This appeal is from a judgment entered in the United States District Court for the Eastern District of New York, George C. Pratt, Judge, which granted the motion of defendants-appellees for summary judgment, denied the motion of plaintiffs-appellants for similar relief and for a class action determination, and dismissed the complaint which sought declaratory and injunctive relief on constitutional grounds with respect to the removal by defendant-appellee Board of Education of certain brooks from the school libraries and curriculum of the Island Trees Union Free School District. Reversed and remanded for trial.
MANSFIELD and NEWMAN, Circuit Judges, and SIFTON, District Judge .*fn*
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.*fn1 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.*fn2 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.
On September 19, 20 and 21, 1975, three members of the Board of Education of the Island Trees Union Free School District*fn3 in Nassau County, including defendants Frank Martin, Patrick Hughes and the Board's President, defendant Richard Ahrens, attened 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 underling, 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.*fn4
Although acquired in September, nothing was done by defendants with these lists*fn5 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 Martins'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*fn6 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,*fn7 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 who developed the list, nor the criteria they used. I don't believe we should accept and act on someone else's list, unless we first study the books ourselves.
"... [We] already have a policy... designed expressly to handle such problems. It calls for the Superintendent, upon receiving an objection to a book or books, to appoint a committee to study them and make recommendations. I feel it is a good policy -- and it is Board policy -- and that it should be followed in this instance. Furthermore, I think it can be followed quietly and in such a way as to reduce, perhaps avoid, the public furor which has always attended such issues in the past.
"... I have no doubt (but of course no proof) that such a local committee would end up agreeing about most of the books on the list. The Board's feelings on them are not so different from the staff's and parents' -- after all, that is shown by the fact that the large majority of the books listed are not and apparently never have been recommended and used by the staff.
"... [Unilateral] banning by the Board, without inputs from the staff, would surely create a furious uproar -- not only in the staff, but across the community, Long Island and the state. I don't believe you want such an uproar, and I certainly don't."
The Superintendent further reported that one of the books directed to be removed from the library, Malamud's The Fixer, was being used as part of a senior course in literature, having been "approved as part of that course in January, 1972, by the Board of Education."
Morrow's memorandum of February 27, 1976, was answered by a memorandum of March 3 from defendant Ahrens directing again that "all copies of the library books in question" (emphasis in the original) be removed immediately from the libraries.
Shortly thereafter, as Superintendent Morrow had predicted in his memorandum, the Board's action became known, and newspaper articles concerning the events began to appear in the New York press. Defendants responded to these articles by means of a press conference at which a release was distributed which read in part as follows:
"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."
Referring to the Watkins Glen conference, the press release continued:
"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 Library 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.
"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.
"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."
Also during the month of March, the Board released an issue of its regular Newsletter to the residents of the school District stating, "[the] entire contents of this special newsletter will be devoted to the library book issue" and asking the people of the District to attend the Board meeting of March 30, 1976, where "[you] will have the opportunity to examine the books youselves." The Newsletter, after again attributing the newspaper stories concerning the issue to "lies and misinformation which has been spread by the teachers' union," stated:
"Mr. Compare is fighting to keep books in our schools which are offensive to Christians, Jews, Blacks, and all Americans in general. One such book [apparently referring to Vonnegut's Slaughterhouse Five ] refers to Jesus Christ as a 'man with no connections.' One must ask oneself what motivates this man? ... Why... does Mr. Compare insist that these books remain in the hands of our children."
In this atmosphere the Board held a public meeting on the subject on March 30, 1976. At this meeting Superintendent Morrow again stated his position in a prepared statement that it was "wrong for the Board -- or any other single group -- to act to remove books without prolonged prior consideration of the views of both the parents whose children read these books, and the teachers who use these books to instruct;" that it was "wrong to judge any book on the basis of brief excerpts from it [since many] books -- among them widely acclaimed classics -- contain brief passages which, if taken out of context, would seem to condemn them;" that it was "wrong to take action based on a list prepared by someone outside the Island Trees community;" and that "it was wrong to by-pass the established procedure for reviewing the challenged books." Further, Morrow recommended that, pending review by a committee, "the challenged books be returned to the shelves, with the understanding that every parent has the right and the responsibility to supervise the materials his child reads." Instead, the Board ratified its earlier action removing the books, but directed that a committee of eight, composed of four school staff members and four parents, "read... and make recommendations to the board" concerning "the educational suitability of these books and whether they are in good taste, appropriate and relevant." This latter language was taken from a provision of the union's contract with the Board which provided:
"Accordingly, it is agreed that teachers shall have the right to introduce and explore controversial material, provided only that the material and manner in which it is presented are in good taste, appropriate to grade level, and relevant to course content. Every effort will be made to present all sides of controversial issues."*fn8
Coincidentally, the Board fixed May 26, 1976, as the date for the election of new Board members and directed that nominating petitions be filed by April 26, 1976.
On April 2, 1976, the Superintendent in a memorandum to the Board again urged that, pending review by the committee to be appointed, the books be returned to the library since the reason for their removal had been satisfied. The books were, however, not returned. On April 6, 1976, a book review committee was selected by the Board and the Superintendent. On April 30, 1976, the committee met, having apparently read some of the books.
"After a very comprehensive discussion regarding the book THE FIXER by Bernard Malamud, the vote to return the book to our modern literature curriculum was: 6 YES and 2 NO. It was further recommended that the book would be returned subject to parental approval."*fn9
A second meeting of the committee on May 12, 1976, led to a memorandum from the committee to defendant Ahrens inquiring with respect to the two anthologies, Best Short Stories by Negro Writers and A Reader for Writers ," "whether you object to specific stories or the entire book." There is nothing in the record to indicate whether this inquiry was ever answered and some indication that it was not. At this meeting the committee also voted unanimously that Oliver LaFarge's Laughing Boy be returned to the library and by a vote of 5 to 3 that Slaughterhouse Five be returned to a restricted shelf in the library. At meetings of May 26, June 16, and June 30, 1976, the committee voted to return Black Boy, Go Ask Alice, and Best Short Stories by Negro Writers to the shelves. It voted not to restore The Naked Ape, Down These Mean Streets, and Soul on Ice . The committee reported itself unable to make a recommendation with regard to A Reader for Writers since "[this] book seems to be unavailable in this area."
Following the committee's report to the Board on July 1, 1976, the Board met again publicly on July 28, 1976, and took up what the minutes describe as the "Book Issue," voting separately on each of the books covered by the committee's recommendations. As a result of these separate votes, only Laughing Boy and Black Boy were returned to the library shelves generally. The other books at issue were directed to be "removed [sic] from elementary and secondary libraries, and for use in the curriculum."
At the same time as the book committee was considering each book, two of the incumbent members of the Board of Education ran again for office. According to defendant Ahrens, the "book banning issue was the major one in the campaign. Nevertheless (or more ...