The opinion
MANSFIELD, Circuit Judge
(dissenting):
I dissent. The majority unjustifiably overrules our sound decision in the indistinguishable case of 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.Ct. 308 , 34 L.Ed.2d 260 (1972), wherein we held that removal by school authorities from a school library of a book containing vulgarities and indecent matter on the ground that the book was educationally inappropriate for school children did not infringe any First Amendment rights.
In my view the majority’s action represents an unwarranted interference with the rational exercise by the Board of Education of the Island Trees Union Free School District (the Board) of its statutory duty to prescribe appropriate materials for the education of the children in the district. Despite undisputed evidence that all but one of the eight books discontinued by the Board in this case contained indecent matter, vulgarities, profanities, explicit sexual descriptions or allusions, sexual perversion, or disparaging remarks about Blacks, Jews or Christ, and despite the freedom of the school’s faculty and students to discuss in or out of school the ideas contained in the discontinued books, the majority would find a violation of the First Amendment based on possible violation of some vague, undefined rights of expression or on possible suppression of ideas on the part of secondary school children attending the school. Absent some evidence that speech or ideas by anyone are likely to be suppressed I believe this court should keep its hands off. The effect of the majority’s decision is improperly to substitute a court’s view of what student curriculum is appropriate for that of the Board.
The majority takes some liberties with the record, substituting suspicions for undisputed evidence. In the first place the best evidence of whether the eight discontinued books are unsuitable for the education of secondary school children is the text of the books themselves rather than the conclusory editorial comments of third parties which Judge Sifton cites while studiously avoiding quotation of the actual text objected to by the Board as indecent and improper. Accordingly, adopting the Supreme Court’s practice in similar cases, see e. g. Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 , 98 S.Ct. 3026 , 57 L.Ed.2d 1073 (1978), I have set forth in the margin those portions of the text of the books which led the Board to investigate their suitability as educational tools and to discontinue eight of the books. 1 *420 Despite Judge Sifton’s conclusion that the excerpts leave “no great sense of confidence in the literary accuracy of the quotations,” I find, upon reading the books, that except *421 for minor errors the quotations are indeed accurate. I also note that some of the books contain additional indecent statements not found in the original excerpts.
*422 The suggestion by Judge Sifton that the Board was engaged in “an unusual and irregular intervention” into the operation of the school’s library by persons not “concerned with their contents” flies in the face of the uncontroverted facts and the Board’s duties under New York law. Under N.Y. Education Law § 1709 a local school board such as the Board here has both the power and duty to prescribe the books to be used in its schools. 2 3There is also no support for statements by Judge Sifton that the Board acted arbitrarily, impulsively, confusingly, incoherently, erratically, dilatorily or in a “free-swinging” manner. This was no bookburning or banning on the part of zealous intermeddlers. Nor was its action in disregard of the rights and views of others. On the contrary, the Board acted carefully, conscientiously and responsibly after according due process to all parties concerned.
The Board’s first step was not to remove the books permanently, as the majority suggests, but to transfer them to the School’s Residence Reference Room for review by the Board. The decision to do this was not made until February 26, 1976, after all members had seen the objectionable excerpts and some had read at least a few of the books. The actual transfer within the confines of the school occurred on March 3, 1976 after the President of the Board (Ahrens), implementing the Board’s decision, requested the school’s Superintendent Richard G. Morrow to have the books taken “to the Board’s office at the rear of the Residents Reference Room in Stokes for review by the Board,” (emphasis supplied). In view of the excerpts (quoted in Footnote 1, supra), the impressions gained by members who had read some of the books, and the need for all seven members of the Board to read all of the books in order to form their judgments (every one of the limited number of copies would obviously be needed for the purpose), the transfer of the books was eminently sensible. The Board’s appointment of an eight-person advisory commit *423 tee to read the books and make recommendations and the Board’s later vote continuing two of the ten books as part of the curriculum demonstrate that the March 3rd action was far from final.
That the Board did not prejudge the educational suitability of the books is attested to by its decision not to take any action until it had the views of others, including a cross-section of the school staff and the community. On March 30, 1976, it held a public meeting at which its seven members voted unanimously to appoint an eight-person committee comprised of four members of the school staff and four parents to review and make recommendations regarding the educational suitability of the books and whether they were in good taste, appropriate for the age and grade level, and relevant. 3 In early April it appointed the Committee. The four community members consisted of a recently graduated student attending college, a former PTA president, a former Board president and a mailman; the four staff members were an English teacher, a social studies teacher, a high school principal and an elementary school principal. The appointment of the Committee had been recommended and was approved by the School Superintendent, Richard G. Morrow.
During the weeks that followed the eight Committee members read all but one of the 10 books under consideration, 4 held a series of meetings, and on July 1, 1976, submitted its report to the Board. Its recommendations were as follows: (1) that The Fixer be “returned to the Modern Literature curriculum, subject to parental approval”; (2) that four others, Laughing Boy, Black Boy, Go Ask Alice and Best Short Stories by Negro Writers, be “retained” (i. e. kept in the library); (3) that two books, The Naked Ape and Down These Mean Streets, be “removed from the library” and (4) Slaughterhouse Five be “put on a restricted shelf.” Except for three books on which the 8-per-son Committee’s vote was unanimous, its votes were divided, ranging from 7-1 to 5-3. With respect to two books, Soul on Ice and A Hero Ain’t Nothing but a Sandwich, the Committee could not agree, four voting in each case for retention and four for removal. The Committee was unable to make a recommendation with respect to the tenth book, A Reader for Writers because not all members had read it.
