BOARD OF
EDUCATION, ISLAND TREES UNION FREE SCHOOL DISTRICT NO. 26, ET AL. v.
PICO, BY HIS NEXT FRIEND PICO, ET AL.
No. 80-2043
SUPREME COURT OF
THE UNITED STATES
457 U.S. 853;
102 S. Ct. 2799; 73 L. Ed. 2d 435; 1982 U.S. LEXIS 8; 8 Media L. Rep. 1721
March 2, 1982, Argued; June 25, 1982,
Decided
SUMMARY: A local school board, characterizing a number of
books as "anti-American, anti-Christian, anti-Semitic, and just plain
filthy," directed their removal from the libraries of a district high
school and junior high school. The board then appointed a committee of parents
and members of the school staff to make recommendations about the books, but it
substantially rejected the committee's recommendations in deciding that nine
books should be removed from elementary and secondary school libraries and from
use in the curriculum. Several students attending the junior high school and
high school brought an action under 42 USCS 1983 in the United States District
Court for the Eastern District of New York, alleging that the board's
actions--taken because of offense to its social, political, and moral
tastes--denied them their rights under the First Amendment and seeking
declaratory and injunctive relief. The District Court granted summary judgment
in favor of the board, finding that the board acted not on religious
principles, but on its conservative education philosophy, in ordering the
removal of the books and that, although the removal was content-based, there was
no constitutional violation of the requisite magnitude (474 F Supp 387). The
United States Court of Appeals for the Second Circuit reversed the judgment of
the District Court and remanded the action for a trial on the students'
allegations (638 F2d 404).
On certiorari, the United States Supreme Court affirmed. Although unable to agree on an opinion, five members of the
court agreed that there was a material issue of fact that precluded summary
judgment in favor of the school board.
Brennan, J., announced the judgment of the court and, in
an opinion joined by Marshall and Stevens, JJ., and joined in part (all except
for statement 1 below) by Blackmun, J., expressed the view that (1) local
school boards have broad discretion in the management of school affairs, but
this discretion must be exercised in a manner that comports with the
transcendent imperatives of the First Amendment, (2) the First Amendment rights
of students may be directly and sharply implicated by the removal of books from
the shelves of a school library, (3) local school boards may not remove books
from school library shelves simply because they dislike the ideas contained in
those books, and (4) the evidentiary materials that were before the District
Court, when construed most favorably to the students, raised a genuine issue of
material fact as to whether the school board exceeded constitutional
limitations in exercising its discretion to remove the books from the school
libraries, such issue foreclosing summary judgment in favor of the school
board.
Blackmun, J., concurring in part and concurring in the
judgment, expressed the view that (1) school officials may not remove books
for the purpose of restricting access to the political ideas or social
perspectives discussed in them, when that action is motivated simply by the
officials' disapproval of the ideas involved, and (2) this is a narrow
principle, since school officials must be able to choose one book over another,
without outside interference, when the first book is deemed more relevant to
the curriculum, or better written, or when one of a host of other politically
neutral reasons is present.
White, J., concurring in the judgment, expressed the view
that (1) the material issue of fact precluding summary judgment for the school
board concerned the reasons underlying the school board's removal of the books,
and (2) there was no necessity at this point to go further and issue a
dissertation on the extent to which the First Amendment limits the discretion
of a school board to remove books from a school library.
Burger, Ch. J., joined by Powell, Rehnquist, and O'Connor,
JJ., dissented, expressing the view that (1) in an attempt to deal with a
problem in an area traditionally left to the states, a plurality of the court
wrongly took the position that a school board's decision concerning what books
are to be in the school library is subject to federal court review, (2) if the
plurality's view were to become the law, the court would come perilously close
to becoming a "super censor" of school board library decisions, and
(3) the Constitution does not dictate that judges, rather than parents,
teachers, and local school boards, must determine how the standards of morality
and vulgarity ar to be treated in the classroom.
