Pico v. Board of Education , 638 F.2d 404 ( 1980 )

SIFTON, District Judge.

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.¹ 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.² 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.

FACTUAL BACKGROUND

On September 19, 20 and 21, 1975, three members of the Board of Education of the Island Trees Union Free School District³ in Nassau County, including defendants Frank Martin, Patrick Hughes and the Board’s President, defendant Richard Ahrens, attended 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 underlining, 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 Col-ton-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.⁴

Although acquired in September, nothing was done by defendants with these lists⁵ 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 Martin’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 1976⁶ 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,⁷ 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.

“.. . [W]e 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, “[t]he 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 “[y]ou will have the opportunity to examine the books yourselves.” 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 m]any 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.”⁸

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.”⁹

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 “[t]his 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 probably because of this) the incumbent members were re-elected.”

A further press release defending the Board’s position was issued by defendant Ahrens in August 1976. In January 1977 this lawsuit was filed. The Board responded to the lawsuit with a press release stressing the repellent and vulgar language present in the books. Counsel for defendants, in a procedure of questionable propriety,¹⁰ mailed a questionnaire to 4,979 mailing addresses in the District asking whether the recipient was a parent of public school children and whether the recipient “supported” the Board’s action in removing “the books in question.” The results of this mailing, “done at our attorney’s request due to the alleged class action nature of the suit,” but reported in defendants’ response to plaintiffs’ motion for summary judgment, were 508 (or 59% of those responding) supporting the Board, 358 (or 41% of those responding) opposed.

Following denial of plaintiffs’ motion to remand the case to state court, defendants moved for summary judgment dismissing plaintiffs’ complaint. In support of their motion defendants set forth the history and documents referred to above. In addition, they alleged:

“Defendants Ahrens and Martin objected to the books for numerous reasons including the presence of profanities and obscenities, explicit sexual allusions, depictions of deviant sex, the glorification of sex and drugs, ungrammatical usage, and excerpts offensive to racial, religious or ethnic groups.”

The two defendants identified the offending essay in A Reader for Writers, not as the essay which equated Malcolm X with the Founding Fathers, but rather, as Swift’s “A Modest Proposal.” Defendant Ahrens found the subject of that 18th Century satire on England’s treatment of Ireland “irrelevant to the curriculum.” Defendant Martin averred that he “felt it to be inappropriate’-apparently referring to the standard of appropriateness of grade level contained in the union contract. Plaintiffs sought depositions of defendants and then themselves cross-moved for summary judgment. On August 2, 1979, Judge Pratt, relying principally on the decision of this Court in President’s Council, District 25 v. Community School Board # 25, 457 F.2d 289 (2d Cir.), cert. denied, 409 U.S. 998, 93 S.Ct. 308, 34 L.Ed.2d 260 (1972), granted the motion of defendants for summary judgment in their favor.

DISCUSSION

I

We start with an awareness that the application of the prohibitions of the First Amendment to secondary school education presents complexities not encountered in other areas of government activity. We are dealing with the care of children by a government concerned with the “well-being of its youth.” F.C.C. v. Pacifica Foundation, 438 U.S. 726, 749, 98 S.Ct. 3026, 3040, 57 L.Ed.2d 1073 (1978), quoting Ginsberg v. New York, 390 U.S. 629, 640, 88 S.Ct. 1274, 1281, 20 L.Ed.2d 195 (1968). Moreover, “a principal function of all elementary and secondary education is indoctrinative-whether it be to teach the ABC’s or multiplication tables or to transmit the basic values of the community.” James v. Board of Education, 461 F.2d 566, 573 (2d Cir.), cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 491 (1972). Further, “[b]y and large, public education in our Nation is committed to the control of state and local authorities.” Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968). Finally, we must accommodate “our concern for the First Amendment rights of students with a cautious deference to the expertise of educational officials within the academic environment.” Thomas v. Board of Education, 607 F.2d 1043, 1050 (2d Cir. 1979), cert. denied, 444 U.S. 1081, 100 S.Ct. 1034, 62 L.Ed.2d 765 (1980).

