United States District Court, D. Maine.January 22, 1982530 F.Supp. 6792 Ed. Law Rep. 770 (Approx. 18 pages)
530 F.Supp. 679
United States District Court, D. Maine.
Michael SHECK, et al., Plaintiffs,
v.
BAILEYVILLE SCHOOL COMMITTEE, et al., Defendants.
Civ. No. 81-0153-B.
Jan. 22, 1982.
Attorneys and Law Firms
*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 *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 *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 *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. s 1391(b).
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 *684 inflict on the defendant(s); (3) that plaintiff(s) (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.
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.
More than a decade ago the Supreme Court handed down its landmark decision in Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), recognizing that secondary school students “may not be regarded as closed-circuit recipients of only that which the State chooses to communicate.” Id. at 511, 89 S.Ct. at 739. The Court struck down a regulation prohibiting secondary students from wearing black armbands in school as a form of silent protest against the Vietnam War, on the ground that the regulation encroached impermissibly upon the students' first amendment right of free expression absent a showing that the regulated conduct would materially disrupt classwork or substantially intrude upon the privacy of others. Id. at 513, 89 S.Ct. at 740. The first amendment right of secondary students to be free from governmental restrictions upon nondisruptive, nonintrusive, silent expression in public schools was sustained by the Court in Tinker notwithstanding full awareness of the “comprehensive authority” traditionally accorded local officials in the governance of public schools. Id. at 507, 89 S.Ct. at 736. See id. at 515-26, 89 S.Ct. at 741-46 (Black, J., dissenting).
It stands to reason that the state may have a greater responsibility to protect youth from obscenity than from materials merely deemed objectionable on vocabular grounds. Yet the state may not impede individual expression even on obscenity grounds except in accordance with judicially-supervised standards requiring a showing that the challenged expression, taken as a whole, lacks “serious literary, artistic, political, or scientific value” and “appeal(s) to the prurient interest in sex,” Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973) (adult obscenity); cf. Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) (variable obscenity rule permits less stringent standards for materials directed at minors); Keefe v. Geanakos, 418 F.2d 359, 362 (1st Cir. 1969) (“What is to be said or read to students is not to be determined by obscenity standards for adult consumption. At the same time, the issue must be one of degree.”) How anomalous and dangerous then to presume that state action banning an entire book, where the social value of its content is roundly praised and stands unchallenged by the state, does not directly and sharply implicate first amendment rights because the ban was not intended to suppress ideas.
The social value of the conceptual and emotive content of censored expression is not to be sacrificed to arbitrary official standards of vocabular taste without constitutional recourse. See Cohen v. California, 403 U.S. 15, 26, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971) (State may not “seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”) As long as words convey ideas, federal courts must remain on *688 first-amendment alert in book-banning cases, even those ostensibly based strictly on vocabular considerations. A less vigilant rule would leave the care of the flock to the fox that is only after their feathers.
The parties have given insufficient consideration to the derivative power of local *689 school authorities, on parental request, to restrict the vocabular form which the communication of information and ideas may take in the extracurricular environment of the school library. The state may determine that parents in their role as the primary guardians of their children “are entitled to the support of laws designed to aid discharge of that responsibility.” Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195 (1968).11 The state may see “fit to insure (that) a particularly sensitive subject be left to the wisdom of parents.” Mercer v. Michigan State Bd. of Educ., 379 F.Supp. 580, 586 (E.D.Mich.1974) (three-judge district court), aff'd. mem., 419 U.S. 1081, 95 S.Ct. 673, 42 L.Ed.2d 678 (1974) (upholding statute prohibiting birth control instruction in public schools, but permitting local school option to offer elective course in sex education.) The court would be loathe on the present record to rule out an appropriate parental role in prescribing standards of taste in the reading materials to which one's own children may be exposed in the extracurricular environment of the school library.12 But cf. Keefe v. Geanakos, 418 F.2d 359, 361-63 (1st Cir. 1969) (reversing denial of preliminary injunction to tenured teacher threatened with dismissal for use of ‘the word’ in classroom).