Powell, J., dissented, expressing the view that the
states and locally elected school boards should have the responsibility for
determining the educational policy of the public schools, school boards being
uniquely local and democratic institutions.
Rehnquist, J., joined by Burger, Ch. J., and Powell, J.,
dissented, expressing the view that (1) actions by the government as
educator do not raise the same First Amendment concerns as actions by the
government as sovereign, (2) a right to receive information, in the junior high
school and high school setting, is wholly unsupported by the court's past
decisions and is inconsistent with the necessarily selective process of
elementary and secondary education, and (3) the statement in the plurality
opinion that the Constitution does not permit the official suppression of ideas
is not a useful analytical tool in solving difficult First Amendment problems.
O'Connor, J., dissented, expressing the
view that (1) a school board 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 to discuss it, and (2) it is not the function
of the courts to make the decisions that have been properly relegated to the
elected members of school boards.
note: the summaries above were prepared by LexisNexis. The
opinions by the Justices themselves (as abridged by me for this class) appear
below this table, which displays the alignment of the Justices on
|
|
Summary Judgment: (no need for a
fact-finding trial, since even if the students could prove all the facts that
they allege, these facts would not show any violation of any rights they have
under the First Amendment) |
Students have First Amendment Right to Receive Information and Ideas |
||
|
Burger |
yes |
|
|
no |
|
Rehnquist |
yes |
|
|
no |
|
Powell |
yes |
|
|
no |
|
O’Connor |
yes |
|
|
no |
|
White |
|
no |
better not to decide now |
|
|
Blackmun |
|
no |
no, but suppression of ideas is banned |
|
|
Brennan |
|
no |
yes |
|
|
Stevens |
|
no |
yes |
|
|
Marshall |
|
no |
yes |
|
OPINION:
[*855] [***439] [**2802] JUSTICE BRENNAN announced the judgment of the Court and delivered an
opinion, in which JUSTICE MARSHALL and JUSTICE STEVENS joined, and in which
JUSTICE BLACKMUN joined except for Part II-A-(1).
[***HR1A] [1A]
The principal question presented is whether the First Amendment n1 imposes
limitations upon the exercise by a local [*856] school board of its
discretion to remove library books [***440] from high school and
junior high school libraries.
///////////////I
In September 1975, petitioners [school board members] Ahrens, Martin, and
Hughes attended a conference sponsored by Parents of New York United (PONYU), a
politically conservative organization of parents concerned about education
legislation in the State of New York. At the conference these petitioners
obtained lists of books described by Ahrens as "objectionable," App.
22, and by Martin as "improper fare for school students," id.,
at 101. n2 It was later determined that the [**2803] High School
library contained nine of the listed books, and that another listed book was in
the Junior High School library. n3 In [*857] February 1976, at a
meeting with the Superintendent of Schools and the Principals of the High
School and Junior High School, the Board gave an "unofficial
direction" that the listed books be removed from the library shelves and
delivered to the Board's offices, so that Board members could read them. n4
When this directive was carried out, it became publicized, and the Board issued
a press release justifying its action. It characterized the removed books as
"anti-American, anti-Christian, anti-[Semitic], and just plain
filthy," and concluded that [***441] "[it] is our duty,
our moral obligation, to protect the children in our schools from this moral
danger as surely as from physical and medical dangers." 474 F.Supp. 387,
390 (EDNY 1979).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 The District Court noted, however, that petitioners "concede that the
books are not obscene." 474 F.Supp. 387, 392 (EDNY 1979).
n3 The nine books in the High School library were: Slaughter House 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; and Soul On Ice, by Eldridge Cleaver. The book in the Junior High
School library was A Reader for Writers, edited by Jerome Archer. Still another
listed book, The Fixer, by Bernard Malamud, was found to be included in the
curriculum of a 12th-grade literature course. 474 F.Supp., at 389, and nn. 2-4.
n4 The Superintendent of Schools objected to the Board's informal directive,
noting:
"[We] already have a policy . . . designed expressly to handle such
problems. It calls for the Superintendent, upon receiving an objection to a
book or books, to appoint a committee to study them and make recommendations. I
feel it is a good policy -- and it is Board policy -- and that it should be
followed in this instance. Furthermore, I think it can be followed quietly and
in such a way as to reduce, perhaps avoid, the public furor which has always
attended such issues in the past." App. 44.
