Sheck v. Baileyville School Committee | Cases | Westlaw

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.

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.

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

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).

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-

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.

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.

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).

Plaintiffs demand redress of their first amendment “rights of freedom of speech (and) freedom of access.”⁶ In order to prevail on the merits, plaintiffs must demonstrate that their basic first amendment rights have been “directly and sharply implicated” by the ban, Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968), whereupon the defendants must show that encroachment upon first amendment rights was warranted by a sufficient state interest. Compare Elrod v. Burns, 427 U.S. 347, 362, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547 (1976) (patronage dismissals require showing of paramount state interest) and Police Dept. of Chicago v. Mosley, 408 U.S. 92, 98-99, 92 S.Ct. 2286, 2291-2292, 33 L.Ed.2d 212 (1972) (restrictions on expressive conduct in true public forum require showing of substantial state interest) with Tinker v. Des Moines Indep. School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969) (less stringent showing of state interest required in “school environment”) and Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195 (1968) (variable obscenity standard based on rational legislative determination that materials might be harmful to minors held constitutional). The existence of a sufficient state interest does not end the matter. The burden of persuasion that there has been no unnecessary abridgement of first amendment rights rests with the defendants. Elrod v. Burns, 427 U.S. at 362-63, 96 S.Ct. at 2684; Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 637, 46 L.Ed.2d 659 (1976).

The banning of 365 Days could be viewed as not directly and sharply implicating a basic constitutional right under some recent *685 authority. See Zykan v. Warsaw Community School Corp., 631 F.2d 1300, 1308 (7th Cir. 1980) (first amendment not implicated unless removal is part of attempt to purge library materials conflicting with committee orthodoxy or book is otherwise completely unavailable to students); Pico v. Bd. of Educ., 638 F.2d 404, 414-15 (2d Cir. 1980), cert. granted, —- U.S. ——, 102 S.Ct. 385, 70 L.Ed.2d 205 (Sifton, J., plurality opinion) (ban does not directly and sharply implicate basic constitutional values unless circumstances are so unusual and irregular as to create misunderstanding as to its scope and purpose thereby chilling other forms of expression by teachers, librarians, and students); id. at 432 (Newman, J., concurring) (removal encroaches on first amendment if it tends to suppress ideas). Other courts disagree. See Minarcini v. Strongsville City School Dist., 541 F.2d 577, 583 (6th Cir. 1976) (right of students to receive information is implicated by book removal); Salvail v. Nashua Bd. of Educ., 469 F.Supp. 1269, 1274 (D.N.H.1979) (secondary school library magazine protected by first amendment); Right to Read Defense Comm. v. School Comm., 454 F.Supp. 703, 712-14 (D.Mass.1978) (right to read implicated by banning of book because of its theme and offensive language).

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).

With but one exception,⁷ it does not appear that the banning of 365 Days deprived these plaintiffs of their first amendment right to initiate expression. Book bans do not directly restrict the readers' right to initiate expression but rather their right to receive information and ideas, the indispensable reciprocal of any meaningful right of expression, Procunier v. Martinez, 416 U.S. 396, 408, 94 S.Ct. 1800, 1808, 40 L.Ed.2d 224 (1974); Kleindienst v. Mandel, 408 U.S. 753, 762-63, 92 S.Ct. 2576, 2581-82, 33 L.Ed.2d 683 (1972); Lamont v. Postmaster General, 381 U.S. 301, 308, 85 S.Ct. 1493, 1497, 14 L.Ed.2d 398 (1965) (Brennan, J., concurring).

*686 Although its constitutional contours remain rudimentary, the right to receive information and ideas has been recognized by the United States Supreme Court in a variety of contexts. E.g. Procunier v. Martinez, 416 U.S. 396, 408, 94 S.Ct. 1800, 1808, 40 L.Ed.2d 224 (1974) (individual right to receive uncensored mail from prisoner); Stanley v. Georgia, 394 U.S. 557, 564, 568, 89 S.Ct. 1243, 1247, 1249, 22 L.Ed.2d 542 (1969) (individual right to receive “information and ideas, regardless of their social worth” and right to read obscene material, at least in privacy of home); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371 (1969) (public right of access to social, political, esthetic, moral and other ideas ); Lamont v. Postmaster General, 381 U.S. 301, 308, 85 S.Ct. 1493, 1497, 14 L.Ed.2d 398 (1965) (Brennan, J., concurring) (individual right to receive mail publications); Martin v. City of Struthers, 319 U.S. 141, 143, 149, 63 S.Ct. 862, 863, 866, 87 L.Ed. 1313 (1943) (right to receive home delivery of religious literature ); see also Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945).