The information and ideas in books placed in a school library by proper authority are protected speech and the first amendment right of students to receive that information and those ideas is entitled to constitutional protection.13 A book may not be banned from a public school library in disregard of the requirements of the fourteenth amendment.
The Supreme Court has held that there must be adequate procedures by which those affected by state action inhibiting the availability of reading material may safeguard *691 their first amendment rights. See, e.g., Bantam Books v. Sullivan, 372 U.S. 58, 59, 66, 83 S.Ct. 631, 633, 637, 9 L.Ed.2d 584 (1963) (practices of state commission charged with educating “the public concerning any book ... containing obscene, indecent or impure language...” held unconstitutional); see also Loewen v. Turnipseed, 488 F.Supp. 1138 (N.D.Miss.1980) (students and parents must be provided means of vindicating first amendment rights denied by state-created textbook approval committee). Another court has required a school board to act “with full information, with reason and deliberation, and with the full benefit of the views of supervisors, principals, and others familiar with the curriculum and teaching techniques in the schools...” in deciding whether to dismiss a teacher for discussing controversial issues in the classroom. Sterzing v. Fort Bend Indep. School Dist., 376 F.Supp. 657, 661 (S.D.Tex.1972). Nothing that has as yet been brought to the attention of the court would warrant relaxation of these procedural standards in library book-removal cases.15
The legitimacy of the Committee action in this case may ultimately depend in part upon whether it could rationally conclude that exposure to 365 Days might be harmful to students.16 Cf. Ginsberg v. New York, 390 U.S. 629, 641, 88 S.Ct. 1274, 1281, 20 L.Ed.2d 195 (1968). The Committee rationale was neither articulated nor memorialized. The record discloses no finding that harm might result to students exposed to the coarse language in 365 Days. It may be considered implicit in the Committee vote that three of its members found the language “objectionable,” but it does not appear that the ban was predicated on a Committee determination that exposure might be harmful to students. Two Committee members testified that certain words in 365 Days were considered inappropriate for use by or to students, but no evidence has been presented that even these Committee members believed that harm might result to all students exposed to such language. Although a rational demonstration that harm might result to some students may be possible in these circumstances, by reason of their tender age or lack of sophistication or maturity, it is not an acceptable assumption that all students, regardless of their age or maturity, might be harmed by exposure to such language. Cf. Mailloux v. Kiley, 448 F.2d 1242-43 (1st Cir. 1971) (Restrictions on student access to “objectionable” language must be predicated, inter alia, on “the age and sophistication of the students....”)
The identification of criteria considered by the Committee in determining to ban 365 Days is complicated by the utter absence *692 of procedural ground rules17 or minutes memorializing the Committee rationale. Until the adoption of the Baileyville School Department Challenged Material Policy, there were no prescribed policies, guidelines or criteria for the consideration of challenged materials by teachers, administrators, parents, students, or the Committee. The Committee appears to have considered the challenge to 365 Days on the basis of the subjective standards of its individual members.
There is no direct evidence that 365 Days was banned because of its conceptual or emotive content.18 There is no suggestion that the Committee acted on obscenity grounds. The direct evidence suggests instead that 365 Days was banned because three Committee members considered some of its language, although not obscene, inappropriate for use in a library book available to students.19
The criteria to be considered in advance of state action restricting student access to “objectionable” language include “the age and sophistication of the students, the closeness of the relation between the specific technique used and some concededly valid educational objective, and the content and manner of presentation.” Mailloux v. Kiley, 448 F.2d 1242-43 (1st Cir. 1971).20 There is no evidence that the Committee has accorded appropriate consideration to these criteria. The ban was imposed without regard to the age and sophistication of students. It is difficult to understand how at least two members of the Committee, who have not read the book, could have given fair consideration to its content.