At the same time, “First Amendment rights, applied in the light of the special characteristics of the school environment, are available to teachers and students.” Tinker v. Des Moines School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). Moreover, “[t]he Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures-Boards of Education not excepted.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943). As Justice Jackson also wrote in the same decision, “[pjrobably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational school officials may compel youth to unite in embracing. . .. [T]he First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.” Id. at 641, 63 S.Ct. at 1186. With respect to the relative expertise of courts and educational officials, the same opinion reminds us, “we act in these matters not by the authority of our competence but by force of our commissions. We cannot, because of modest estimates of our competence in such specialties as public education, withhold the judgment that history authenticates as the function of this Court when liberty is infringed,” Id. at 640, 63 S.Ct. at 1186.

It is, however, not only the unusual number of potentially conflicting values which compete for attention in matters relating to secondary education that makes these cases difficult. There is, in addition, the generally acknowledged proposition that “freedom of expression demands breathing room.” James v. Board of Education, supra, 461 F.2d at 572. That conclusion, based on an awareness of the “chilling effect upon the exercise of vital First Amendment rights,” Keyishian v. Board of Regents, 385 U.S. 589, 604, 87 S.Ct. 675, 684, 17 L.Ed.2d 629 (1967), of determinations, whether by school officials or by courts, which attempt with either excessive breadth or excessive precision to delimit the areas of protected and prohibited speech reminds us to proceed with caution to consider not just the general outlines, but the specific facts of the case before us.¹¹

As Judge Kaufman noted in James v. Board of Education, supra, 461 F.2d at 575:

“It is characteristic of resolutions of first amendment cases, where the price of freedom of expression is so high and the horizons of conflict between countervailing interests seemingly infinite, that they do not yield simplistic formulas or handy scales for weighing competing values. ‘The best one can hope for is to discern lines of analysis and advance formulations sufficient to bridge past decisions with new facts.... ’ Eisner v. Stamford Board of Education, 440 F.2d 803, 804 n.1 (2d Cir. 1971).”

Such considerations are relevant not only to our approach to the facts of the case before us, but also to an appreciation of the significance of past precedents. In circumstances in which so many interests and public policies converge, relatively minor changes in the pattern of facts presented “often deprive precedents of reliability and cast us more than we would choose upon our own judgment.” West Virginia State Board of Education v. Barnette, supra, 319 U.S. at 640, 63 S.Ct. at 1186. “It is a frustrating process which does not admit of safe analytical harbors.” Eisner v. Stamford Board of Education, 440 F.2d 803, 804-05 n.1 (2d Cir. 1971).¹²

II

The presence of these conflicting considerations affects, initially, the definition of what constitutes a prima facie case. Powers to prescribe what may or may not be said and what may or may not be read-powers which are “denied to most public officials,” Thomas v. Board of Education, supra, 607 F.2d at 1049 n.10-are accorded to school officials because they are the necessary prerequisites to the formation of a school curriculum and the necessary prerequisites to the stocking of a school library. “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.” Epperson v. Arkansas, supra, 393 U.S. at 104, 89 S.Ct. at 270. As this Court has pointed out in Presidents Council v. Community School Board, supra, one cannot bring to court every decision by a school official involving the shelving or unshelving of a book in a school library without truly exposing the country to the danger which was the concern of the Supreme Court in Minersville School District v. Gobitis, 310 U.S. 586, 598, 60 S.Ct. 1010, 1014, 84 L.Ed. 1375 (1940), overruled, West Virginia State Board of Education, supra, that the federal courts will become “the school board for the country.”

It is not simply the onerousness of the task of policing every decision involving the contents of course curriculum or a school library for First Amendment violations which led to dismissal of the complaint in cases such as President’s Council. The need for policing in such circumstances is, generally speaking, not there. The authority and responsibilities of our public school officials in the area are, by and large, so well understood and well performed that, absent extraordinary circumstances, there is no uncertain or “chilling” effect attendant on a decision to teach one subject rather than another or to select one from among many book titles competing for limited space on the library shelf. Just as it is well understood that “education would be impossible if teachers were forbidden to sanction incorrect responses or substandard essays with failing grades,” Thomas v. Board of Education, supra, 607 F.2d at 1049, so it is well understood that the school library offers a more restricted choice than the public library and that what is not taught in high school will be available in college. The everyday administration of a school’s curriculum or a school library does not, either directly or indirectly, impinge on the free expression of ideas.