The Board responded to the Superintendent's objection by repeating its
directive "that all copies of the library books in question be
removed from the libraries to the Board's office." Id., at 47 (emphasis
in original).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
A short time later, the Board appointed a "Book Review Committee,"
consisting of four Island Trees parents and four members of the Island Trees schools
staff, to read the listed books and to recommend to the Board whether the books
should be retained, taking into account the books' "educational
suitability," "good taste," "relevance," and
"appropriateness to age and grade level." In July, the Committee
[*858] made its final report to the Board, recommending that five
of the listed books be retained n5 and that two others be removed from the
school libraries. n6 As for the remaining four books, the Committee could not
agree on two, n7 took no position on one, n8 and recommended that the last book
be made available to students only with parental approval. n9 The Board
substantially rejected the Committee's report later that month, deciding that
only one book should be returned to the High School library without
restriction, n10 that another should be made available subject to parental
approval, n11 but that the remaining nine books should "be removed from
elementary and secondary libraries and [from] use in the curriculum." Id.,
at 391. n12 The Board gave no reasons for rejecting the recommendations of the
Committee that it had appointed.
\\\\\\\\\\\\\\
[**2804] Respondents reacted to the Board's decision by bringing
the present action under 42 U. S. C. § 1983 in the United States District Court
for the Eastern District of New York. They alleged that petitioners had
"ordered the removal of the books from school libraries and proscribed
their use in the curriculum because particular passages in the books offended
their social, political [*859] and moral tastes and not because the
books, taken as a whole, were lacking in educational value." App. 4.
Respondents claimed that the Board's actions denied them their rights under the
First Amendment. They asked the court for a declaration that the Board's
actions were unconstitutional, and for preliminary and permanent injunctive
relief ordering the Board to return the nine books to the school libraries and
to refrain from interfering with the use of those books in the schools'
curricula. Id., at 5-6.
The District Court granted summary [***442] judgment in favor of
petitioners. 474 F.Supp. 387 (1979). In the court's view, "the parties
substantially [agreed] about the motivation behind the board's actions," id.,
at 391 -- namely, that
"the board acted not on religious principles but on its conservative
educational philosophy, and on its belief that the nine books removed from the
school library and curriculum were irrelevant, vulgar, immoral, and in bad
taste, making them educationally unsuitable for the district's junior and
senior high school students." Id., at 392.
With this factual premise as its background, the court rejected respondents'
contention that their First Amendment rights had been infringed by the Board's
actions. Noting that statutes, history, and precedent had vested local school
boards with a broad discretion to formulate educational policy, n13 the court
concluded that it should not intervene in "'the daily operations of school
systems'" unless "'basic constitutional values'" were
"'sharply [implicated],'" n14 and determined [*860] that
the conditions for such intervention did not exist in the present case.
Acknowledging that the "removal [of the books] . . . clearly was
content-based," the court nevertheless found no constitutional violation
of the requisite magnitude:
"The board has restricted access only to certain books which the board
believed to be, in essence, vulgar. While removal of such books from a school
library may . . . reflect a misguided educational philosophy, it does not
constitute a sharp and direct infringement of any first amendment right." Id.,
at 397.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - -
A three-judge panel of the United States Court of Appeals for the Second
Circuit reversed the judgment of the District Court, and remanded the action
for a trial on respondents' allegations. 638 F.2d 404 (1980). Each judge on the
panel filed a separate opinion. Delivering the judgment of the court, Judge
Sifton treated the case as involving "an unusual and irregular
intervention in the school libraries' operations by persons not routinely
concerned with such matters," and concluded that petitioners were obliged
to demonstrate a reasonable basis for interfering with respondents' First
Amendment rights. Id., at 414-415. He then determined that, at least
at the summary judgment stage, petitioners had not offered sufficient
justification for their action, n15 and concluded that respondents "should
have . . . been offered [**2805] an opportunity to persuade a
finder of fact that the ostensible justifications for [petitioners'] actions .