There is a strong likelihood that the Committee ban is unconstitutional by reason of its overbreadth. In nearly every respect the ban appears unnecessarily broad, lacking in the required “narrow specificity,” and fashioned without the use of “sensitive tools.” See Pico v. Bd. of Educ., 638 F.2d 404, 417 (2d Cir. 1980) (Sifton, J. plurality opinion), cert. granted, —- U.S. ——, 102 S.Ct. 385, 70 L.Ed.2d 205, citing Keyishian v. Bd. of Regents, 385 U.S. at 603-04, 87 S.Ct. at 683-84. The ban cannot be considered as “minimally intrusive” an infringement of first amendment rights as could have been devised. See id.; United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). The entire book has been banned, not only its “objectionable” language. The ban applies to adults as well as students and to mature as well as immature students, regardless of their age or sophistication. The ban prohibits peaceable possession of private copies of *693 the book anywhere on school property, including buses.21
IV.
Public Interest
The final prerequisite to preliminary injunctive relief implicates the public interest. See Yakus v. United States, 321 U.S. 414, 440-41, 64 S.Ct. 660, 674-75, 88 L.Ed. 834 (1944). The public interest carries considerable weight in these matters. Id. The court must weigh any hindrance or furtherance of the public interest likely to result from interim injunctive relief. Id.
The special sensitivity with which the courts must approach their responsibility for assuring compliance by local authorities with constitutional standards in the governance of public schools leaves little reason to doubt that the public interest is significantly implicated in this case. The United States Supreme Court put it this way in Epperson v. Arkansas, 393 U.S. 97, 104-05, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968):
Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. Our courts, however, have not failed to apply the First Amendment's mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry and of belief. By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values. On the other hand, ‘(t)he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools,’ Shelton v. Tucker, 364 U.S. 479, 487 (81 S.Ct. 247, 251, 5 L.Ed.2d 231) (1960). As this Court said in Keyishian v. Board of Regents, the First Amendment ‘does not tolerate laws that cast a pall of orthodoxy over the classroom.’ 385 U.S. 589, 603 (87 S.Ct. 675, 683, 17 L.Ed.2d 629) (1967). (Footnote omitted.)
The court cannot escape the recognition that courts may not entirely avert interposition in local school administration without abdicating their “role of final arbiter of the validity of all laws and protector of the people, young and old, from the governmental exercise of unconstitutional power,” Breen v. Kahl, 419 F.2d 1034, 1038 (7th Cir. 1969). Yet, in the opinion of this court the preliminary injunctive relief interposed in this case represents the minimum required to enable performance of its constitutional function. The important principles of federalism, soundly approached, do not require that federal courts cede their constitutional role to local school boards.
The interim injunctive relief granted here well serves the public interest in several important respects. It minimizes significant intrusion upon any of the important public policies competing for preeminence in the present controversy. It prevents any irreparable loss of important individual liberties during the interim before the parties can be fully heard on the merits. Traditional parental prerogatives in rearing their own children are accommodated with virtually no significant imposition upon majoritarian rights and interests.
The Woodland High School library serves both junior high school and high school students. Elementary school students and Baileyville townspeople may, but seldom do, use the library.
The book contains coarse language consisting principally of expletives devoid of prurient connotation. ‘The word,’ an Anglo Saxon “f” word, immediately became the focal concern in the dirty-word debate over the appropriateness of retaining the book in the school library. A number of “s,” “p,” and “b” words, as counsel have referred to them, as well as profane uses of “Jesus Christ” and “God,” were likewise cited as objectionable.
The five-member Committee is an administrative arm of the Town of Baileyville which is responsible for the operation of Woodland High School pursuant to 20 M.R.S.A. s 851. The Committee is the superintending school committee required by 20 M.R.S.A. s 471 in each municipality not included in a school administrative district. The Committee is elected at annual town meetings and is responsible for the management of town schools, the provision of “school books,” and the custody and care of all school property. See 20 M.R.S.A. ss 471, 473(1), 856 & 857.
Baileyville School Department Challenged Material Policy.
I. A review committee of at least seven members, consisting of
(1) Administrator
(2) Student
(2) Lay person
(2) Staff members
shall be appointed each year by the principal, subject to the approval of the superintendent and the school committee. It shall be the duty of this committee to review any book which has its appropriateness challenged and to complete the review within fifteen working days. No selected materials whose appropriateness is challenged shall be removed from the school except upon the written recommendation of this committee with the concurrance (sic) of the principal and superintendent, or by the school committee when a recommendation of a review committee is received. Access to questioned materials can be denied the student, if the parent desires so.
