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Bicknell v. Vergennes Union High School Board of Directors

decided: October 2, 1980.

DAVID BICKNELL, BY HIS GUARDIAN DONALD BICKNELL, ET AL., PLAINTIFFS-APPELLANTS,
v.
VERGENNES UNION HIGH SCHOOL BOARD OF DIRECTORS, ET AL., DEFENDANTS-APPELLEES.



Appeal from a decision of the United States District Court for the District of Vermont (Albert W. Coffrin, Judge) dismissing a complaint that a school violated the First Amendment rights of students in removing two books from the school library because of their vulgar language, and that it violated the due process rights of students and the school librarian in changing its policies concerning book removal.

Before Mansfield and Newman, Circuit Judges, and Sifton,*fn* District Judge.

Author: Newman

This case, like Pico v. Board of Education, 638 F.2d 404 (2d Cir. 1980), decided this day, involves a school board's decision to remove books from a school library. In Pico a divided panel concluded that the allegations of the complaint and the supporting affidavits presented a triable issue as to whether the book removal had created a sufficient risk of suppressing ideas within the school community to constitute a First Amendment violation. In this case the allegations are insufficient to warrant a trial, and we therefore affirm the decision of the District Court for the District of Vermont (Albert W. Coffrin, Judge), dismissing the complaint for failure to state a claim on which relief can be granted.

The complaint alleged the following facts. In response to an ongoing controversy concerning some of the books at the Vergennes Union High School library, the High School's Board of Directors established a written policy governing the selection and removal of books. That document, entitled the "School Library Bill of Rights for School Library Media Center Program," specifies the rights and responsibilities of the Board, the professional staff, the parents, and the students in this area. The "rights" of the Board are: "To adopt policy and procedure, consistent with statute and regulation-that they feel is in the best interests of students, parents, teachers and community." The "rights" of the professional staff are: "To freely select, in accordance with Board policy, organize and administer the media collection to best serve teachers and students." The "rights" of the students are: "To freely exercise the right to read and to free access to library materials." After specifying some procedures and criteria for the selection of materials, the document then lists some general "Board Guidelines for the Selection of Library Materials." These include a procedure allowing parents to submit requests for reconsideration of a particular book. Upon receipt of such a request, the librarian is to meet with the parents to resolve the issue; any matters that remain unresolved are to be settled by a majority vote of the Board.

Some months after this procedure was adopted, two complaints from parents reached the Board. The books involved were Dog Day Afternoon by Patrick Mann and The Wanderers by Richard Price; in both cases, the objection of the parents was to the vulgarity and indecency of language in the books. The Board voted to remove The Wanderers from the library and to place Dog Day Afternoon on a restricted shelf.*fn1 The complaint acknowledges that the Board acted in both instances because of the books' vulgar and indecent language. The Board also voted to prohibit the school librarian from purchasing any additional major works of fiction, and subsequently voted that any book purchases other than those in the category "Dorothy Canfield Fisher, science fiction and high interest-low vocabulary" must be reviewed by the school administration in consultation with the Board. Following these actions, a group of students, their parents, library employees, and an unincorporated association known as the Right to Read Defense Fund brought suit to enjoin removal of the books and alteration of the school's library policy.

Appellants appear to present two theories on which the alleged facts might establish a violation of constitutionally protected rights. First, they claim that their First Amendment rights have been violated, primarily because the Board's action was motivated solely by the "personal tastes and values" of the Board members.*fn2 (Appellants' Br. 7). Second, they claim that the Board's action has denied them due process of law because the Board has violated its own internal policies and procedures.

In Pico a majority of the Court recognized a First Amendment right of members of a school community to be free of the inhibiting effects upon free expression that result when the circumstances surrounding the removal of books create a risk of suppressing ideas. In this case there are no allegations of any facts to indicate that such a risk was created by the circumstances under which the two books were removed. The attention of the Board was first directed to the two books by complaint about their vulgar and indecent language. There is no suggestion that the books were complained about or removed because of their ideas, nor that the Board members acted because of political motivation. On the contrary, appellants acknowledge that the books were removed because of vulgarity and obscenity.*fn3 Nor is there any claim that the passages found objectionable were beyond the allowable scope accorded school authorities to regulate vulgarity and explicit sexual content. See Thomas v. Board of Education, 607 F.2d 1043, 1053 (2d Cir. 1979) (Newman, J., concurring); Frison v. Franklin County Board of Education, 596 F.2d 1192 (4th Cir. 1979); Brubaker v. Board of Education, 502 F.2d 973 (7th Cir. 1974), cert. denied, 421 U.S. 965, 95 S. Ct. 1953, 44 L. Ed. 2d 451 (1975).

Appellants do not dispute that the Board has the power to remove these two books because of their language. Their point is that the decision to remove is unlawful when the determination of whether the books are vulgar or indecent is made solely on the basis of Board members' personal tastes and values. But so long as the materials removed are permissibly considered to be vulgar or indecent, it is no cause for legal complaint that the Board members applied their own standards of taste about vulgarity.*fn4

Appellants' due process theory is also without merit. Whatever deprivation of rights can result from the removal of books from a school library, it is not the sort of deprivation that entitles a student or librarian to a hearing before that removal takes place. The nature of the deprivation that triggers due process protection has been a subject of much debate. See Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976); Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); L. Tribe, American Constitutional Law 514-32 (1978). It is generally agreed, however, that the deprivation must involve some particularized and personal interest on the part of the person asserting the right. The right recognized in Pico is not of that nature; on proper facts, it may be vindicated in a court challenge, but does not assure an opportunity to contest the removal of books before such action is taken.

The school librarian has presented a more particularized claim, but she has not alleged that the Board has taken any adverse action of the sort that would require due process protection prior to that action's being taken. The Board did not dismiss her, or reprimand her in any official way; it merely removed certain functions from her job assignment. In general, an employee of a government agency has no constitutionally protected interest in the particular duties of a job assignment.*fn5 Finally, to the extent the appellants are alleging that the procedures of the library policy were not followed, it is clear that state procedural requirements do not create interests entitled to due process protection.*fn6 Boothe v. Hammock, 605 F.2d 661, 664 (2d Cir. 1979); Frison v. Franklin County Board of Education, supra, 596 F.2d at 1194; Cofone v. Manson, 594 F.2d 934, 938-39 (2d Cir. 1979).

The dismissal of the complaint is affirmed.

MANSFIELD, Circuit Judge, concurring in the result:

I concur in the result. For the reasons stated in my dissent in Pico v. Board of Education, 638 F.2d 404 (2d Cir. 1980), I disagree with Judge Newman's conclusion that there is a legally significant distinction between this case and Pico. I would dismiss the ...


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