concurring in the judgment in part.
I concur only in the result that the judgment of dismissal should be vacated and that the case should be remanded for further proceedings under Circuit Rule 18. Other than that, I must with deference, but in all candor, disassociate myself from the approach taken by Judge Cummings.
The Federal Rules of Civil Procedure establishes a “notice” system of pleading in the federal courts. A party is required in the first instance only to plead “a short and plain statement of the claim,” Fed.R.Civ.P. 8(a)(2), and is not limited to reliance on the legal theory of relief originally pleaded. 2A Moore’s Federal Practice ¶ 8.14 (2d ed. 1979). A judgment of dismissal under Rule 12(b) should not be granted “unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim.” 2A Moore’s Federal Practice ¶ 8.13, at 118-19 (2d ed. 1979).
In the case at bar the district court improperly considered plaintiffs’ main legal theory—that the Board violated the Constitution by acting on the basis of their personal, moral, political, and social, but not religious beliefs—to the complete exclusion of other legal theories presented by the complaint. The plaintiffs also alleged, for instance, “unreasonable censorship that unduly burdens the freedom of protected classroom discussion.” Complaint ¶ 39. That allegation, when considered with the nature of the specific books allegedly excised, many of which appear to deal with feminism, is sufficient in my view to withstand a motion to dismiss even under the substantive standard adopted by the majority: the censoring of a number of books on the same subject states a claim, for purposes of pleading, that the Board’s actions suppressed “a particular kind of inquiry generally.” Although I do not think that further amendment of the complaint is necessary, any problem in the pleading will likely be resolved on remand since counsel for plaintiffs indicated at oral argument that he would, if given leave, amend his complaint to allege the suppression of discussion of political and social views more explicitly.
Because the complaint, either as pleaded or as amended, states a claim of infringement of the First Amendment on at least one theory, the majority’s lengthy discussion of plaintiffs’ main legal theory is inappropriate. Drawing the line between the local school Board’s rightful prerogative to decide high school curricula and the methodology of teachers and Board ukases involving infringements of the First Amendment is difficult, to say the least. But however difficult, the line should be drawn, in my judgment, not on pleadings but on concrete facts developed at trial.