On July 28,1976, the seven-person Board, having had a chance to review the books again in light of the Committee’s recommendations, made its decision with respect to each of the 10 books under consideration. The Board decided: (1) unanimously to retain Laughing Boy, (2) by a 6-1 vote to retain Black Boy on a restricted basis, (3) by a unanimous vote to discontinue Slaughterhouse Five, The Naked Ape, Down These Mean Streets, Soul on Ice, Best Short Stories by Negro Writers and A Reader for Writers, from use in the School’s curriculum, (4) by a 6-1 vote to remove Go Ask Alice from use in the curriculum, one member voting to retain it on a restricted basis, *424 (5) by a 5-2 vote to remove A Hero Ain’t Nothing But a Sandwich from use in the curriculum, 2 members (including Martin) voting to retain it on a restricted basis, (6) by a 5-3 vote to remove The Fixer from use in the curriculum, 2 members (including Martin) voting to retain it on a restricted basis and 1 member to retain it with no restrictions.
The retention of two of the ten books by the Board and its divided vote with respect to three is in my view wholly inconsistent with a claim that the Board acted erratically, arbitrarily, or in a “free-swinging style.” Since the Board could not delegate its statutory duty and the Committee’s recommendations were advisory only, the Board was entitled to differ from the Committee’s recommendations, provided a rational basis existed for its doing so. Five members of the Board later attested to such a basis when they swore, Similar, more detailed affidavits and depositions were furnished by Richard Ahrens, President of the Board and Frank Martin, Vice-President (who, after reading the books, voted in favor of retention of some which other members voted to remove from the curriculum). Specific reasons have been given by each for his action with respect to each book. Martin voted to place on the restricted list books in which vulgarity appeared reasonably necessary to the story line but to remove those that indulged in vulgarity, deviant behavior and explicit sex scenes solely for their own sake. Mr. Ahrens objected to the degrading treatment of blacks and the vulgarity in Soul on Ice, the poor grammar in A Hero Ain’t Nothing But a Sandwich, glorification of sex and drugs in Go Ask Alice, the explicitness of sex in The Naked Ape, which violated the Board’s policy against teaching sex education, the vulgarities and anti-Semitism in The Fixer and the sadism of Slaughterhouse Five.
“2. That we have read each of the books reviewed by the committee referred to in the affidavits of Mr. Martin and Mr. Ahrens.
3. That we each thoroughly considered the recommendations of such committee, the opinions of the superintendent of schools and of members of the community before casting our respective votes with respect to these books (Exhibit ‘A-15’).
4. That our reasons for casting votes to remove or restrict certain volumes were that they contained obscenities, were irrelevant to our curriculum, were inappropriate and were in bad taste. They contained foul language, gross sexual allusions and language that just wasn’t necessary to the story line. Our votes were, however, split on certain works as a result of varying degrees of concern about the relevancy, educational applicability and degree of bad taste exhibited.
5. That we feel we represented the basic values of the community in our actions and that we have exercised our duties in an intelligent, thoughtful and reasonable manner.”
DISCUSSION
The general principles governing judicial intervention into secondary school education for the purpose of protecting First Amendment rights of students and teachers are fairly well settled. Students do not surrender all of their individual rights by submitting to the public educational process. Their speech and free exchange of ideas will be protected as long as they do not interfere with, obstruct or disrupt the functioning of the teaching system, including the choice of curriculum and methods prescribed by those vested with the duty of providing them with a formal education. For instance, a student may not be punished for refusing to salute the American flag, West Virginia State Board of Education v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178 , 87 L.Ed. 1628 (1943), or wearing an armband in symbolic opposition to Viet Nam hostilities, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969). Nor may he be barred from off-campus printing and distribution of an indecent publication, Thomas v. Board of Education, *425 607 F.2d 1043 (2nd Cir. 1979). Similarly, an instructor may not be disciplined or barred from teaching because he symbolically expresses his personal political views by wearing a black armband in class, James v. Board of Education, 461 F.2d 566 (2nd Cir.), cert. denied 409 U.S. 1042 , 93 S.Ct. 529 , 34 L.Ed.2d 491 (1972), because he is labelled a “subversive,” Keyishian v. Board of Regents, 385 U.S. 589 , 87 S.Ct. 675 , 17 L.Ed.2d 629 (1967), or because he or she refuses to salute the flag, Russo v. Central School District No. 1, 469 F.2d 623 (2nd Cir. 1972).
On the other hand, the process of public education, if it is to succeed, mandates that “school officials must have some latitude within the school in punishing and prohibiting ordinarily protected speech both out of regard for fellow students who constitute a captive audience, and in recognition of the fact that the school has a substantial educational interest in avoiding the impression that it has authorized a specific expression,” Thomas, supra, 607 F.2d at 1049. “School authorities can regulate indecent language because its circulation on school grounds undermines their responsibility to try to promote standards of decency and civility among school children,” Id. 1057 (Newman, J., concurring).
Public secondary school education can function effectively only if school boards are accorded rather broad discretionary authority to determine the subjects to be taught, the curriculum deemed most suitable, the methods of teaching to be employed, and the disciplines to be followed by teachers and students within the school, including the educational tools to be used, whether those tools be test tubes in the laboratory or books in the library. If each student were free to insist that the curriculum, including library books, be changed or augmented to suit his ideas or those of his parents, chaos would ensue. The result would be no different than if a student were permitted to speak out in class whenever he wished or to refrain from studying prescribed subjects that were unappealing to him. Such conduct does not fall within protected First Amendment rights. Tinker, supra, 607 F.2d at 1049.
For these reasons the Supreme Court emphasized in Epperson v. Arkansas, 393 U.S. 97, 104 , 89 S.Ct. 266, 270 , 21 L.Ed.2d 228 (1968) that
“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 basic constitutional values.”