In these circumstances, bare allegations that books have been removed from the shelves of secondary school libraries by responsible officials do not make out a prima facie First Amendment violation, even if the books have a controversial reputation so that one available inference is that they were removed to prohibit the expression of the ideas they contain. Such activities, being part of “the daily operation of school systems” do not “directly and sharply implicate basic constitutional values.” Epperson v. Arkansas, supra, 393 U.S. at 104, 89 S.Ct. at 270. On the contrary, the activity is on its face entirely consistent with the performance of the educational function conferred on school officials. Were it the case here, as in President’s Council, that nothing more was at issue than the conflicting inferences to be drawn from the act of removal of a controversial text from the shelf of a high school library, we would affirm the decision of the district court because no prima facie case was established.

In this case, however, we are presented with more than the inferences to be drawn from the act of removing controversial texts from library shelves, and more than the clearly understood, routine and regular task of selecting titles for a school library. What we have instead is an unusual and irregular intervention in the school libraries’ operations by persons not routinely concerned with such matters. Moreover, this intervention has occurred under circumstances, including the explanations for their actions given by the participants, which so far from clarifying the scope and intentions behind the official action, create instead grave questions concerning both subjects. In circumstances of such irregularity and ambiguity, a prima facie case is made out and intervention of a federal court is warranted because of the very infrequency with which it may be assumed such intervention will be necessary and because of the real threat that the school officials’ irregular and ambiguous handling of the issue will, even despite the best intentions, create misunderstanding as to the scope of their activities which will serve to suppress freedom of expression.

Ill

The cases, however, which have recognized a prima facie First Amendment violation in some irregular and apparently arbitrary intervention in the daily operation of secondary school affairs have at the same time recognized that, because of the complexity of the social policies at work in the secondary school context, defenses-short of clear and present danger-must be recognized to permit the school official to establish that the education of the young cannot be handled entirely by routine procedures and even that “an added increment of chilling effect”, Thomas v. Board of Education, supra, 607 F.2d at 1051, may have to be tolerated to perform adequately the task of educating the young. Thus, speech which “materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” Tinker v. Des Moines, 393 U.S. at 513, 89 S.Ct. at 740. Justice Fortas’ concern for “the rights of others” has found particularized recognition in this Circuit in the regulation of language to protect the psychological well being of the young, Trachtman v. Anker, 563 F.2d 512 at 517 (2d Cir. 1977), cert. denied, 435 U.S. 925, 98 S.Ct. 1491, 55 L.Ed.2d 519 (1978), and “to promote standards of civility and decency among school children,” Thomas v. Board of Education, supra, 607 F.2d at 1057 (Newman, J., concurring).

To be sure, the burden of demonstrating such defenses rests with the school officials and the burden is one of persuasion, not of pleading.

“As for the burden of proof, Tinker, as well as other federal cases establish that, if students choose to litigate, school authorities must demonstrate a reasonable basis for interference with student speech, and that courts will not rest content with officials’ bare allegation that such a basis existed.” Eisner v. Stamford Board of Education, supra, 440 F.2d at 810 (citations omitted).

Nor is the burden a light one.

“Any limitation on the exercise of constitutional rights can be justified only by a conclusion, based on reasonable inferences flowing from concrete facts and not abstractions, that the interests of discipline or sound education are materially and substantially jeopardized. ... ” James v. Board of Education, supra, 461 F.2d at 571.