Courts recognizing a constitutional right to receive information emphasize the inherent societal importance of fostering the free dissemination of knowledge and ideas in a democratic society. E.g. Kleindienst v. Mandel, 408 U.S. at 763, 92 S.Ct. at 2581; Martin v. City of Struthers, 319 U.S. 141, 145, 63 S.Ct. 862, 864, 87 L.Ed. 1313 (1943). The right to receive information does not depend on the existence of an attempted direct personal communication between the speaker and the recipient, see Virginia State Bd. of Pharmacy v. Virginia Citizens Council, 425 U.S. 748, 756-57, 96 S.Ct. 1817, 1822-23, 48 L.Ed.2d 346 (1976) (first amendment rights of potential recipients violated by statute prohibiting drug-price advertisements), nor upon there being no other way to obtain the information, id. at 757 n.15, 96 S.Ct. 1823 n.15.

The full force of the reasoning in these cases is particularly apposite in the educational environment of the secondary school library. The public school remains a most important public resource in the training and development of youth for citizenship and individual fulfillment. “The American people have always regarded education and acquisition of knowledge as matters of supreme importance which should be diligently promoted.” Meyer v. Nebraska, 262 U.S. 390, 400, 43 S.Ct. 625, 627, 67 L.Ed. 1042 (1923).⁸ The right to receive information and ideas “is ‘nowhere more vital’ than in our schools and universities.” Kleindienst v. Mandel, 408 U.S. 753, 763, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972); see also Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960). Secondary school libraries are “forum(s) for silent speech,” Minarcini v. Strongsville City School Dist., 541 F.2d 577, 583 (6th Cir. 1976), and “warehouses of ideas,” Right to Read Defense Comm. v. School Comm., 454 F.Supp. 703, 710 (D.Mass.1978). “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1211, 1 L.Ed.2d 1311 (1957) (investigation of university professor); cf. Widmar v. Vincent, 454 U.S. 263, ——, n.5, 102 S.Ct. 269, 273, n.5, 70 L.Ed.2d 440 (university campus shares characteristics of public forum and is peculiarly the marketplace of ideas).

The robust traditions of public education in our constitutional jurisprudence contradict assertions that the Bill of Rights constrains the abridgement of free expression *687 for the exclusive benefit of the speaker, cf. Virginia State Bd. of Pharmacy v. Virginia Citizens Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (right of consumers to receive information in drug advertisements), or of adults, see, e.g., Tinker v. Des Moines Indep. School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Public schools are major marketplaces of ideas, and first amendment rights must be accorded all “persons” in the market for ideas, including secondary school students, id. at 511, 89 S.Ct. at 739, seeking redress of state action banning a book from the “warehouse of ideas,” see Right to Read Defense Comm. v. School Comm., 454 F.Supp. 703, 710 (D.Mass.1978). The way would be open to pare the protections of the first amendment to constitutional insignificance in our public schools were courts to accede to suggestions, see, e.g., Zykan v. Warsaw Community School Corp., 631 F.2d 1300, 1308 (7th Cir. 1980); Pico v. Bd. of Educ., 474 F.Supp. 387, 397 (E.D.N.Y.1979), rev'd, 638 F.2d 404 (2d Cir. 1980), that the banning of a library book, the least obtrusive conventional communication resource available, does not at least presumptively implicate the reciprocal first amendment right of secondary students to receive the information and ideas there written.⁹

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 recognition that first amendment rights are directly and sharply implicated does not end the inquiry. An appropriate balance and, if possible, a reasonable accommodation, must be struck among the traditional rights of parents in the rearing of their own children, see, e.g., Wisconsin v. Yoder, 406 U.S. 205, 213-14, 92 S.Ct. 1526, 1532, 32 L.Ed.2d 15 (1972); Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195 (1968); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 400, 43 S.Ct. 625, 627, 67 L.Ed. 1042 (1923); Presidents' Council, Dist. No. 25 v. Community School Bd. No. 25, 457 F.2d 289, 292, n.5 (2d Cir. 1972); Davis v. Page, 385 F.Supp. 395, 405-06 (D.N.H.1974), the power of the state to control public schools, see, e.g., Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct. 1526, 1532, 32 L.Ed.2d 15 (1972); Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 507, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969); Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968), and individual rights of free expression. In the context of public school education considerable deference must be accorded parents and local school authorities in determining the effect upon students of exposure to reading material.

