Excerpts From Judge Conrad Cyr's Opinion

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Following is the text of the decision in the case Michael Sheck, et al., v. Baileyville School Committee, et al--the banning of the book, 365 Days. Sections I and II of the decision and most footnotes are not included. Section I recounts the facts of the case and Section II discusses preliminary legal considerations. Ellipses indicate where references in the text to other judicial decisions have been omitted. Portions of footnotes added to the text for clarification are bracketed.

Memorandum Decision

The present civil rights action challenges the constitutionality of the banning of the 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. ...


Preliminary Injunctive Relief

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 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. ...

(1) Irreparable Injury

Plaintiffs predicate the pending action on alleged deprivations of their First and 14th Amendment rights. "It is well established that the loss of First Amendment freedoms constitutes irreparable injury." ...

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.

(3) Likelihood of Successon 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).

First Amendment Rights.

Plaintiffs demand redress of their First Amendment "rights of freedom of speech [and] freedom of access." 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, ... whereupon the defendants must show that encroachment upon First Amendment rights was warranted by a sufficient state interest. ... 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. ...

The banning of 365 Days could be viewed as not directly and sharply implicating a basic constitutional right under some recent authority. ...

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 (1969), recognizing that secondary school students "may not be regarded as closed-circuit recipients of only that which the State chooses to communicate." ... 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. ... 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. ...

With but one exception, it does not appear that the banning of 365 Days deprived these plaintiffs of their First Amendment right to initiate expression. [footnote: The threatened confiscation of 365 Days from Michael Sheck on school premises plainly implicates the constitutional right of secondary students to initiate nondisruptive, nonintrusive expression on school premises. ...] 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. ...

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. ...

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. ... The right to receive information does not depend on the existence of an attempted direct personal communication between the speaker and the recipient ..., nor upon there being no other way to obtain the information. ...

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." ... The right to receive information and ideas "is 'nowhere more vital' than in our schools and universities." ... Secondary school libraries are "forum[s] for silent speech" and "warehouses of ideas." ... "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."...

The robust traditions of public education in our constitutional jurisprudence contradict assertions that the Bill of Rights constrains the abridgement of free expression for the exclusive benefit of the speaker ... or of adults. ... 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 ... seeking redress of state action banning a book from the "warehouse of ideas." ... 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 ... 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.

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." ... ["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. ... As long as words convey ideas, federal courts must remain on 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.

Countervailing Interests.

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 ... 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] ... by enrolling them in public school, except to the extent that the prescribed curriculum serves legitimate educational purposes. ...

"The power of the state to control the conduct of children reaches beyond the scope of its authority over adults." ... 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 ... provided there is a "rational" basis for the state to find that harm might otherwise result to the minor. ...

The parties have given insufficient consideration to the derivative power of local 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." ... The state may see "fit to insure [that] a particularly sensitive subject be left to the wisdom of the parents." ... 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. ...

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. A book may not be banned from a public school library in disregard of the requirements of the 14th Amendment.

Fourteenth Amendment.

The 14th Amendment to the Constitution of the United States prohibits the states from depriving "any person of life, liberty, or property, without due process of law ..." The 14th Amendment protects First Amendment liberties, including freedom of speech, against state infringement. ... First Amendment free speech is a fundamental individual liberty which no state may withhold without due process. ... The protections of the 14th Amendment extend to all "persons," including secondary school students. ... The procedural regularity required by the 14th Amendment constrains all creatures of the state, "boards of education not excepted." ... The duties of school boards must be exercised "consistently with federal constitutional requirements." ...

Arbitrary official interference with the free flow of information and ideas is unconstitutional. Public officials cannot exercise overbroad discretion to censor speech. ... [footnote: The Supreme Court has frequently condemned, because of their potential for selective suppression of ideas, licensing schemes lodging broad discretion in public officials to restrict particular forms of expression.] In order to avoid chilling legitimate speech-related conduct, governmental regulation of free speech must be limited by reasonably precise "ascertainable standards." ...

There is no more appropriate context than the present for 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 14th Amendment has been held to mandate that governmental units adhere to their own rules and regulations. ... 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...

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 their First Amendment rights. ... 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. ... Nothing that has as yet been brought to the attention of the court would warrant relaxation of these procedural standards in the library book-removal cases. [footnote: ... The banning of 365 Days, for which public funds had already been expended, without first reading or considering the overall quality of the censored expression, may be violative of the principle that discretionary official action regulating expression must be accompanied by rigorous procedural safeguards."...]

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. ... 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. ...

The identification of criteria considered by the Committee in determining to ban 365 Days is complicated by the utter absence of procedural ground rules [footnote: ... School personnel simply passed complaints along the "chain of command." ...] 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. [footnote: 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.] 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. [footnote: Measured by the criteria later adopted by the Committee itself, ... the Committee action banning 365 Days appears seriously deficient due to its procedural irregularity, arbitrariness, vagueness, and overbreadth.]

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." ... 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." ... The ban cannot be considered as "minimally intrusive" an infringement of First Amendment rights as could have been devised. ... 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 the book anywhere on school property, including buses.


Public Interest

The final prerequisite to preliminary injunctive relief implicates the public interest. ... The public interest carries considerable weight in these matters. The court must weigh any hindrance or furtherance of the public interest likely to result from interim injunctive relief.

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: ...:

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 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, 'the vigilant protection of constitutional freedoms is nowhere more vital than in the community of the American schools.' ... 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.' ...

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 their unconstitutional power." ... 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 the 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).

Dated at Bangor, Maine this 22d day of January, 1982.

Conrad K. Cyr United States District Judge

Vol. 01, Issue 19

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