# Seyfried v. Walton/Concurrence Rosenn

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Rosenn
ROSENN, Circuit Judge, concurring.
The issues raised in this appeal are complex, for they implicate the thorny tangle which results from the confrontation between the right of local school administrators to determine the content of their pupils' education and the first amendment rights of those very students in the secondary school setting. Although I agree with the majority that school authorities enjoy broad discretion in the making of decisions in curricular matters, I write separately to emphasize that their discretion is not unfettered and that courts have a duty to vindicate the complementary constitutional rights of students to express and to hear more than one point of view.
It is important at the outset to make clear the nature of the present challenge. Although the students assert that their right to free expression has been abridged, their challenge at its roots is directed not merely to a restriction of their freedom of expression but also to the school's right to bar their participation in a school-sponsored production of the play. It is not contended that the students subscribe to the Weltanschauung embodied in "Pippin" and wish to stage the play to give voice to their views. Thus, the instant dispute concerns the breadth of discretion enjoyed by school authorities to limit the exposure of their students to certain curricular material which the authorities believe to be unsuitable to their charges, and the proper role of the courts in superintending that exercise of discretion.
[p218] Local control of a school system's curriculum by school boards organized at a community level characterizes the traditional allocation of responsibility for the education of our youth in the United States. Accepting the wisdom of deferring to local school authorities regarding quotidian educational matters, "the courts have traditionally been reluctant to intrude upon the domain of educational affairs, not only in recognition of their lack of educational competence in such matters, but also out of respect for the autonomy of educational institutions." Developments in the Law-Academic Freedom, 81 Harv.L.Rev. 1045, 1050 (1968); see Comment, Challenging Ideological Exclusion of Curriculum Material: Rights of Students and Parents, 14 Harv.C.R.-C.L.L.Rev. 485, 487-88 (1979) (hereinafter Comment ). The Supreme Court has repeatedly given voice to this need for judicial deference "to the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards," concerning educational matters. See, e.g., Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 507, 89 S.C.t. 733, 737, 21 L. Ed. 2d 731 (1969); accord, Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.C.t. 266, 270, 21 L. Ed. 2d 228 (1968).
Other courts have also proved reluctant to interfere with the educational decisions of school officials. See, e.g., Zykan v. Warsaw Community School Corp., 631 F.2d 1300 (7th Cir. 1980); Cary v. Board of Education, 598 F.2d 535 (10th Cir. 1979); President's Council, District 25 v. Community School Board No. 25, 457 F.2d 289 (2d Cir.), cert. denied, 409 U.S. 998, 93 S.C.t. 308, 34 L. Ed. 2d 260 (1972). The simple fact that those decisions are usually governed by school administrators' social, political, and moral tastes is fully consistent with local control over primary and secondary education. Zykan v. Warsaw Community School Corp., supra, 631 F.2d at 1305-06.
At the same time, however, "(o)ur courts … 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." Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.C.t. 266, 270, 21 L. Ed. 2d 228 (1968); see, e.g., Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.C.t. 733, 21 L. Ed. 2d 731 (1969); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.C.t. 1178, 87 L. Ed. 1628 (1943); Meyer v. Nebraska, 262 U.S. 390, 43 S.C.t. 625, 67 L. Ed. 1042 (1923). And nowhere is " "(t)he vigilant protection of constitutional freedoms … more vital than in the community of American schools.' " Epperson v. Arkansas, supra, 393 U.S. at 104, 89 S.C.t. at 270 (quoting Shelton v. Tucker, 364 U.S. 479, 487, 81 S.C.t. 247, 251, 5 L. Ed. 2d 231 (1960)). These and other judicial decisions which were willing to intrude into the operation of school systems emphasize the essential role played by education in the intellectual and moral development of our youth, and the concomitant need to expose our youngsters "to that robust exchange of ideas which discovers truth "out of a multitude of tongues, (rather) than through any kind of authoritative selection.' " Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.C.t. 675, 683, 17 L. Ed. 2d 629 (1967).