. . were simply pretexts for the suppression of free speech." Id.,
at [***443] 417. n16 Judge Newman [*861] concurred in
the result. Id., at 432-438. He viewed the case as turning on the
contested factual issue of whether petitioners' removal decision was motivated
by a justifiable desire to remove books containing vulgarities and sexual
explicitness, or rather by an impermissible desire to suppress ideas. Id.,
at 436-437. n17 We granted certiorari, 454 U.S. 891 (1981).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
\\\\\\\\\\\\\\\\
n16 Judge Sifton stated that it
could be inferred from the record that petitioners' "political views and
personal taste [were] being asserted not in the interests of the children's
well-being, but rather for the purpose of establishing those views as the
correct and orthodox ones for all purposes in the particular community." Id.,
at 417.
n17 Judge Mansfield dissented, id., at 419-432, based upon a
distinctly different reading of the record developed in the
District Court. According to Judge Mansfield, "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." Id.,
at 430. He also asserted that in reaching its decision "the Board [had]
acted carefully, conscientiously and responsibly after according due process to
all parties concerned." Id., at 422. Judge Mansfield concluded
that "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." Id., at 432.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
II
We emphasize at the outset the limited nature of the substantive question
presented by the case before us. Our precedents have long recognized certain
constitutional limits upon the power of the State to control even the
curriculum and classroom. For example, Meyer v. Nebraska,
262 U.S. 390 (1923), struck down a state law that forbade the teaching of
modern foreign languages in public and private schools, and Epperson
v. Arkansas, 393 U.S. 97 (1968), declared unconstitutional a state law
that prohibited the teaching of the Darwinian theory of evolution in any
state-supported school. But the current action does not require us to re-enter
this difficult terrain, which Meyer and Epperson traversed
without apparent misgiving. For as this case is presented to us, it does not
involve textbooks, or indeed any books that Island [*862] Trees
students would be required to read. n18 Respondents do not seek in this Court
to impose limitations upon their school Board's discretion to prescribe the
curricula of the Island Trees schools. On the contrary, the only books at issue
in this case are library books, books that by their nature are
optional rather than required reading. [***444] Our adjudication of
the present case thus does not intrude into the classroom, or into the
compulsory courses taught there. Furthermore, even as to library books, the
action before us does not involve the acquisition of books.
Respondents have not sought to compel their school Board to add to the school
library shelves any books that students desire to read. Rather, the only action
challenged in [**2806] this case is the removal from
school libraries of books originally placed there by the school authorities, or
without objection from them.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n18 Four of respondents' five causes of action complained of petitioners'
"resolutions ordering the removal of certain books from the school
libraries of the District and prohibiting the use of those books in the
curriculum." App. 5. The District Court concluded that "respect for .
. . the school board's substantial control over educational content . . .
[precludes] any finding of a first amendment violation arising out of removal
of any of the books from use in the curriculum." 474 F.Supp., at 397. This
holding is not at issue here. Respondents' fifth cause of action complained
that petitioners' "resolutions prohibiting the use of certain books in the
curriculum of schools in the District" had "imposed upon teachers in
the District arbitrary and unreasonable restrictions upon their ability to
function as teachers in violation of principles of academic freedom." App.
6.
[goes
on to explain why S Ct is looking at library issues only ... not use of books
in the "curriculum"]
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
\\\\\
In sum, the issue before us in this case is a narrow one, both substantively
and procedurally. It may best be restated as two distinct questions. First,
does the First Amendment impose any limitations upon the discretion of
petitioners to remove library books from the Island Trees High School and
Junior High School? Second, if so, do the affidavits and other evidentiary
materials before the District Court, construed most favorably to respondents,
raise a genuine issue of fact whether petitioners might have exceeded those
limitations? \\\\\
A
(1)
The Court has
long recognized that local school boards have broad discretion in the
management of school affairs. See, e. g., Meyer v. Nebraska,
supra, at 402; Pierce v. Society of Sisters, 268 U.S.