Moreover, and of principal importance to the resolution of the issues presented by this case, the burden is not simply to demonstrate that there is a basis for the school officials’ actions. As stated in this Circuit in Eisner v. Stamford Board of Education, supra, 440 F.2d at 806, while we are concerned, first, with whether the Board’s policy [is] justified as included within one or more of the categories of exceptional cases” in which regulation of speech is permitted in the schools,

“[s]econd, is the policy as narrowly drawn as may reasonably be expected so as to advance the social interests that justify it or, to the contrary, does it unduly restrict protected speech, to an extent ‘greater than is essential to the furtherance of’ those interests? See United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). In light of Freedman [v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965)], the latter question might usefully be addressed, alternatively, to the substantive and to the procedural aspects of the policy-that is, first to the criteria by which school officials are permitted to bar literature from the school and second to the means by which the bar is to be effected.” Id.

The rationale for this concern with the manner in which the regulation is carried out is that summarized in Keyishian v. Board of Regents, supra, 385 U.S. at 603-04, 87 S.Ct. at 683-684:

“We emphasize once again that ‘[precision of regulation must be the touchstone in an area so closely touching our most precious freedoms,’ N.A.A.C.P. v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 . .. ‘Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.’ Id. at 432, 433, 83 S.Ct., at 337-338. .. . When one must guess what conduct or utterance may lose him his position, one necessarily will ‘steer far wider of the unlawful zone.... ’ Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. For ‘[t]he threat of sanctions may deter .. . almost as potently as the actual application of sanctions.’ N.A.A.C.P. v. Button, supra, 371 U.S. at 433, 83 S.Ct. at 338. The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform . .. what is being proscribed.”

Whatever may be said in favor of the good intentions of the school officials in this case-and more will be said on that subject, infra-little may be said in support of their sensitivity or precision in dealing with the First Amendment issues in this case. On the substantive side, the criteria for removal suggested by the evidence suffer from excessive generality and overbreadth. Whatever definiteness there may be in a complaint that a book is “filthy,” Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), there is certainly no precision, sufficient to provide the kind of reasonably clear guidance necessary for free and open debate, in the complaints that books are “anti-Christian” or “anti-American.” See Keyishian v. Board of Regents, supra, 385 U.S. at 598-99, 87 S.Ct. at 681-682. The very nature of this broad brush approach must inevitably be to suggest that the school officials’ concern is less to cleanse the libraries of all books containing material insulting to members of one or another religious group or which evidences an inaccurate view of the nation’s history, than it is to express an official policy with regard to God and country of uncertain and indefinite content which is to be ignored by pupils, librarians and teachers at their peril.

However, quite apart from the articulated criteria for selection of the books for removal, precision of regulation and sensitivity to First Amendment concerns are hardly established by the erratic, arbitrary and free-wheeling manner in which the defendant school officials proceeded in this case. The books were removed from school library shelves before any concerned school official had read them, solely on the basis of mimeographed quotations collected by anonymous readers whose editorial comments revealed political concerns reaching far beyond the education and well-being of the children of the Island Trees Union Free School District. Moreover, so far from seeking to insure that the “prejudices of the community” not infringe individual free speech and so far from recognizing “that the will of the transient majority can prove devastating to freedom of expression,” James v. Board of Education, supra, 461 F.2d at 575, defendants conducted themselves, despite warnings by their school Superintendent, in a manner calculated to create public uproar. By drawing the “book issue” into the School Board election, a labor dispute, public meetings (at which “we are confident” that “most of the parents . .. will back us to the hilt”) and then into a district-wide plebiscite, they insured that the impression would be created that freedom of expression in the District would be determined in some substantial measure by the majority’s will. Having proceeded in this fashion, defendants are hardly in a position to carry their burden of establishing that they have not, in pursuit of their functions, “unduly restricted protected speech to an extent greater than is essential” to the furtherance of the interests sought to be protected. Eisner v. Stamford Board of Education, supra, 440 F.2d at 806. On the contrary, the Board’s erratic and free-wheeling procedures inevitably leave it a matter of guesswork for teachers, librarians and students in the District whether other efforts at self-expression on their part will be curtailed with equally little notice and equally little opportunity for defense, in the name of policies having equally little to do with the local concerns of the educational community, subject to the equally uncertain outcome of public debate. As this Court has said, the erratic, unfair and arbitrary administration of policy with regard to speech in schools is as much to be feared as the contents of the policy itself as a source of first amendment violations. Eisner v. Stamford Board of Education, supra, 440 F.2d at 809. We require greater “sensitivity to some of the teaching reflected in relevant constitutional doctrine and to the dangers lurking in improper and unconstitutional administration” than is demonstrated by the Board of Education in this case. Id. at 809-10. Not only must there be “narrow specificity” in the criteria applied, but there must be the use of “sensitive tools” in their application. Keyishian v. Board of Regents, supra, 385 U.S. at 603-04, 87 S.Ct. at 683-684.

