Sheck v. Baileyville School Committee, Civ. No. 81-0153-B.

• Court: United States District Courts. 1st Circuit. United States District Court (Maine)
• Writing for the Court: Francis A. Brown, Daniel L. Lacasse, Calais, Maine, for defendants
• Citation: 530 F. Supp. 679
• Parties: Michael SHECK, et al., Plaintiffs, v. BAILEYVILLE SCHOOL COMMITTEE, et al., Defendants.
• Docket Number: Civ. No. 81-0153-B.
• Decision Date: 22 January 1982

530 F. Supp. 679

Michael SHECK, et al., Plaintiffs,
v.
BAILEYVILLE SCHOOL COMMITTEE, et al., Defendants.

Civ. No. 81-0153-B.

United States District Court, D. Maine.

January 22, 1982.

530 F. Supp. 680

Ronald R. Coles, Carletta M. Smith, Machias, Maine, for plaintiffs.

Francis A. Brown, Daniel L. Lacasse, Calais, Maine, for defendants.

MEMORANDUM DECISION

CYR, District Judge.

The present civil rights action challenges the constitutionality of the banning of the

530 F. Supp. 681

book 365 Days from the Woodland High School library by the Baileyville School Committee. The plaintiffs, students and parents of students, seek declaratory and injunctive relief restoring the book to the library shelves. The present ruling is restricted to a determination of the appropriateness of preliminary injunctive relief pending further proceedings and a final decision on the merits

I.

FACTS

365 Days by Ronald J. Glasser the book, a compilation of nonfictional Vietnam War accounts by American combat soldiers, was acquired by the Woodland High School library¹ library in 1971. During the ensuing decade the book was checked out of the library on thirty-two occasions before being banned by the Baileyville School Committee Committee on April 28, 1981. It was last checked out by the 15-year-old daughter of the defendant Mrs. Mary Davenport.

A friend informed Mrs. Davenport that her daughter had obtained the book from the library and that it contained objectionable language.² Mr. and Mrs. Davenport promptly secured the book from their daughter and, on April 23, 1981, showed some of its objectionable language to defendant Thomas Golden, Committee chairperson,³ demanding that the book be removed from the library. The Davenports then complained to the librarian and to defendant Raymond Freve, school superintendent. Freve photocopied Chapter 8 and advised the Davenports that their complaint would be considered at the next Committee meeting on April 28. In advance of that meeting, the Davenports informed Committee member Clifford McPhee of their complaint.

The April 28 meeting agenda, available to Committee members at noon that day, simply noted "Mr. & Mrs. Davenport," but there is no evidence that any of the three remaining Committee members, Susan White, Xavier Romero and Stephen Neale, a defendant, became aware of the subject matter of the "Davenport" agenda item prior to the meeting.

At the April 28 meeting, the Davenports, who had scanned the book for objectionable language, urged that it be banned. Superintendent Freve presented the Committee with a photocopy of the text and title of Chapter 8 in which `the word' and other objectionable language appears more prominently than in other chapters. Freve related excerpts from uniformly favorable book reviews made available by the librarian, who was invited but chose not to appear before the Committee. The Committee briefly discussed the book and the reviews, then voted 5 to 0 to remove 365 Days from the library. None of the principal participants in the process, including the Davenports, the superintendent and the Committee members, read the book before it was banned.

Sometime after the April 28 meeting, plaintiff Michael Sheck, then a Woodland High School senior, having previously read the book and being strongly opposed to its

530 F. Supp. 682

removal, brought a copy of 365 Days to school as a means of protesting and promoting student discussion of the ban. The high school principal informed Sheck that possession of the book on school property would result in its confiscation. The high school principal and the superintendent testified that the Committee ban constituted a prohibition against its possession anywhere on school property, including school buses. No countervailing evidence was offered

At the May 5 Committee meeting, Sheck and a fellow student presented views in opposition to the ban. No Committee action was taken and the ban remained in effect. On May 14, the Woodland High School Student Council formally requested that the Committee return the book to the library. On May 19, a motion to place 365 Days on a restricted shelf, enabling student access absent parental objection, failed to carry, with the three Committee defendants, Golden, McPhee and Neale, opposing the motion. On June 17, the Committee voted 3-2 to place 365 Days on a restricted shelf pending development and adoption of a challenged material policy. The book thereupon became available to students with parental permission, but the record is silent as to whether student access to the school library was possible during the summer recess.