As the Court had warned in Abington School Disk v. Schempp, 374 U.S. 203, 300-301 , 83 S.Ct. 1560, 1612-1613 , 10 L.Ed.2d 844 (1963) (Brennan, J., concurring):
“We should heed Mr. Justice Jackson’s caveat that any attempt by this Court to announce curricular standards would be ‘to decree a uniform, rigid and, if we are consistent, an unchanging standard for countless school boards representing and serving highly localized groups which not only differ from each other but which themselves from time to time change attitudes.’ ” Illinois ex rel. McCollum v. Board of Education, supra, [ 333 U.S. 203 ] at 237, 68 S.Ct. 461 at 477 , 92 L.Ed. 649 .
Recognizing the deference that must be paid to school authorities in such matters, the Court in Epperson, supra, established as a standard that we may not intervene in decisions of school systems unless they “directly and sharply implicate basic constitutional values,” 393 U.S. at 104, 89 S.Ct. at 270 (emphasis supplied). This test clearly requires, as a condition precedent to judicial intervention, a showing that the school’s action (1) violates the students’ right of expression and (2) is not reasonably related or necessary to the performance by the school of its educational function. A school board’s decision as to curriculum, moreover, may properly reflect local community views and values as to educational content and analysis, James v. Board of Education, 461 F.2d 566, 573 (2nd Cir.), cert. denied, 409 *426 U.S. 1042 , 93 S.Ct. 529 , 34 L.Ed.2d 491 (1972):
“The interest of the state in promoting the efficient operation of its schools extends beyond merely securing an orderly classroom. Although the pros and cons of progressive education are debated heatedly, 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. ‘[S]ome measure of public regulation is inherent in the very provision of public education.’ Note, Developments in the Law-Academic Freedom, 81 Harv.L.Rev. 1045, 1053 (1968). Accordingly, courts consistently have affirmed that curriculum controls belong to the political process and local school authorities.” (Emphasis supplied)
This inherent function of school administration was relied on by the Seventh Circuit in its recent opinion in Zykan v. Warsaw Community School Corp., 631 F.2d 1300 (1980), which held that actions similar to those involved in this case (including the removal of Go Ask Alice from the library) simply did not rise to the level of constitutional violations. The court said, it is “permissible and appropriate for local boards to make educational decisions based upon their personal social, political and moral views.” At 1305.
Recognizing these principles, this circuit upheld a school board’s prohibition or regulation of the use on school property of expressions and subject matter that would be fully protected outside the school premises. In President’s Council, District 25 v. Community School Board, No. 25, 457 F.2d 289 (2nd Cir.), cert. denied, 409 U.S. 998 , 93 S.Ct. 308 , 34 L.Ed.2d 260 (1972), for instance, we upheld the right of a community school board to remove from all junior high school libraries one of the books that was discontinued by the Board here, Down These Mean Streets by Piri Thomas. 5 In holding that the board’s removal of the book did not impinge on any basic constitutional rights, we stated:
“Since we are dealing not with the collection of a public book store but with the library of a public junior high school, evidently some authorized person or body has to make a determination as to what the library collection will be. It is predictable that no matter what choice of books may be made by whatever segment of academe, some other person or group may well dissent. The ensuing shouts of book burning, witch hunting and violation of academic freedom hardly elevate this intramural strife to first amendment constitutional proportions. If it did, there would be a constant intrusion of the judiciary into the internal affairs of the school. Academic freedom is scarcely fostered by the intrusion of three or even nine federal jurists making curriculum or library choices for the community of scholars. When the court has intervened, the circumstances have been rare and extreme and the issues presented totally distinct from those we have here. See Developments in the Law-Academic Freedom, 81 Harv.L.Rev. 1045, 1051-54 (1968).... Here, patently we have no religious establishment or free exercise question, and neither do we have the banning of the teaching of any theory or doctrine. The problems of the youth in the ghetto, crime, drugs and violence have not been placed off limits by the Board. A book has been removed but the librarian has not been penalized, and the teacher is still free to discuss the Barrio and its problems in the classroom. . .. The intrusion of the Board here upon any first amendment constitutional right of *427 any category of plaintiffs is not only not ‘sharp’ or ‘direct’, it is minuscule.” 457 F.2d at 292 .
In East Hartford Education Association et al. v. Board of Education, 562 F.2d 838, 857 (2nd Cir. 1977) (en banc), we upheld a school board’s right to enforce a dress code requirement for teachers, stating:
“Federal courts must refrain, in most instances, from interfering with the decision of school authorities. Even though decisions may appear foolish or unwise, a federal court may not overturn them unless the standard set forth in Epperson is met. The Supreme Court recently emphasized this point in Wood v. Strickland, 420 U.S. 308 , 95 S.Ct. 992 , 43 L.Ed.2d 214 (1975), in which a high school's summary disciplinary proceedings were challenged on due process grounds:
It is not the role of the federal courts to set aside decisions of schools administrators which the court may view as lacking a basis in wisdom or compassion.... The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members, and § 1983 was not intended to be a vehicle for federal-court corrections of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees.”
Id. 420 U.S. at 326 , 95 S.Ct. at 1003 (citations omitted).
Similarly in Eisner v. Stamford Board of Education, 440 F.2d 803 (2nd Cir. 1971) we recognized that school authorities may adopt a policy prohibiting distribution of literature on school property without prior permission from the school administration and in Trachtman v. Anker, 563 F.2d 512 (2nd Cir. 1977), cert. denied, 435. U.S. 925, 98 S.Ct. 1491 , 55 L.Ed.2d 519 (1978) we upheld school officials’ refusal to allow distribution within the school of a sexually explicit questionnaire prepared by a student group.
