Pico v. Board of Education

646 F.2d 714, 7 Media L. Rep. (BNA) 1363

Opinions

NEWMAN, Circuit Judge

(concurring in the denial of rehearing en banc):

The authority of a school board to remove from school libraries vulgar and indecent materials because they are vulgar and indecent was upheld by this Court in President’s Council District 25 v. Community School Board, 457 F.2d 289 (2d Cir.), cert. denied, 409 U.S. 998, 93 S.Ct. 308, 34 L.Ed.2d 260 (1972), and recently reaffirmed in Bicknell v. Vergennes Union High School Board, 638 F.2d 438, (2d Cir. 1980). This case, though involving books some of which contain vulgar and indecent passages, was remanded for trial because of factually supported allegations (not present in President’s Council or Bicknell) that the motivation for the removal and the circumstances under which it occurred posed a sufficient threat to the free expression of ideas within the school community to establish a First Amendment violation. No school board need be deterred from removing vulgar and indecent materials when it confines its concern to vulgarity and indecency. The Board of the Vergennes Union High School took such action, and the complaint against it was dismissed without a trial. On the other hand, a school board is not free to select books for removal because they contain politically unpopular ideas and then expect to avoid a trial of factually supported First Amendment claims by pointing to the existence of vulgar and indecent language in some of those books.

Since the complaint remanded for trial differs significantly from President’s Council and Bicknell and since articulation of the standard for determining when politically motivated book removal violates the First Amendment, if undertaken by an en banc court, would be inappropriate in advance of fact-finding by the trial court, I concur in the denial of rehearing en banc.