Although many of the decisions regarding first amendment guarantees in the schoolhouse are concerned with the rights of students and teachers to express their views, see, e.g., Tinker v. Des Moines Independent Community School District, supra; James v. Board of Education, 461 F.2d 566 (2d Cir.), cert. denied, 409 U.S. 1042, 93 S.C.t. 529, 34 L. Ed. 2d 491 (1972), there has also emerged a corresponding right of students to challenge on first amendment grounds actions of school officials which circumscribe the range of ideas to which [p219] students are exposed. In addition to its foundation in basic first amendment expressive values, the right of students to object to overly narrow or ideological curriculum-related decisions finds support in the concept of "freedom to hear" recently clarified by the Supreme Court in Virginia State Board of Pharmacy v. Virginia Consumer Council, Inc., 425 U.S. 748, 96 S.C.t. 1817, 48 L. Ed. 2d 346 (1976); see President's Council, District 25 v. Community School Board No. 25, 409 U.S. 998, 999, 93 S.C.t. 308, 309, 34 L. Ed. 2d 260 (1972) (Douglas, J., dissenting from denial of certiorari); Zykan v. Warsaw Community School Corp., supra, 631 F.2d at 1304; Minarcini v. Strongville City School District, supra, 541 F.2d at 583; Comment, supra, at 513-17.
A recent district court decision from the Northern District of Mississippi addressed a more direct challenge to school officials' control of curriculum decisions. In Loewen v. Turnipseed, 488 F. Supp. 1138 (N.D.Miss.1980), students, their parents, and their teachers successfully challenged a decision of the Mississippi "textbook rating committee" not to purchase a particular textbook designed for a ninth grade course in Mississippi history. The plaintiffs argued that the excluded textbook presented a more complete view of the role of blacks in Mississippi. The court concluded, inter alia, that the students' first amendment rights to a free and open educational system had been abridged. Id. at 1152-54.
It is the inherent tension between these two essential functions, on the one hand exposing young minds to the clash of ideologies in the free marketplace of ideas, and on the other hand the need to provide our youth with a solid foundation of basic, moral values, that gives rise to the present dispute. Striking a balance between them is difficult; and not all distortions will require judicial intervention. The Supreme Court has acknowledged this tension:
   Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint…. By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate constitutional values. On the other hand, … as this Court said in Keyishian v. Board of Regents, the First Amendment "does not tolerate laws that cast a pall of orthodoxy over the classroom." 385 U.S. 589, 603, 87 S.C.t. 675, 683, 17 L. Ed. 2d 629 (1967) (footnote omitted).
Epperson v. Arkansas, 393 U.S. 97, 104-05, 89 S.C.t. 266, 270, 21 L. Ed. 2d 228 (1968). It remains for this and other courts to evolve criteria for determining when constitutional values are so sharply implicated that judicial intervention is necessary.
In attempting to reconcile these goals in a particular case, several observations can be made. First, the court can take judicial notice of the progressively higher levels of intellectual and emotional development of students in the later grades of secondary school. As a result, more deference should be shown school authorities' curricular decisions regarding grade school, and perhaps junior high school students, in the face of a challenge that a particular point of view [p220] has been excluded. High school students, in contrast, are at an age approaching both adulthood and franchise. As the Second Circuit has noted in a related context, "It would be foolhardy to shield our children from political debate and issues until the eve of their first venture into the voting booth. Schools must play an essential role in preparing their students to think and analyze and to recognize the demagogue." James v. Board of Education, 461 F.2d 566, 574 (2d Cir.), cert. denied, 409 U.S. 1042, 93 S.C.t. 529, 34 L. Ed. 2d 491 (1972).
A second consideration to be evaluated is the nature of the material, access to which the school authorities are attempting to restrict, and the basis for the restriction. Great deference should be accorded when material is deemed unsuited for youths, for example, because of its overt sexual references or because it is otherwise deemed vulgar and unsuited for youngsters. Local authorities have always enjoyed wide latitude in proscribing material which, although not obscene, because of its sexual content is deemed inappropriate for minors. See Ginsberg v. New York, 390 U.S. 629, 88 S.C.t. 1274, 20 L. Ed. 2d 195 (1968). In contrast, a court should have much less tolerance for any attempt [**18] to exclude a particular point of view from open consideration in the school. See Epperson v. Arkansas, 393 U.S. 97, 89 S.C.t. 266, 21 L. Ed. 2d 228 (1968). The evil to be avoided is the ideological indoctrination which would result from attempting to attain the laudable goal of instilling our youth with a set of moral values by barring their exposure to ideas inconsistent with those values. Again, the age of the students will be significant. A decision to limit the exposure of young adolescents, who have less developed critical skills, to works such as Mein Kampf, which express an ideology that school administrators find abhorrent, should normally remain undisturbed. See Comment, supra, at 524. The same would not be true if the students in question were high school seniors.