Prohibiting exposure of children to indecent language has been upheld by the Supreme Court not only on school premises but in other locations as well, even where the unique demands of the educational process did not play a part. In Ginsberg v. New York, 390 U.S. 629 , 88 S.Ct. 1274 , 20 L.Ed.2d 195 (1968), for instance, the Court held that the State of New York could constitutionally prohibit the sale to minors under 17 years of sex magazines that would not be obscene for adults, based on the state’s interest in protecting the children’s welfare and safeguarding them from abuses. And in Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 , 98 S.Ct. 3026 , 57 L.Ed.2d 1073 (1978), the Court upheld the FCC’s authority to impose administrative sanctions on broadcasting of indecent language. In his plurality opinion Justice Stevens based the decision not only on the ground that the ideas expressed in indecent language could have been conveyed by less offensive language but also on the ground that the government had a proper interest in protecting minors from exposure to indecencies. 438 U.S. at 749-50 , 98 S.Ct. at 3040, 3041. As we said in Thomas, supra, 607 F.2d at 1057 (Newman, J., concurring),
“When, as in this case, the audience at which a publication is specifically directed consists solely of high school students, and distribution is demanded at a school building attended by students down to the age of 11, First Amendment protection is not available for language that is indisputably indecent. If the F.C.C. can act to keep indecent language off the afternoon airwaves, a school can act to keep indecent language from circulating on high school grounds.”
Application of the foregoing principles mandates an affirmance of the Board’s action in the present base. Whatever may be a judge’s personal view as to the wisdom of its decision, the Board acted on rational and specific grounds relevant to the education and welfare of the school children within its jurisdiction, and it did so fairly and conscientiously. It discontinued the handful of books because all but one contain either vulgar and indecent language, profanities, explicit sex, sexual perversion, poor grammar, glorification of sex and drugs, or anti- *428 Jewish, anti-Black, or anti-Christian remarks. 6 In the Board’s view the books lacked sufficient redeeming value to outweigh the threatened harm from the objectionable portions.
The Board’s action does not hinder or destroy anybody’s rights of free expression. The Board did not seek to inculcate students with any particular social or political views (e. g., legalized abortion or anti-abortion, adherence to the views of any political party or religion, promotion of the Equal Rights Amendment or the like). No free exchange of ideas was suppressed. No one was imposing views, whether labelled “orthodox” or otherwise, on anybody else. No one has been or will be disciplined as a result of the removal of the books. Nor will anyone be denied an education in line with basic community values. 7 Both parties agree that teachers and students are free to discuss and comment on the themes and ideas of the books in class or on school premises. 8 Students may also be able to purchase the books outside of school or borrow them from a public library. In short there are no First Amendment or other constitutional interests at stake, because, as the Seventh Circuit said in Zykan:
“the rule [is] that complaints filed by secondary school students to contest the educational decisions of local authorities are sometimes cognizable but generally must cross a relatively high threshold before entering upon the field of a constitutional claim suitable for federal court litigation. Such a balance of legal interests means that panels such as the Warsaw School Board will be permitted to make even ill advised and imprudent decisions without the risk of judicial interference. Nothing in these principles suggests that the courts should condone short-sighted board decision-making. But nothing in the Constitution permits the courts to interfere with local educational discretion until local authorities begin to substitute rigid and exclusive indoctrination for the mere exercise of their prerogative to make pedagogic choices regarding matters of legitimate dispute.” At 1306.
Here we do not find any effort by school authorities to suppress speech or ideas on the part of teachers or pupils or to force them to “speak” against their will, such as existed in Tinker, Epperson, West Virginia State Board of Education, Keyishian, James, Thomas and Eisner, supra, or any ban on teaching or expressing certain views *429 essential to a basic education, such as occurred in Epperson, supra (theory of evolution) and Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1922) (statute prohibiting teaching of any foreign language to grades lower than the eighth). The handful of books discontinued by the Board leaves on the school’s shelves hundreds of volumes for the students’ edification and learning. The action therefore does not create any “pall of orthodoxy” or impermissible indoctrination such as might exist if exchange of ideas between teachers and pupils were prohibited. The ideas expressed in the removed books may also be freely discussed, in or out of the classroom, without cusing the profanities, vulgarities, and indecencies objected to by the Board. As Justice Stevens stated in FCC v. Pacifica Foundation, supra, 438 U.S. at 743, n.18 , 98 S.Ct. at 3037: “A requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed,by the use of less offensive language.”
For these reasons, I find no constitutional infringement of individual rights of anyone in the removal of a handful of books containing indecent expressions. As Judge Mulligan pointed out in President’s Council, supra, 457 F.2d 293 :
“There is here no problem of freedom of speech or the expression of opinions on the part of parents, teachers, students or librarians. As we have pointed out, the discussion of the book or the problems which it encompasses or the ideas it espouses have not been prohibited by the Board’s action in removing the book.”
The same may be said of the present case. There is no legally significant distinction between this case and President’s Council, supra, where we held that the removal from the school library by school authorities of a book containing vulgar language and explicit sexual allusions did not sharply and directly infringe upon freedom of speech and thought within the meaning of Epperson . That holding represents the law of this Circuit, by which we are bound. The suggestion that President’s Council may be distinguished on the ground that in the present case eight of the school’s hundreds of books were withdrawn (2 of the original 10 were continued) instead of the one in that case is unpersuasive, absent some evidence of inhibition of free expression within the school, of which there is none. Even assuming a First Amendment interest in gaining general access to the information in instructional material, the loss here is de minimis.
Nor has President’s Council been weakened in any way by the Supreme Court’s later decision in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 , 96 S.Ct. 1817 , 48 L.Ed.2d 346 (1976), which upheld the right to receive information as the “reciprocal right of the speaker.” Here no speaker exists claiming a constitutional right to address the students with respect to the text of the removed books unless it is the teachers, who are not prevented from speaking on the subject matter. The publishers and authors of the books do not claim any constitutional right mandating use of their books in the school. The only persons having the right to choose the books are the members of the Board, who have made their decision on rational grounds. Since under Virginia State Board the right of students to receive information is no greater than that of the speaker to furnish it, the decision has no application to the facts of this case.