Finally, even were defendants in a position to carry their burden of establishing that there was a substantial and material basis for their actions and that their actions were possessed of sufficient procedural regularity to give a better basis than guesswork as to how the Board of Education would act in the future with regard to similar issues, plaintiffs below should have, in all events, been offered an opportunity to persuade a finder of fact that the ostensible justifications for defendants’ actions-be it indecency or ungrammatical usage, as one defendant suggested, or some other ground-were simply pretexts for the suppression of free speech. As was recognized in Cohen v. California, 403 U.S. 15, 26, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1970), government may not “seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.” See FCC v. Pacifica Foundation, supra, 438 U.S. at 746, 98 S.Ct. at 3038.

Clearly, mere reference by a defendant to personal standards of taste or political philosophy as one factor in a decision involving first amendment values cannot, in and of itself, provide a basis for rationally inferring an intent to suppress the different views of others. Courts cannot prohibit and, indeed, should encourage, within limits, the thoughtful application of personal standards of taste and morality and of political belief in the performance of governmental functions. Where, however, as in this case, evidence that the decisions made were based on defendants’ moral or political beliefs appears together with evidence of procedural and substantive irregularities sufficient to suggest an unwillingness on the part of school officials to subject their political and personal judgments to the same sort of scrutiny as that accorded other decisions relating to the education of their charges, an inference emerges that political views and personal taste are being asserted not in the interests of the children’s well-being, but rather for the purpose of establishing those views as the correct and orthodox ones for all purposes in the particular community. What was said in Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 267, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977), applies here:

“The historical background of the decision is one evidentiary source.... The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmakers’ purposes .... Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.”

Among the procedural and other irregularities which warrant an inference that the welfare and education of the children of the Island Trees School District were not the true motivating concerns which led to the removal of the books from school libraries in that District are, in addition to those already mentioned: defendants’ substantive confusion, not to say incoherence, as to the reasons the books were being removed from the libraries; the informal and dilatory manner in which the matter was pursued, including the lapse of three months from the time the presence of the offending books was discovered in the libraries until the principals of the schools were asked to take some action to prevent children from reading them, cf. Thomas v. Board of Education, supra, 607 F.2d at 1052 n.17 (delay of six days by school officials in acting on complaint); the ex post facto appointment of a committee to review the removal of the books, the determinations of which were then, without explanation, not followed by the Board; the strong opposition of professional personnel, including the District Superintendent, to the procedures used by the Board, cf. Thomas v. Board of Education, supra, 607 F.2d at 1051 (noting the origin of the complaint with the President of the Board of Education, rather than with school administrative officials); and, finally, the “substantive” irregularities, as Arlington Heights puts it, of removing works by such generally recognized authors as Swift, the late Richard Wright, and Bernard Malamud, whose book, The Fixer, was, indeed, an assigned high school reading text.

In summary, the writer concludes that plaintiffs made out a prima facie case of a first amendment violation and that defendants failed to carry their burden of establishing that the manner, if not the motive for their actions, did not violate the First Amendment.¹³ In addition, the writer is of the view that, even had defendants’ case in support of their actions been more compelling, plaintiffs were improperly deprived of an opportunity to persuade the finder of fact that the proffered justifications were mere pretext for an intentional violation of plaintiffs’ rights. While neither the right of free expression nor the free-wheeling style of the Board of Education in the Island Trees Union Free School District may seem, from all perspectives, of great significance, as Justice Jackson said with characteristic conciseness in the seminal case in this area, West Virginia v. Barnette, supra, 319 U.S. at 638, 63 S.Ct. at 1185 (1943):

“There are village tyrants as well as village Hampdens, but none who acts under color of law is beyond the reach of the Constitution.”

