The opinion of the court was delivered by: PRATT
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.
In September, 1975, the president, vice-president 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.
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.
Subsequently, a school official discovered another "objectionable" book
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,
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:
PRESS RELEASE March 19/76
The Board of Education finds it necessary to call this press conference because of distortions, misinformation, and the obvious attempt by the New York Daily News in a cartoon published this morning, to characterize two members of the Board as a pair of shady hoods who surreptitiously sneak into school buildings under cover of darkness to snatch library books.
It comes as no surprise to this Board of Education that it is once again the subject of attack by Teacher Union leaders, headed by Walter Compare. With the election of school board candidates just two months away, the Teachers' Union is once again attempting to discredit the Board and win the seats for two union-backed lackeys.
While at the conference, we learned of books found in schools throughout the country which were anti-American, anti-Christian, anti-Semetic (sic), and just plain filthy. Upon their return, Ahrens & Martin in early November went to the Senior High School to check the card catalog to see if any of these objectionable books were in our library. We discovered nine such books. We neither removed books, nor cards from the card file.
At the next meeting of the Board, the entire Board discussed how to handle this situation, realizing that to make the titles of the books public might cause a sudden run on the library by the students.
The Board decided that the Principals of the Senior and Junior High Schools would be called in and be directed to gather up the books in question and bring them to the entire Board, for review. This order was carried out earlier this month. The Board is presently reviewing the contents of the books.
To date, what we have found is that the books do, in fact, contain material which is offensive to Christians, Jews, Blacks, and Americans in general. In addition, these books contain obscenities, blasphemies, brutality, and perversion beyond description.
This Board of Education wants to make it clear that we in no way are BOOK BANNERS or BOOK BURNERS. While most of us agree that these books have a place on the shelves of the public library, we all agree that these books simply DO NOT belong in school libraries, where they are so easily accessible to children whose minds are still in the formulative stage, and where their presence actually entices children to read and savor them. As U.S. Commissioner of Education, T. H. Bell, has said, "Parents have a right to expect that the schools, in their teaching approaches and their selection of instructional materials, will support the values and standards that their children are taught at home. And if the schools cannot support those values, they must at least avoid deliberate destruction of them."
We who are elected by the community, are the eyes and ears of the parents. It is our duty, our moral obligation, to protect the children in our schools from this moral danger as surely as from physical and medical dangers.
We have some books which have been reviewed, marked, and underlined. However, if they are read in front of a television camera, the FCC would never permit it to be aired. This stuff is too strong for adult viewers, but some of our educators feel it is appropriate for child consumption.
We are sure that when most of our teachers are given the opportunity to review the material, they will side with the Board, and against the Executive Committee of their own union. When most of the parents review these books, we are confident they will back us to the hilt, grateful that we have done our job and remained as they elected us . . . their faithful Watchdogs.
Finally, we have the books here for your inspection. We will gladly make copies of individual pages to (sic) the UNbelievers.
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 ...