The reasons advanced by Judges Sifton and Newman for not following President’s Council are curious, vague and unsupported by the record. At one point Judge Sifton states (p. 414) that the Board’s discontinuance of the eight books was impermissible as “an unusual and irregular intervention in the school libraries’ operations by persons not routinely concerned with their contents.” The simple answer is that § 1709 of the New York Education Law expressly imposes a duty on the Board to be concerned with the books to be used by school children within its jurisdiction,-indeed, to prescribe those books. At another point (p. *430 414) he suggests that the Board’s action was ambiguous, overbroad, or indefinite, and that a board may not act without an adequate definition of the “scope” of its action. But here the action was specific, being limited to 8 books, and the scope of and reasons for the action have been clearly explained. The Board acted because of the patently indecent matter in almost all of the books, quoted above in Footnote 1. It is difficult to conceive of a more specific description of the scope and basis of the action at issue. At still another point (p. 415) it is suggested that the book removal was improperly motivated, expressing “an official policy with regard to God and country of uncertain and indefinite content,” whatever this means. But the undisputed evidence of the motivation for the Board’s action was the perfectly permissible ground that the books were indecent, in bad taste, and unsuitable for educational purposes. If by “official policy” Judge Sifton means an expression of community values, we have recognized this as a valid ground for action by school authorities. James v. Board of Education, supra, 461 F.2d at 573 ; see also, Zykan, supra, 631 F.2d at 1305.
In an apparent shift of tactics Judge Sifton next concedes (p. 416) that “[c]ourts cannot prohibit and, indeed, should encourage, within limits, the thoughtful application [by school authorities] of personal standards of taste and morality and of political belief in the performance of governmental functions” but that the action here must nevertheless be condemned because of procedural irregularity, stating that the Board acted in an “erratic, arbitrary and freewheeling manner” which lacked “precision of regulation” (p. 415). The record here is wholly to the contrary. From the outset the Board made clear that its investigation into the educational suitability of the books was prompted by the excerpts of indecent matter quoted in Footnote 1. The initial transfer of the books from the school library to the Board Room was solely for the purpose of review to determine whether the books should be discontinued.
Nor do I find support in the record for Judge Sifton’s statements that there was “confusion” and “incoherence” on the part of the Board as to the reasons the books were being removed, that the matter was pursued by the Board in an “informal or dilatory manner,” that there was an “ex post facto appointment of a review committee”, that there was “strong opposition of professional personnel, including the District Superintendent”, and that some of the books were appropriate for educational purposes because they were written by “recognized authors”. The reasons for discontinuance of the books have been clearly stated by the Board members and are supported by the text of the books themselves. There was nothing dilatory, informal or unfair about the procedure adopted for determining whether the books should be discontinued. The initial removal on March 3, 1976, was solely for the purpose of enabling the Board to read and review the books, and did not represent a discontinuance of them as part of the curriculum. The period required to enable the 7-person Board and the 8-person Committee to read the few available copies and for the Board to reach a final decision with respect to the educational suitability of the books was reasonable. There is no evidence that during this period any faculty or students needed the books for educational purposes. Indeed, for at least a month and a half of the period New York public schools were not in session.
Nor was the appointment of the Committee “ex post facto.” Although some Board members, after reading some of the books, had expressed the view that the books were inappropriate, the Board did not make a final decision until July 28, 1976, at which time it demonstrated its open-mindedness by deciding that two volumes, Laughing Boy and Black Boy, should be retained as part of the curriculum and at least three Board members, including Vice-President Martin, changed their initially expressed views as to others. There was nothing irrational about the Board’s refusal to accept some of the Committee’s recommendations. The procedure by which the Board reached its decisions was eminently fair, final action *431 being taken only after much debate, public meetings, and receipt of a report from the specially-appointed Committee. Lastly, although we may differ as to the merits of the Board’s action, its rationality is manifest, being based on the text and contents of the books themselves, which the majority studiously avoids discussing. There was thus no impropriety in the procedures used by the Board to reach its decision.
For several reasons I cannot agree with Judge Newman’s view that the case should be remanded for a trial to determine whether the Board’s action was a “politically motivated effort to suppress ideas”. In the first place, the term “politically motivated” is amorphous. If this phrase means a desire to implement the Board’s conservative philosophy with respect to educational policies in the choice of books for the school’s library, there is nothing constitutionally impermissible about the Board’s adopting such a view, which apparently accords with the views of the community of the Island Trees Union Free School District. Zykan, supra, 631 F.2d at 1305. Those who disagree may avail themselves of democratic election processes, which they apparently have done without success. The evidence, moreover, is clear that the injection of the “book issue” into the election of Board members and teacher labor disputes was not initiated by the Board but by the media and persons who disagreed with the Board’s policy. For a federal court to inject itself into this type of local imbroglio is in my view unwise.
The important fact is not whether the Board’s decision was “politically” motivated, whatever that means, but whether the discontinuance of the eight books threatens to suppress any discussion of ideas by students or teachers. On this issue the evidence is overwhelming, if not conclusive, that no ideas are being suppressed. Removal of a few books and denial of self-expression by a student body are separate concepts. Both sides agree that students and teachers remain free to discuss the ideas in the books.
Even if the Board’s motivation were a factor, and I doubt whether it plays any material role in this case, the quoted texts from the books, the Board’s contemporaneous expressions, and the later affidavits of its members, none of which were refuted as required by Rule 56(e), F.R.Civ.P., 9 demonstrate beyond cavil that the Board acted on rational grounds and not with the purpose of suppressing any ideas.