Since the majority is of the view that defendants were not entitled to judgment below and that plaintiffs are entitled to proceed with the prosecution of their claims, we reverse and remand to the district court for trial.

1 . The complaint was originally filed in state court and was thereafter removed to federal district court pursuant to 28 U.S.C. § 1441. Plaintiffs’ motion to remand to the state court was denied, a ruling not complained of here and which was, in all events, correct, since the complaint raised substantial issues which the federal court had jurisdiction to decide under 28 U.S.C. § 1343. See 28 U.S.C. § 1441(b).

2 . The books at issue are: The Fixer, by Bernard Malamud; Slaughterhouse Five, by Kurt Vonnegut; The Naked Ape, by Desmond Morris; Down These Mean Streets, by Piri Thomas; Best Short Stories by Negro Writers, edited by Langston Hughes; Go Ask Alice, by an anonymous author; A Hero Ain't Nothing But a Sandwich, by Alice Childress; Black Boy, by Richard Wright; Laughing Boy, by Oliver LaFarge; Soul on Ice, by Eldridge Cleaver; and an anthology entitled, A Reader for Writers, edited by Jerome Archer.

3 . Union Free School Districts are the product of New York State’s first attempt in 1853 to encourage rural school districts to consolidate resources in an effort to enrich elementary education and make possible secondary school facilities not otherwise available to the separate communities. L.1853, c. 433. Graves, “Development of the Education Law in New York,” McKinney’s Education Law, Sections 1 to 600, pp. xxi-xxii (1969 Ed.).

4 . The entry for Oliver LaFarge’s Laughing Boy reads in its entirety as follows:

"Laughing Boy by Oliver LaFarge

“Page 38-‘I tell you, she is all bad; for two bits she will do the worst thing.’

“Pages 258-9-‘I was frightened when he wanted me to lie with him, but he made me feel all right. He knew all about how to make women forget themselves, that man.’ ”

5 . An affidavit of defendant Martin states he made a second list entitled “Objectionable Books” from the materials acquired at the conference. Since this list includes titles and authors beyond those covered by the lists identified as acquired at the Watkins Glen conference, e. g., Why I am not a Christian, by Bertrand Russell; Law and the Consumer; and Down These Mean Streets, by Richard Yates [sic], it seems clear either that lists were obtained at the Watkins Glen conference which are not part of the record, or that other sources were consulted by Martin.

6 . According to Ahrens, “I think we mentioned our concerns to the other board members and to the [District] Superintendent in a rather informal manner” at an executive session of the Board in November. The Board also met in January.

7 . Superintendents of Union Free School Districts possess the following powers, among others, under New York Education Law 1711(5):

“a. To be the chief executive officer of the school district and the educational system, and to have the right to speak on all matters before the board, but not to vote.

“c. To prepare the content of each course of study authorized by the board of education. ...

“d. To recommend suitable lists of textbooks to be used in the schools.

“f. To have supervision and direction over ... all other matters pertaining to .. . libraries, lectures, and all other education activities under the management, direction and control of the board of education.”

8 . Apparently, in March the union had filed a grievance against the Board stating that the Board had violated this clause of the union contract.

9 . Neither this recommendation nor any of the other recommendations made by formal vote of the committee at later meetings in May and June were acted upon prior to the July Board of Education meeting when all of the committee’s recommendations were considered together.

10 . Manual for Complex Litigation, Sec. 1.41 (1973). Compare AAMCO Automatic Transmissions, Inc. v. Tayloe, 67 F.R.D. 440, 447 (E.D.Pa.1975) and Weight Watchers of Philadelphia v. Weight Watchers International, 53 F.R.D. 647 (E.D.N.Y.1971) with Matarazzo v. Friendly Ice Cream Corp., 62 F.R.D. 65 (E.D.N.Y. 1974). Cf. Coles v. Marsh, 560 F.2d 186 (3d Cir.), cert. denied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 479 (1977). And see Erhardt v. Prudential Group, Inc., 429 F.2d 843 (2d Cir., 1980).