510, 534 (1925). Epperson v. Arkansas, [*864] supra,
at 104, reaffirmed that, by and large, "public education in our Nation is
committed to the control of state and local authorities," and that federal
courts should not ordinarily "intervene in the resolution of conflicts
which arise in the daily operation of school systems." Tinker v. Des
Moines School Dist., 393 U.S. 503, 507 [***445] (1969), noted
that we have "repeatedly emphasized . . . the comprehensive authority of
the States and of school officials . . . to prescribe and control conduct in
the schools." We have also acknowledged that public schools are vitally important "in the
preparation of individuals for participation as citizens," and as vehicles
for "inculcating fundamental values necessary to the maintenance of a
democratic political system." Ambach v. Norwick, 441 U.S. 68, 76-77
(1979). We are therefore in full agreement with petitioners that local school boards must be
permitted "to establish and apply their curriculum in such a way as to
transmit community values," and that "there is a legitimate and
substantial community interest in promoting respect for authority and
traditional values be they social, moral, or political." Brief for
Petitioners 10. n19
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - -End Footnotes- -
- - - - - - - - - - - - - - -
[***HR2A] [2A]
At the same time,
however, we have necessarily recognized that the discretion of the States and
local school boards in matters of education must be exercised in a [**2807] manner that comports with the
transcendent imperatives of the First Amendment. In West
Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), we
held that under the First Amendment a student in a public school could not be
compelled to salute the flag. We reasoned:
"Boards of Education . . . have, of course, important, delicate, and
highly discretionary functions, but none that they may not perform within the
limits of the Bill of Rights. That they are educating the young for citizenship
is reason for scrupulous protection of Constitutional [*865]
freedoms of the individual, if we are not to strangle the free mind at its
source and teach youth to discount important principles of our government as
mere platitudes." Id., at 637.
Later cases have consistently followed this rationale. Thus Epperson
v. Arkansas invalidated a State's anti-evolution statute as violative
of the Establishment Clause, and reaffirmed the duty of federal courts "to
apply the First Amendment's mandate in our educational system where essential
to safeguard the fundamental values of freedom of speech and inquiry." 393
U.S., at 104. And Tinker v. Des Moines School Dist., supra,
held that a local school board had infringed the free speech rights of high
school and junior high school students by suspending them from school for
wearing black armbands in class as a protest against the Government's policy in
Vietnam; we stated there that the "comprehensive authority . . . of school
officials" must be exercised "consistent with fundamental
constitutional safeguards." 393 U.S., at 507. In sum, students do not
"shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate," id., at 506, and therefore local school boards
must discharge their "important, delicate, and highly discretionary
functions" within the limits and constraints of the First Amendment.
The nature of students' First [***446] Amendment rights in the context
of this case requires further examination. West Virginia Board of Education
v. Barnette, supra, is instructive. There the Court held that
students' liberty of conscience could not be infringed in the name of
"national unity" or "patriotism." 319 U.S., at 640-641. We
explained that
"the action of the local authorities in compelling the flag salute and
pledge transcends constitutional limitations on their power and invades the
sphere of intellect and spirit which it is the purpose of the First Amendment
to our Constitution to reserve from all official control." Id.,
at 642. [*866]
Similarly, Tinker v. Des Moines School Dist., supra, held
that students' rights to freedom of expression of their political views could
not be abridged by reliance upon an "undifferentiated fear or apprehension
of disturbance" arising from such expression:
"Any
departure from absolute regimentation may cause trouble. Any variation from the
majority's opinion may inspire fear. Any word spoken, in class, in the
lunchroom, or on the campus, that deviates from the views of another person may
start an argument or cause a disturbance. But our Constitution says we must
take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949);
and our history says that it is this sort of hazardous freedom -- this kind of
openness -- that is the basis of our national strength and of the independence
and vigor of Americans who grow up and live in this . . . often disputations
society." 393 U.S., at 508-509.