Appellants’ reliance on Minarcini v. Strongsville City School District, 541 F.2d 577 (6th Cir. 1976), which refused to follow President’s Council , is misplaced. To the extent that Minarcini relied on the intervening Supreme Court decision in Virginia State Board of Pharmacy, supra, I have noted that since the publishers and authors of the removed books have and can claim no constitutional right to maintenance of their books in the School library, no reciprocal Virginia State Board right on the part of students to receive the books exists and that decision does not apply here. Moreover, the Minarcini court’s reasoning that, although a school board may lawfully refuse to acquire a book for a school library it may not remove a book once acquired, is logically flawed. If a school board has the right to select a book to be placed on school library shelves, and neither of my brothers question that right, it has an equal right to remove them. As Judge Mulligan aptly stated in President’s Council , “the concept of a book acquiring tenure by shelving is indeed novel and unsupportable under any theory of constitutional law we can dis *432 cover,” 457 F.2d at 293 . Accord, Zykan, supra, 631 F.2d at 1308. A school board may remove a book upon rationally concluding that it made a mistake in acquiring the book in the first place.
In short, the First Amendment entitles students to reasonable freedom of expression but not to freedom from what some may consider to be excessively moralistic or conservative selection by school authorities of library books to be used as educational tools. A secondary school authority’s regulatory function includes the power to refuse to continue in the school’s library collection books that are rationally found unsuitable for educational purpose. This action does not violate any First Amendment rights of the student body. I would therefore affirm Judge Pratt’s decision.
. The excerpts which led the Board to look into the educational suitability of the books in question are set out (with minor corrections after comparison with the text of the books themselves) below. The pagination and the underlinings are retained from the original report used by the board. In newer editions of some of the books, the quotes appear at different pages.
1) SOUL ON ICE by Eldridge Cleaver PAGE QUOTE
157-158 “... There are white men who will pay you to fuck their wives. They approach you and say, ‘How would you like to fuck a white woman?’ ‘What is this?’ you ask. ‘On the up-and-up,’ he assures you. ‘It’s all right. She’s my wife. She needs black rod, is all. She has to have it. It’s like a medicine or drug to her. She has to have it. I’ll pay you. It’s all on the level, no trick involved. Interested?’ You go with him and he drives you to their home. The three of you go into the bedroom. There is a certain type who will leave you and his wife alone and tell you to pile her real good. After it is all over, he will pay you and drive you to *420 wherever you want to go. Then there are some who like to peep at you through a keyhole and watch you have his woman, or peep at you through a window, or lie under the bed and listen to the creaking of the bed as you work out. There is another type who likes to masturbate while he stands beside the bed and watches you pile her. There is the type who likes to eat his woman up after you get through piling her. And there is the type who only wants you to pile her for a little while, just long enough to thaw her out and kick her motor over and arouse her to heat, then he wants you to jump off real quick and he will jump onto her and together they can make it from there by themselves.”
2) A HERO AIN’T NOTHING BUT A SANDWICH by Alice Childress
PAGE QUOTE
10 “Hell, no! Fuck the society.
64-65 “The hell with the junkie, the wino, the capitalist, the welfare checks, the world . . . yeah, and fuck you too!”
75 -76 “They can have back the spread and curtains, I’m too old for them fuckin bunnies anyway.”
3) THE FIXER by Bernard Malamud PAGE QUOTE
52 “What do you think goes on in the wagon at night: Are the drivers on their knees fucking their mothers?”
90 “Fuck yourself, said the blinker, etc.” 92 “Who else would do anything like that but a motherfucking Zhid?”
146 “No more noise out of you or I’ll shoot your Jew cock off.”
189 “Also there’s a lot of fucking in the Old Testament, so how is that religious?”
192 “You better go fuck yourself, Bok, said Kogin, I’m onto your Jew tricks.”
215 “Ding-dong, giddyap. A Jew’s cock's in the devil’s hock.”
216 “You cocksucker Zhid, I ought to make you lick it up off the floor.”
4) GO ASK ALICE by Anonymous PAGE QUOTE
31 “I wonder if sex without acid could be so exciting, so wonderful, so indescribable. I always thought it just took a minute, or that it would be like dogs mating.”
47 “Chris and I walked into Richie and Ted’s apartment to find the bastards stoned and making love to each other .. . low class queer.”
81 “shitty, goddamned, pissing, ass, goddamned beJesus, screwing life’s, ass, shit. Doris was ten and had humped with who knows how many men in between ... her current stepfather started having sex with her but good . .. sonofabitch balling her” 83 “but now when I face a girl its like facing a boy. I get all excited and turned on. I want to screw with the girl....”
84 “I’d rather screw with a guy .. . sometimes I want one of the girls to kiss me. I want her to touch me, to have her sleep under me.”
84 “Another day, another blow job ... If I don’t give Big Ass a blow he’ll cut off my supply . . . and LittleJacon is yelling, ‘Mama, Daddy can’t come now. He’s humping Carla.’ ”
85 “Shit, goddamn, goddamn prick, son-of-a-bitch, ass, pissed, bastard, goddamn, bullshit
94 “I hope you have a nice orgasm with your dog tonight.”
110 “You fucking Miss Polly pure
117 “Then he said that all I needed was a good fuck.”
146 “It might be great because I’m practically a virgin in the sense that I’ve never had sex except when I’ve been stoned... . ”
5) SLAUGHTERHOUSE FIVE by Kurt Vonnegut, Jr.
PAGE QUOTE
29 “ ‘Get out of the road, you dumb motherfucker.’ The last word was still a novelty in the speech of white people in 1944. It was fresh and astonishing to Billy, who had never fucked anybody ...”