11 . It is significant that the precise language of Justice Fortas’ decision in Tinker v. Des Moines School District, supra, 393 U.S. at 514, 89 S.Ct. at 740, defining the boundaries of permissible regulation of student speech became incorporated in a school board rule regulating the distribution of literature on school premises which this Court was obliged to strike down in Eisner v. Stamford Board of Education, 440 F.2d 803, 807 (2d Cir. 1971). As noted by this Court in Thomas v. Board of Education, supra, 607 F.2d at 1049, First Amendment problems in the school area “are not easy of solution and much depends upon the specific facts before us.”

12 . Thus, although both James and Taylor involved school regulations barring the wearing of black arm bands in secondary schools to protest the Vietnam war, this Court noted in James, supra, “there is merit to appellees’ argument that Tinker does not control this case.” 461 F.2d at 573. Tinker itself cited with approval both Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966) and Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (5th Cir. 1966) decided on the same day by the same panel, one upholding and the other striking down school board regulations prohibiting the wearing of freedom buttons on school property, because of a difference in the manner in which the children wearing the buttons had comported themselves at the two schools involved. Tinker v. Des Moines School District, supra, 393 U.S. at 509, 513, 89 S.Ct. at 737, 740.

13 . Judge Newman concludes that a trial is required to determine the effect of defendants’ conduct on plaintiffs’ exercise of their first amendment rights, since plaintiffs have not been threatened with punishment for expressing ideas contained in the offending books. As Judge Newman points out in his opinion, however, what is at issue is the degree of risk that ideas will be suppressed as a result of defendants’ conduct. Once all copies of the books containing the offending ideas have been ordered removed from the school library under the circumstances here presented, it hardly requires a trial, in my view, to determine that the risk is overwhelming that students will conclude that they are not at liberty to express the same thoughts themselves and that they will be appropriately punished if they do so. To hold, as Judge Newman would, that potential plaintiffs must, when faced with similar conduct by school boards in the future, contemplate the prospect of plenary trial in our congested district courts in order to vindicate their First Amendment rights is, in my view, to impose too great a burden on free speech.

Judge Mansfield is mistaken in reading the majority opinion as condemning the application by school boards of personal taste, political beliefs or local community standards to decisions concerning the contents of school libraries in this Circuit. Cf. Zykan v. Warsaw Community School Corp., 631 F.2d 1300 (7th Cir., 1980). The opinion says the contrary. There is, however, a difference between applying one’s personal taste or political views to the formulation of school policy and simply requiring conformity by students and teachers with subjective and intangible standards of personal morality or political philosophy. What is required in order to avoid the effect of governing school affairs simply by a vague and indefinite pall of orthodoxy is the development of a set of sufficiently objective criteria for the identification of speech which will be objected to and a sufficiently regular procedure for applying those criteria in concrete cases to permit students to determine with a reasonable degree of certainty what speech will be prohibited and when. This is not accomplished by the Board’s March Newsletter to all families in the District expressing the Board’s loosely stated findings (“... the books .. . contain material that is offensive to Christians, Jews, Blacks, and Americans in general. In addition, these books contain obscenities, blasphemies, brutality, and perversion beyond description”), its peremptory conclusion (“... we all agree that these books simply DO NOT belong in the school libraries ... ”), and its vague warning (“It is our duty, our moral obligation, to protect the children of our schools from this moral danger as surely as from physical and medical dangers”). This message, of course, preceded the April appointment of the book review committee as well as the later efforts by the Board members, in response to the plaintiffs’ motion for summary judgment in this case, to explain their actions principally, although still not entirely, in terms of the books’ vulgarity and indecency. Nothing in this later history, in my view, serves to dispel the effect upon first amendment rights of the Board’s initial manner of dealing with the issue, and, as noted in the body of this opinion, much occurred thereafter which only served to make the situation worse.