Island Trees School District v. Pico

In September 1975, the Island Trees Board of Education received a list of books deemed inappropriate by Parents of New York United. The board temporarily removed the books from school libraries and formed a committee to review the list. The committee found that five of the nine books should be returned, but the board overruled the decision and returned only two of the books.[3]

A group of five high school students (including one junior high school student) who, according to oral argument, were 17, 16, 15, 14, and 13 years old at the time of the removal of the books, led by Steven Pico, filed a lawsuit against the school board by claiming a violation of First Amendment rights. The United States District Court for the Eastern District of New York granted summary judgment in favor of the school board, citing the discretion given to a school board's authority in terms of its political philosophy.[4] The judgment was challenged and remanded to the Second Circuit after questions rose of the school board's motives.[5][6]

According to the syllabus of the case:

Petitioner Board of Education of the Island Trees Union Free School District, rejecting recommendations of a committee of parents and school staff that it had appointed, ordered that certain books, which the Board characterized as "anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy," be removed from high school and junior high school libraries. Respondent students then brought this action for declaratory and injunctive relief under 42 U.S.C. § 1983 against the Board and petitioner Board members, alleging that the Board's actions had denied respondents their rights under the First Amendment. The District Court granted summary judgment in petitioners' favor. The Court of Appeals reversed and remanded for a trial on the merits of respondents' allegations.[1]

Eleven books were the subject of the case. The books were:[7][1]

• Slaughterhouse-Five, by Kurt Vonnegut, Jr.
• The Naked Ape, by Desmond Morris
• Down These Mean Streets, by Piri Thomas
• Best Short Stories of Negro Writers, edited by Langston Hughes
• Go Ask Alice, of anonymous authorship
• Laughing Boy, by Oliver LaFarge
• Black Boy, by Richard Wright
• A Hero Ain't Nothin' but a Sandwich, by Alice Childress
• Soul on Ice, by Eldridge Cleaver
• A Reader for Writers, edited by Jerome Archer
• The Fixer, by Bernard Malamud

The first nine titles above were removed from shelves of the High School library; A Reader for Writers was removed from the Junior High School library because it contained the 1729 satirical essay A Modest Proposal by Jonathan Swift which the Board found to be offensive;[8] and The Fixer was removed from the curriculum of a 12th-grade literature course.[9]

Justice Blackmun, concurring, concluded that a proper balance between the limited constitutional restriction imposed on school officials by the First Amendment and the broad state authority to regulate education would be struck by holding that school officials may not remove books from school libraries for the purpose of restricting access to the political perspectives or social ideas discussed in the books when that action is motivated simply by the officials' disapproval of the ideas involved.

Justice White provided the necessary fifth vote for the outcome, which was to allow the case to proceed in the lower court. However, his reasoning was different from that of the plurality and of Justice Blackmun, and he expressly refused to opine on the First Amendment question.

Rather, he rejected the plurality's decision to speak about "the extent to which the First Amendment limits the discretion of the school board to remove books from the school library," and he concluded that there was "no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case. If, for example, the District Court concludes after a trial that the books were removed for their vulgarity, there may be no appeal. In any event, if there is an appeal, if there is dissatisfaction with the subsequent Court of Appeals' judgment, and if certiorari is sought and granted, there will be time enough to address the First Amendment issues that may then be presented."

As a consequence, the Justices split 4–4 on the First Amendment question and so no precedent was set for future cases.[2]

Writing about the plurality opinion, Burger stated, "Were this to become the law, this Court would come perilously close to becoming a 'super censor' of school board library decisions." [13] Justice Burger disagreed with the plurality's view that students have an enforceable right to receive information and ideas that are contained in junior and senior high school library books: "[n]o such right... has ever been recognized."[14] Discussing the role and obligation of school boards, he stated:

Presumably all activity within a primary or secondary school involves the conveyance of information and at least an implied approval of the worth of that information. How are "fundamental values" to be inculcated except by having school boards make content-based decisions about the appropriateness of retaining materials in the school library and curriculum. In order to fulfill its function, an elected school board must express its views on the subjects which are taught to its students. In doing so those elected officials express the views of their community; they may err, of course, and the voters may remove them. It is a startling erosion of the very idea of democratic government to have this Court arrogate to itself the power the plurality asserts today.[15]

He also disagreed with the plurality's distinction between acquisition decisions and removal decisions of the library: "It does not follow that the decision to remove a book is less 'official suppression' than the decision not to acquire a book desired by someone."[16] He ended, "I categorically reject this notion that the Constitution dictates that judges, rather than parents, teachers, and local school boards, must determine how the standards of morality and vulgarity are to be treated in the classroom."

Justice Powell's dissenting opinion reflected his belief that "the States and locally elected school boards should have the responsibility for determining the educational policy for the public schools."[17] He believed that school boards were "uniquely local and democratic institutions" and that the school boards were in the best position to decide what educational policy decisions should be made in their school district.[18] He closed his dissenting opinion by calling the plurality's decision "a debilitating encroachment upon the institutions of a free people".[19]

Justice Rehnquist's dissenting opinion first focused on the procedural posture of the case and disagreed with the approach taken by the plurality opinion: "I entirely disagree with Justice Brennan's treatment of the constitutional issue, I also disagree with his opinion for the entirely separate reason that it is not remotely tailored to the facts presented in this case."[20]

He found a distinction between the actions of the government as educator and the actions of the government as sovereign:

With these differentiated roles of government in mind, it is helpful to assess the role of government as educator as compared with the role of government as sovereign. When it acts as an educator... the government is engaged in inculcating social values and knowledge in relatively impressionable young people. Obviously, there are innumerable decisions to be made as to what courses should be taught, what books should be purchased, or what teachers should be employed.... In the very course of administering the many-faceted operations of a school district, the mere decision to purchase some books will necessarily preclude the possibility of purchasing others.... In each of these instances, however, the book or the exposure to the subject matter may be acquired elsewhere. The managers of the school district are not proscribing it as to the citizenry in general, but are simply determining that it will not be included in the curriculum or school library.[18]

He also took issue with the plurality's decision to find the "right to receive information" as an inherent corollary of the rights of free speech and of the press, which are guaranteed by the First Amendment: "It is the very existence of a right to receive information, in the junior high school and high school setting, which I find wholly unsupported by our past decisions and inconsistent with the necessarily selective process of elementary and secondary education."[21] He considered education to consist of selective presentation and explanation of ideas and that the right to receive information doctrine is improperly placed in elementary and secondary education.

In a very short dissenting opinion, Justice O'Connor found the school board to take on a special role as educator. She considered educational decisions such as suitable material to be properly relegated to the elected members of the school board: "If the school board can set the curriculum, select teachers, and determine initially what books to purchase for the school library, it surely can decide which books to discontinue or remove from the school library so long as it does not also interfere with the right of students to read the material and discuss it."[22]