inter alia:

"My objection to direct action banning all the books on the list purchased (sic) at Watkins Glen is that we don't know...