32 “You stake a guy out on an anthill in the desert-see? He’s facing upward, and you put honey all over his balls and pecker, and you cut off his eyelids so he has to stare at the sun till he dies.”
34 “He had a prophylactic kit containing two tough condoms ‘For the prevention of disease only!’ ... He had a dirty picture of a woman attempting sexual intercourse with a Shetland pony."
94 & 95 “But the Gospels actually taught this: Before you kill somebody, make absolutely sure he isn’t well connected .. . The flaw in the Christ stories, said the visitor from outer space, was that Christ who didn’t look like much, was actually the son of the Most Powerful Being in the Universe. Readers understood that, so, when they came to the crucifixion, they naturally thought . . Oh boy-they sure picked the wrong guy to lynch this time! And that thought had a brother: There are right people to lynch. People not well connected .... The visitor from outer space made a gift to Earth of a new Gospel. In it, Jesus really WAS a nobody, and a pain in the neck to a lot of people with better connections than he had .... So the people amused themselves one day by nailing him to a cross and planting the cross in the ground. There couldn’t possibly be any repercussions, the lynchers thought .. since the new Gospel hammered home again and again what a nobody Jesus was. And then just before the nobody died .... The voice of God came *421 crashing down. He told the people that he was adopting the bum as his son ... God said this: From this moment on, He will punish horribly anybody who torments a bum who has no connections."
99 “They told him that there could be no Earthling babies without male homosexuals. There could be babies without female homosexuals.”
120 “Why don’t you go fuck yourself? Don’t think 1 haven’t tried . . he was going to have revenge, and that revenge was sweet ... It’s the sweetest thing there is, said Lazzaro. People fuck with me, he said, and Jesus Christ are they ever fucking sorry.” 122 “And he’ll pull out a gun and shoot his pecker off. The stranger’ll let him think a couple of seconds about who Paul Lazzaro is and what life’s gonna be like without a pecker. Then he’ll shoot him once in the guts and walk away. ... He died on account of this silly cocksucker here. So I promised him I’d have this silly cocksucker shot after the war.”
134 “In my prison cell I sit ... With my britches full of shit, And my balls are bouncing gently on the floor. And I see the bloody snag when she bit me in the bag ... Oh, I’ll never fuck a Polack any more.”
173 “And the peckers of the young men would still be semierect, and their muscles would be bulging like cannonballs."
175 “They didn’t have hard-ons . . . Everybody else did.”
177 “The magazine, which was published for lonesome men to jerk off to."
178 “and one critic said. ... ‘To describe blow-jobs artistically.’ ”
6) THE BEST SHORT STORIES BY NEGRO WRITERS Ed. by Langston Hughes PAGE QUOTE
176 “like bat’s shit and camel piss,”
228 “that no-count bitch of a daughter of yours is up there up North making a whore of herself.”
237 “they made her get out and stand in front of the headlights of the car and pull down her pants and raise her dress-they said that was the only way they could be sure. And you can imagine what they said and what they did-.”
303 “You need some pussy. Come on, let’s go up to the whore house on the hill.” “Oh, these bastards, these bastards, this God damned Army and the bastards in it. The sons of bitches!”
436 “he produced a brown rag doll, looked at her again, then grabbed the doll by its legs and tore it part way up the middle. Then he jammed his finger into the rip between the doll’s legs. The other men laughed....” 444 “The pimps, hustlers, lesbians, and others trying to misuse me.”
462 “But she had straight firm legs and her breasts were small and upright. No doubt if she’d had children her breasts would be hanging like little empty purses.”
464 “She first became aware of the warm tense nipples on her breasts. Her hands went up gently to clam them.” “In profile, his penis hung like a stout tassle. She could even tell that he was circumcised.”
406 “Cadillac Bill was busy following Luheaster around, rubbing her stomach and saying, ‘Magic Stomach, Magic Stomach, bring me a little baby Cadillac.’ ” “One of the girls went upstairs with Red Top and stayed for about forty five minutes.”
7) BLACK BOY by Richard Wright PAGE QUOTE
70-71 “We black children-seven or eight or nine years of age-used to run to the Jew’s store and shout:
... Bloody Christ Killers Never trust a Jew Bloody Christ Killers What won’t a Jew do . ..
Red, white and blue Your pa was a Jew Your ma a dirty dago What the hell is you?”
265 “Crush that nigger’s nuts, nigger!” “Hit that nigger!” “Aw, fight, you goddam niggers!” “Sock ’im, in his f-k-g piece!” “Make ’im bleed!”
8) LAUGHING BOY by Oliver LaFarge PAGE QUOTE
38 “I’ll tell you, she is all bad; for two bits she will do the worst thing.”
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.”
9) THE NAKED APE by Desmond Morris PAGE QUOTE
73-74 “Also, the frontal approach provides the maximum possibility for stimulation of the female’s clitoris during the pelvic thrusting of the male. It is true that it will be passively, stimulated by the pulling effect of the male’s thrusts, regardless of his body position in relation to the female, but in a face-to-face mating there will in addition be the direct rhythmic pressure of the male’s pubic region on to the clitoral area, and this will considerably heighten the stimulation ...” “So it seems plausible to consider that face-to-face copulation is basic to our species. There are, of course, a number of variations that do not eliminate the frontal element: male above, female above, side by side, squatting, standing, and so on, but the most efficient and commonly used one is with both partners horizontal, the male above the female.... ”
*422 80 "... This broadening of the penis results in the female’s external genitals being subjected to much more pulling and pushing during the performance of pelvic thrusts. With each inward thrust of the penis, the clitoral region is pulled downwards and then, with each withdrawal, it moves up again. Add to this the rhythmic pressure being exerted on the clitoris region by the pubic region of the frontally copulating male, and you have a repeated massaging of the clitoris that-were she a male-would virtually be masturbatory.”