Weighing the pertinent considerations, the instant claim does not command the intervention of the courts. The school superintendent objected to production of "Pippin" not because of its ideas-a youth's search for the meaning of existence-but because of its explicit sexual overtones. School authorities should have more latitude in limiting the performance by their students in a school forum of a play which the authorities find vulgar and inappropriate because of sharp sexual overtones. Their acquiescence in such a performance might be construed as tacit approval of not only the performance but also the play's content.
No attempt has been made to restrict access to the play: two copies of the unedited script remain available in the school library. Nor is it alleged that discussion of the play or its subject matter has been restricted. In sum, the decision of the school authorities to prohibit production of "Pippin" in a high school forum because of its sexual overtones does not threaten to stifle the free exchange of ideas so as to warrant judicial interference with the decision of the school authorities.
I therefore agree that the judgment of the district court should be affirmed.

## Footnotes

* ↑ The district court found that participation in the school play "does not differ in principle from the selection of course curriculum," 512 F. Supp. at 238, a finding I accept as not clearly erroneous.
* ↑ In the present case a school superintendent overrode the decision of a dramatic arts teacher to produce "Pippin." The teacher has not challenged that action, and has not been in any way reprimanded for her decision. Thus neither the statutory and constitutional rights of teachers, acting at variance with the views of school administrators, to expose their students to certain views, nor a teacher's own constitutional right of free expression are before the court.
* ↑ Public education … "fulfills a most fundamental obligation of government to its constituency." Foley (v. Connelie, 435 U.S. 291, 297, 98 S.C.t. 1067, 1071, 55 L. Ed. 2d 287 (1978) ). The importance of public schools in the preparation of individuals for participation as citizens, and in the preservation of values on which our society rests, has long been recognized by our decisions…. Ambach v. Norwick, 441 U.S. 68, 76, 99 S.C.t. 1589, 1594, 60 L. Ed. 2d 49 (1979).
* ↑ Most of the decisions involve the right of school authorities to exclude or remove certain books from the school library. In general, those actions have been upheld when they related only to the inclusion of the books in the school library and when discussion of the subject matter covered by the books was not also proscribed. Compare Cary v. Board of Education, 598 F.2d 535, 544 (10th Cir. 1979) (teachers not prohibited from treating books in class "as examples of contemporary poetry, literature, or American masters") and President's Council, District 25 v. Community School Board No. 25, 457 F.2d 289, 292 (2d Cir.), cert. denied, 409 U.S. 998, 93 S.C.t. 308, 34 L. Ed. 2d 260 (1972) (removal of book to restricted shelf in library did not preclude discussion of subject covered by book in class) with Pico v. Board of Education, 638 F.2d 404, 436 (2d Cir. 1981), cert. granted, 454 U.S. 891, 102 S.C.t. 385, 70 L. Ed. 2d 205 (1981) (Newman, J., concurring) (allegation that removal of books "was designed to suppress ideas"), and Minarcini v. Strongsville City School District, 541 F.2d 577, 579 (6th Cir. 1976) (school board prohibited teacher and student discussion in class of books not approved by board).
* ↑ A school board's decision may be so blatantly aimed at curtailing a particular viewpoint that even a decision regarding the curriculum for young adolescents warrants judicial intervention. See Loewen v. Turnipseed, 488 F. Supp. 1138 (N.D.Miss.1980); note 4 supra.
* ↑ Of course it may sometimes be difficult to ascertain whether school officials have acted to suppress "politically unpopular ideas," Pico v. Board of Education, 646 F.2d 714 (2d Cir. 1981), cert. granted, -- - U.S. -- , 102 S.C.t. 385, 70 L. Ed. 2d -- (1981) (Newman, J., concurring in the denial of rehearing en banc ) or whether they sought merely to prevent students from encountering "obviously indecent and vulgar material." Id. at 716 (Mansfield, J., dissenting from denial of en banc consideration).