1. All complaints to staff members regarding any book shall be reported to the building principal involved, whether the complaint is by telephone, letter, or in personal conversation.
2. The building principal shall contact the complainant to discuss the complaint and attempt to resolve it informally.
3. If the complaint is not resolved informally, the complainant shall be supplied with a standard printed form which shall be completed and returned before consideration is given to the complaint.
4. If the principal does not receive the formal request consideration within two weeks, the complaint is considered closed.
If the completed form is returned, the reasons for selection of the specific work shall be established by the review committee.
Upon a receipt of a completed objection form, the principal will call a meeting of the review committee to consider the complaint.
The committee shall meet to discuss and evaluate the disputed material and shall prepare a written report on the material containing their recommendation or disposition of the matter.
II. The reconsideration committee shall:
a. Examine the challenged material.
b. Determine professional acceptance by reading critical reviews of the material.
c. Weigh values and faults and form opinions based on the material as a whole rather than on passages and sections taken out of context.
d. Discuss the challenged resource in the context of the educational program.
e. Extend invitation to discuss the challenged item with the individual questioner when appropriate.
f. Prepare a written report to the (sic) submitted to the Superintendent of Schools.
The principal shall notify the complainant of the decision. In answering the complainant, the principal shall explain how and why the book was selected, give the guidelines used in selection, and cite authorities used in reaching decisions. If the committee decides to retain the work that prompted the complaint, the complainant shall be given an explanation. If the complaint is judged valid, the principal will acknowledge it and make recommended changes.
If the complainant is still not satisfied, he/she may appeal to the Baileyville School Committee, through the superintendent, which shall make a final determination of the issue.
Books for oral reports : Each student is presented with a list of books for possible reading. If any student chooses a book containing subject matter which he considers improper, he should bring the material to the attention of his teacher and should choose a different book for his/her report.
The teacher shall supply the student with a request for reconsideration form when he makes his objection.
Books for in-depth class study : If any student or parent has a valid objection to any book discussed in any classroom, he/she should follow the steps to have the book reconsidered. The teacher shall supply the student with an alternate book for equal credit. The above excludes textbooks.
Audio-visual : Each teacher must/will assume responsibility for the quality of any enrichment materials used in his/her classrooms.
Although Michael Sheck graduated from Woodland High School prior to the commencement of this action and therefore arguably would not benefit from injunctive relief, except perhaps as a resident adult permitted library access, other plaintiffs currently attending Woodland High School and Woodland Junior High School have a direct personal stake in preliminary injunctive relief.
Although federal courts are understandably reluctant to review school library book bans in deference to the traditional prerogatives of local school authorities and for fear of inviting a flood of litigation, see, e.g., Pico v. Bd. of Educ., 638 F.2d 404, 414-15 (2d Cir. 1980) (Sifton, J., plurality opinion), “the judiciary's role of final arbiter of the validity of all laws and protector of the people, young and old, from the exercise of unconstitutional power,” Breen v. Kahl, 419 F.2d 1034, 1038 (7th Cir. 1969), cert. denied, 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268 (1970) (school regulation regarding student hair styles), bars their retreat.
This may not be an easy road, free from difficulty. But no amount of ‘fatigue’ should lead us to adopt a convenient ‘institutional’ rationale-an absolutist, ‘anything goes' view of the First Amendment-because it will lighten our burdens (footnote omitted). ‘Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees....’ Our duty admits of no ‘substitute for facing up to the tough individual problems of constitutional judgment involved in every obscenity case.’