94-99 “. .. If either males or females cannot for some reason obtain sexual access to their opposite numbers, they will find sexual outlets in other ways. They may use other members of their own sex, or they may even use members of other species, or they may masturbate. . .. ”
10) READER FOR WRITERS. See note 6 infra.
. N.Y. Education Law § 1709 (McKinney’s) reads in pertinent part as follows:
Ҥ 1709. Powers and Duties of Boards of Education
The said board of education of every union free school district shall have the power and it shall be its duty:
3. To prescribe the course of study by which the pupils of the school shall be graded and classified....
4. To prescribe the text-books to be used in the schools. .. .
9. To take charge and possession of .. . the books, apparatus, and all school property within its district; and the title of the same shall be vested respectively in said board of education. . ..
13. To have in all respects the superintendence, management and control of said union free schools....
33. To have in all respects the superintendence, management and control of the educational affairs of the district, and, therefore, shall have all the powers reasonably granted expressly or by implication by this chapter or other statutes.”
§ 701 of the Education Law, subdivision 1 states in pertinent part:
“In the several cities and school districts of the state, boards of education .. . shall designate textbooks to be used in the schools under their charge.”
§ 91.1 of the Regulations of the Commissioner of Education states:
“A school library shall be established and maintained in each school. The library in each elementary school shall meet the needs of the pupils, and shall provide an adequate complement to the various areas of the curriculum.”
It also requires a minimum of 1,000 titles each for a junior and senior high school library.
. Judge Sifton’s opinion quotes at length (at pp. 409-410) portions of a memorandum by Superintendent Richard G. Morrow to the Board dated February 27, 1976, disapproving a procedure whereby the Board might act unilaterally or precipitously on the basis of excerpts or lists prepared by others without first reading the books. The opinion also quotes portions of a Board press release issued on March 19, 1976, in response to articles in the press regarding the book issue. The impression given by these partial quotations is that the Board had prejudged the issue of whether the 10 books should be discontinued as part of the School’s curriculum, had permanently removed them, to which Superintendent Morrow was objecting.
However, the balance of Mr. Morrow’s memorandum, as well as his later similar memorandum to the public dated March 30, 1976 (entitled “Statement Concerning the Book Issue”), when the Board held a public hearing on the issue, reveals that he was recommending that a joint parent-school authority Committee be appointed to study the books and make recommendations to the Board. This was substantially the procedure adopted by the Board at its March 30, 1980, public meeting with Superintendent Morrow’s approval, and instituted in early April.
. Because of the unavailability of sufficient copies of A Reader for Writers most members of the Committee were unable to read the book within a reasonable length of time and could not therefore make a recommendation.
. Judge Mulligan summarized the contents of Down These Mean Streets as follows:
“The book, which has created the controversy and provoked the action of the Board, Down These Mean Streets, is an autobiographical account by Piri Thomas, of a Puerto Rican youth growing up in the East Side Barrio (Spanish Harlem) in New York City. Predictably the scene is depressing, ugly and violent. The argot of the vicinage is replete with four letter and twelve letter obscenities unreported by Tom Swift or even Tom Jones. Acts of criminal violence, sex, normal and perverse, as well as episodes of drug shooting are graphically described.” 457 F.2d 291 .
. A Reader for Writers, an anthology edited by Jerome W. Archer and Joseph Schwartz, while not apparently containing vulgar or indecent language, does contain a story which members of the Board considered to be in sufficiently bad taste to justify its removal from the library. An article in the book by Jonathan Swift, entitled A Modest Proposal for Preventing the Children of Poor People in Ireland From Being a Burden to their Parents or Country, suggests at length that the overpopulation problem could be solved by having 100,000 one-year old children slaughtered and served as food, with the skins to be artificially dressed and made into gloves and boots, and describes the proposed process in detail. I cannot label the Board’s decision to discontinue the book as irrational or designed to suppress freedom of expression by students, particularly in the absence of evidence that the book was in demand for any of its other writings.
. Community values may not be underestimated as a factor to be taken into account by a Board in selecting those books suitable for the part to be played by a school library in performance of the school’s educational function. According to the Eighth Annual Gallup Poll of the Public Attitude toward the Public Schools, as reported in Phi Delta Kappa Magazine for October 1976 (which was during the period of the events in question in this case), most persons answered that “high moral standards” represented the quality most neglected by public schools in the overall development of children. Seven out of ten parents replied that schools should share with them the responsibility for the moral behavior of their children.
. The parties’ statements of facts, about which no dispute exists, filed pursuant to Rule 9(g) of the General Rules of the Southern District of New York, contain the following pertinent provisions:
Plaintiffs: “Although the books themselves were excluded from use in the schools in any way, defendants have not precluded discussion about the themes of the books or the books themselves."
Defendants'. “No teacher has been instructed not to discuss the books which were removed or to refrain from discussion or comment upon the ideas and positions they represent.”
. As we recently reiterated in SEC v. Research Automation Corp., 585 F.2d 31 , 33 (2d Cir. 1978):
“Rule 56(e) provides that when a motion for summary judgment is supported by the documents listed in Rule 56(c)-depositions, affidavits, answers to interrogatories, and admissions-an adverse party may not rest upon mere conclusory allegations or denials. The party opposing the motion must set forth ‘concrete particulars’ [citation omitted] ... It is not sufficient merely to assert a conclusion without supplying supporting arguments or facts in opposition to the motion.”
See also, Donnelly v. Guion, 467 F.2d 290, 291 (2d Cir. 1972); Applegate v. Top Associates, Inc., 425 F.2d 92, 96 (2d Cir. 1970).