Parents do not surrender their right “to control the education of their own (children),” Meyer v. Nebraska, 262 U.S. 390, 401, 43 S.Ct. 625, 627, 67 L.Ed. 1042 (1923), by enrolling them in public school, except to the extent that the prescribed curriculum serves legitimate educational purposes, Davis v. Page, 385 F.Supp. 395, 405-06 (D.N.H.1974) (music “distasteful” to parents for religious reasons insufficient to require that children be excused from music class on parental request).

“[T]he power of the state to control the conduct of children reaches beyond the scope of its authority over adults ....” Prince v, Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645 (1944); see also Ginsberg v. New York, 390 U.S. 629, 638, 88 S.Ct. 1274, 1279, 20 L.Ed.2d 195 (1968) [sustaining application of variable obscenity standard]. In fact the independent police power of the state to regulate the public conduct of minors may be paramount to parental power over their own children, see, e.g., Prince v. Massachusetts, 321 U.S. at 170, 64 S.Ct. at 444 [sustaining conviction of guardian for allowing nineyear- old daughter to sell religious material on street], provided there is a “rational” basis for the state to find that harm might otherwise result to the minor, see Ginsberg v. New York, 390 U.S. at 639, 88 S.Ct. at 1280.¹⁰

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 Fourteenth Amendment to the Constitution of the United States prohibits *690 the states from depriving “any person of life, liberty, or property, without due process of law....” U.S.Const. amend. 14, s 1. The fourteenth amendment protects first amendment liberties, including freedom of speech, against state infringement. Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1322, 12 L.Ed.2d 377 (1964); Fiske v. Kansas, 274 U.S. 380, 387, 47 S.Ct. 655, 657, 71 L.Ed. 1108 (1927). First Amendment free speech is a fundamental individual liberty which no state may withhold without due process. Lovell v. Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1938); Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138 (1925). The protections of the fourteenth amendment extend to all “persons,” including secondary school students. Tinker v. Des Moines Indep. School Dist., 393 U.S. 503, 511, 89 S.Ct. 733, 739, 21 L.Ed.2d 731 (1969). The procedural regularity required by the fourteenth amendment constrains all creatures of the state, “(b)oards of (e)ducation not excepted.” West Virginia State Bd. of Educ. v. Barnett, 319 U.S. 624, 637, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943). The duties of school boards must be exercised “consistently with federal constitutional requirements.” Morgan v. McDonough, 548 F.2d 28, 32 (1st Cir. 1977); see also Salvail v. Nashua Bd. of Educ., 469 F.Supp. 1269, 1273 (D.N.H.1979).

Arbitrary official interference with the free flow of information and ideas is unconstitutional. Public officials cannot exercise overbroad discretion to censor speech. Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974).¹⁴ In order to avoid chilling legitimate speech-related conduct, governmental regulation of free speech must be limited by reasonably precise “ascertainable standards.” Keyishian v. Bd. of Regents, 385 U.S. 589, 603-04, 87 S.Ct. 675, 683-84, 17 L.Ed.2d 629 (1967) (“Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms....”); Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 1243, 43 L.Ed.2d 448 (1975); Shanley v. Northeast Indep. School Dist., 462 F.2d 960, 977 (5th Cir. 1972).

There is no more appropriate context than the present for the careful delineation and observance of “due process” standards and procedures. The convergence of so many sensitive individual and societal interests poses a constant threat of constitutional collision. The fourteenth amendment has been held to mandate that governmental units adhere to their own rules and regulations. United States ex rel. Accardi v. Shaugnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954) (regulations of Attorney General for processing applications of aliens); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1959) (State Department procedures for dismissal of employee on loyalty grounds); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959) (Interior Department regulations for employee suspension); Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963) (congressional committee rules for conducting executive session); Salvail v. Nashua Bd. of Educ., 469 F.Supp. 1269, 1273 (D.N.H.1979) (failure of school board to follow procedures for removal of magazine from school library). Adherence to established procedures is essential to prevent the kind of arbitrary action that is inherent in the violation by a governmental agency of its own rules. Associated Builders v. United States Dep't of Energy, 451 F.Supp. 281, 289 (S.D.Tex.1978).

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

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):

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 court concludes that plaintiffs have made a strong showing of their entitlement to interim injunctive relief as required in Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981).