In short, "First
Amendment rights, applied in light of the special characteristics of the school
environment, are available to . . . students." Id.,
at 506.
Of course, courts should not "intervene in the resolution of conflicts
which arise in the daily operation of school systems" unless "basic
constitutional values" [**2808] are "directly and sharply
[implicated]" in those conflicts. Epperson v. Arkansas,
393 U.S., at 104. But we think that the First Amendment rights of students may
be directly and sharply implicated by the removal of books from the shelves of
a school library. Our precedents have focused "not only on the role of the
First Amendment in fostering individual self-expression but also on its role in
affording the public access to discussion, debate, and the dissemination of information
and ideas." First National Bank of Boston v. Bellotti,
435 U.S. 765, 783 (1978). And we have recognized that "the State may not,
consistently with the spirit of the First Amendment, contract the spectrum of
available knowledge." Griswold v. Connecticut,
381 U.S. 479, 482 (1965). In keeping with this principle, [*867] we
have held that in
a variety of contexts "the Constitution protects the right to receive
information and ideas." Stanley v. Georgia,
394 U.S. 557, 564 (1969); see Kleindienst v. Mandel, 408 U.S.
753, 762-763 (1972) (citing cases). This [***447] right is an inherent corollary of the
rights of free speech and press that are explicitly guaranteed by the
Constitution, in two senses. First, the right to receive ideas follows
ineluctably from the sender's First Amendment right to send them:
"The right of freedom of speech and press . . . embraces the right to
distribute literature, and necessarily protects the right to receive it." Martin
v. Struthers, 319 U.S. 141, 143 (1943) (citation omitted). "The
dissemination of ideas can accomplish nothing if otherwise willing addressees
are not free to receive and consider them. It would be a barren marketplace of
ideas that had only sellers and no buyers." Lamont v. Postmaster
General, 381 U.S. 301, 308 (1965) (BRENNAN, J., concurring).
More importantly, the right to receive ideas is a necessary predicate to the recipient's
meaningful exercise of his own rights of speech, press, and political freedom.
Madison admonished us:
"A popular
Government, without popular information, or the means of acquiring it, is but a
Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever
govern ignorance: And a people who mean to be their own Governors, must arm
themselves with the power which knowledge gives." 9 Writings of
James Madison 103 (G. Hunt ed. 1910). n20
[*868] As we recognized in Tinker, students too are
beneficiaries of this principle:
"In our
system, students may not be regarded as closed-circuit recipients of only that
which the State chooses to communicate. . . . [School] officials cannot
suppress 'expressions of feeling with which they do not wish to contend.'" 393 U.S., at
511 (quoting Burnside v. Byars, 363 F.2d 744, 749 (CA5
1966)).
In sum, just as access to ideas makes it
possible for citizens generally to exercise their rights of free speech and
press in a meaningful manner, such access prepares students for active and effective
participation in the pluralistic, often contentious society [**2809]
in which they will soon be adult members. Of course all First Amendment
rights accorded to students must be construed "in light of the special
characteristics of the school environment." Tinker
v. Des Moines School Dist., 393 U.S., at 506. But the special
characteristics of the school library make that environment especially
appropriate [***448] for the recognition of the First Amendment
rights of students.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - -
A school library, no less than any other public library, is "a place
dedicated to quiet, to knowledge, and to beauty." Brown v. Louisiana,
383 U.S. 131, 142 (1966) (opinion of Fortas, J.). Keyishian v. Board
of Regents, 385 U.S. 589 (1967), observed that "'students must always
remain free to inquire, to study and to evaluate, to gain new maturity and
understanding.'" n21 The school library is the principal locus
[*869] of such freedom. As one District Court has well put it, in
the school library
"a student can literally explore the unknown, and discover areas of
interest and thought not covered by the prescribed curriculum. . . . [The]
student learns that a library is a place to test or expand upon ideas presented
to him, in or out of the classroom." Right to Read Defense Committee
v. School Committee, 454 F.Supp. 703, 715 (Mass. 1978).