In Ginsberg, the Supreme Court felt unable to rule that a finding by the New York Legislature that certain “obscene” material would be harmful to minors was irrational. 390 U.S. at 643, 88 S.Ct. at 1282. Mr. Justice Brennan, speaking for the Court, demonstrated that the view that obscenity may precipitate antisocial conduct or produce harmful effects in youth may be rationally held:
... But despite the vigor of the ongoing controversy whether obscene material will perceptibly create a danger of antisocial conduct, or will probably induce its recipients to such conduct, a medical practitioner recently suggested that the possibility of harmful effects to youth cannot be dismissed as frivolous. Dr. Gaylin of the Columbia University Psychoanalytic Clinic, reporting on the views of some psychiatrists in 77 Yale L.J., at 592-593, said:
‘It is in the period of growth (of youth) when these patterns of behavior are laid down, when environmental stimuli of all sorts must be integrated into a workable sense of self, when sensuality is being defined and fears elaborated, when pleasure confronts security and impulse encounters control-it is in this period, undramatically and with time, that legalized pornography may conceivably be damaging.’
Dr. Gaylin emphasizes that a child might not be as well prepared as an adult to make an intelligent choice as to the material he chooses to read:
‘(P)sychiatrists ... made a distinction between the reading of pornography, as unlikely to be per se harmful, and the permitting of the reading of pornography, which was conceived as potentially destructive. The child is protected in his reading of pornography by the knowledge that it is pornographic, i.e., disapproved. It is outside of parental standards and not a part of his identification processes. To openly permit implies parental approval and even suggests seductive encouragement. If this is so of parental approval, it is equally so of societal approval-another potent influence on the developing ego.’
The Supreme Court in Ginsberg quoted the following language with approval-
While the supervision of children's reading may best be left to their parents, the knowledge that parental control or guidance cannot always be provided and society's transcendent interest in protecting the welfare of children justify reasonably regulation of the sale of material to them. It is, therefore, altogether fitting and proper for a state to include in a statute designed to regulate the sale of pornography to children special standards, broader than those embodied in legislation aimed at controlling dissemination of such material to adults.
We are well beyond the belief that any manner of state regulation is permissible simply because it involves an activity which is part of the university structure and is financed with funds controlled by the administration. The state is not necessarily the unrestrained master of what it creates and fosters. Thus in cases concerning school-supported publications or the use of school facilities, the courts have refused to recognize as permissible any regulations infringing free speech when not shown to be necessarily related to the maintenance of order and discipline within the educational process. (Citations omitted.)
A library book ban presupposes reversal of the decision by appropriate school authorities to acquire the book in the first place. Consideration should be given to whether the initial determination to make the book available is entitled to a presumption of procedural regularity see Note, Schoolbooks, School Boards, and the Constitution, 80 Colum.L.Rev. 1092, 1123-24 (1980), which may only be overcome by adequate findings based on ascertainable standards.
Of course, it may be appropriate to require an even more rigorous showing where state action is aimed at restricting access to concededly nonobscene materials deemed objectionable on vocabular grounds only.
School personnel simply passed complaints along the “chain of command.” The chairperson of the Woodland High School English Department identified a written complaint form which can in no sense be considered a challenged materials policy. It was not used in this instance and there is no evidence that it has ever been used.
The court does not suggest that there is no evidence of a Committee intent to suppress ideas. The arbitrariness of the Committee refusal to submit 365 Days for consideration under its own new challenged material policy could well be considered evidence of pretextual censorship, as could the overbreadth of the ban itself which neither distinguishes between mature and immature students, nor between students and adults.
Measured by the criteria later adopted by the Committee itself, see ‘Baileyville School Department Challenged Material Policy,’ note 4 supra, the Committee action banning 365 Days appears seriously deficient due to its procedural irregularity, arbitrariness, vagueness, and overbreadth.
These criteria, requiring case-by-case application, would seem to impose an onerous administrative burden upon the local superintending school committee, which would have little occasion and less time to evaluate, for instance, the sophistication of individual students. Librarians and teachers possess certain expertise not as likely to be found on the local school committee, especially in the area of assessing individual-student intellectual and literary interests and sophistication. On the other hand, as a general rule parents are better suited to the task of evaluating the emotional and intellectual maturity and sophistication of their own children. The expertise of parents is based on a more fully informed understanding and concern for the social, educational, cultural, moral and spiritual well-being and development of their own children.