The Committee developed a challenged material policy during the summer. The `Baileyville School Department Challenged Material Policy'⁴ became effective immediately

530 F. Supp. 683

upon its adoption on August 17, 1981 by unanimous Committee vote. The immediately ensuing motion to submit 365 Days to the Baileyville School Department Challenged Material Policy failed by a vote of 2 to 3, with the Committee defendants McPhee, Golden and Neale in opposition. Superintendent Freve advocated defeat of the motion because of his belief that the earlier Committee ban would place too much pressure on the seven-member review committee charged with considering 365 Days under the challenged material policy. Defendant Golden candidly stated that `reconsideration' would serve no purpose, since the Committee had already decided to ban the book

The Committee action of June 17 required that "... the book 365 Days be placed on a restricted shelf — parental permission necessary prior to withdrawal — this above to be in effect until a `Challenged Material Policy' is accepted." The August 17 Committee actions, adopting the Baileyville School Department Challenged Material Policy but declining to apply it to 365 Days, reinstated the total ban adopted April 28, presently in effect.

Three Committee members, the defendant Golden, who supported the ban, and White and Romero, who opposed it, read the book before the August 17 reinstatement of the April 28 ban. The Committee defendants McPhee and Neale, who supported the ban, were aware of some of its objectionable language.

II.

PRELIMINARY LEGAL CONSIDERATIONS

Jurisdiction.

Original jurisdiction of the action⁵ is conferred upon the United States district court by title 28 United States Code, section 1343(3). The complaint sufficiently alleges state action subjecting the student plaintiffs to actual deprivations of civil rights guaranteed by the First and Fourteenth Amendments to the Constitution of the United States. A justiciable controversy, ripe for the exercise of article III judicial power, arising under the Civil Rights Act and the first and fourteenth amendments, has been brought by student plaintiffs with standing.

Venue.

Venue lies in the District of Maine where all defendants reside and the action arose. 28 U.S.C. § 1391(b).

Abstention.

There are no unsettled questions of state law requiring clarification by the courts of the State of Maine, see Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), nor are there pending or contemplated state judicial or administrative proceedings warranting abstention, see Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976).

III.

PRELIMINARY INJUNCTIVE RELIEF

The court is to determine whether plaintiffs are entitled to preliminary injunctive relief pending further proceedings and a determination on the merits. Preliminary injunctive relief may not be granted unless the plaintiffs demonstrate —

(1) that they will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would

530 F. Supp. 684

inflict on the defendants; (3) that plaintiffs have exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction.

Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981), quoting Women's Community Health Center, Inc. v. Cohen, 477 F.Supp. 542, 544 (D.Me.1979) (emphasis added).

(1)

Irreparable Injury

Plaintiffs predicate the pending action on alleged deprivations of their first and fourteenth amendment rights. "It is well established that the loss of first amendment freedoms constitutes irreparable injury." Maceira v. Pagan, 649 F.2d 8, 18 (1st Cir. 1981) plausible "chilling effect" on exercise of right of expression satisfies irreparable-harm requirement. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976) first amendment right of association; Keefe v. Geanakos, 418 F.2d 359, 363 (1st Cir. 1969) "Academic freedom is not preserved by compulsory retirement, even at full pay."

Plaintiffs have made a clear showing that irreparable injury is likely to result before a determination can be made on the merits unless preliminary injunctive relief is granted.

(2)

Counterbalancing the Hardship

Whatever injury preliminary injunctive relief might cause the defendants is inconsiderable in comparison with the severe impact upon plaintiffs absent interim relief. Any denial of plaintiffs' rights pending a determination on the merits would work an irretrievable loss of constitutionally-guaranteed liberties for which no adequate remedy exists at law. The defendants point to no qualitatively-comparable right of their own which would be adversely affected by restoring 365 Days to the library pending a decision on the merits.

(3)

Likelihood of Success on the Merits

The probability of success on the merits "has loomed large in cases before the First Circuit," Auburn News Co., Inc. v. Providence Journal Co., 659 F.2d 273, 277 (1st Cir. 1981).

First Amendment Rights.

Plaintiffs demand redress of their first amendment "rights of freedom of speech and freedom of access."⁶ In...