Petitioners
emphasize the inculcative function of secondary education, and argue that they
must be allowed unfettered discretion to "transmit community
values" through the Island Trees schools. But that sweeping claim
overlooks the unique role of the school library. It appears from
the record that use of the Island Trees school libraries is completely
voluntary on the part of students. Their selection of books from these
libraries is entirely a matter of free choice; the libraries afford them an
opportunity at self-education and individual enrichment that is wholly
optional. Petitioners
might well defend their claim of absolute discretion in matters of curriculum
by reliance upon their duty to inculcate community values. But we think
that petitioners' reliance upon that duty is misplaced where, as here, they
attempt to extend their claim of absolute discretion beyond the compulsory
environment of the classroom, into the school library and the regime of
voluntary inquiry that there holds sway.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - -End Footnotes- - - - -
- - - - - - - - - - - -
(2)
In rejecting petitioners' claim of absolute discretion to remove books from
their school libraries, we do not deny that local school boards have a
substantial legitimate role to play in the determination of school library
content. We thus must turn to the question of the extent to which the First Amendment
places limitations upon the discretion of petitioners to remove books from
their libraries. In this inquiry we [*870] enjoy the guidance of
several precedents. West Virginia Board of Education v. Barnette
stated:
"If there is
any fixed star in our constitutional constellation, it is that no official,
high or petty, can prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion . . . . If there are any
circumstances which permit an exception, they do not now occur to us." 319
U.S., at 642.
This doctrine has been reaffirmed in later cases involving education. For
example, Keyishian v. Board of Regents, supra, at
[***449] 603, noted that "the First Amendment . . . does not tolerate laws
that cast a pall of orthodoxy over the classroom;" see also
Epperson v. Arkansas, 393 U.S., at 104-105. And Mt.
Healthy City Board of Ed. v. Doyle, 429 U.S. 274 (1977),
recognized First Amendment limitations upon the discretion of a local school
board to refuse to rehire a nontenured teacher. The school board in Mt.
Healthy had declined to renew respondent Doyle's employment contract, in
part because he had exercised his First Amendment [**2810] rights.
Although Doyle did not have tenure, and thus "could have been discharged
for no reason whatever," Mt. Healthy held that he could
"nonetheless establish a claim to reinstatement if the decision not to
rehire him was made by reason of his exercise of constitutionally protected
First Amendment freedoms." Id., at 283-284. We held further that
once Doyle had shown "that his conduct was constitutionally protected, and
that this conduct was a 'substantial factor' . . . in the Board's decision not
to rehire him," the school board was obliged to show "by a preponderance
of the evidence that it would have reached the same decision as to respondent's
reemployment even in the absence of the protected conduct." Id.,
at 287.
With respect to the present case, the message of these precedents is clear. Petitioners rightly possess
significant discretion to determine the content of their school libraries. But that discretion may not be
exercised in a narrowly partisan or political manner. If a
Democratic school board, motivated by party affiliation, ordered the removal of
all books [*871] written by or in favor of Republicans, few would
doubt that the order violated the constitutional rights of the students denied
access to those books. The same conclusion would surely apply if an all-white
school board, motivated by racial animus, decided to remove all books authored
by blacks or advocating racial equality and integration. Our Constitution does not
permit the official suppression of ideas. Thus whether
petitioners' removal of books from their school libraries denied respondents
their First Amendment rights depends upon the motivation behind petitioners'
actions. If
petitioners intended by their removal decision to deny respondents
access to ideas with which petitioners disagreed, and if this
intent was the decisive factor in petitioners' decision, n22 then petitioners have
exercised their discretion in violation of the Constitution. To permit such
intentions to control official actions would be to encourage the precise sort
of officially prescribed orthodoxy unequivocally condemned in Barnette.
On the other hand, respondents implicitly concede that an unconstitutional
motivation would not be demonstrated if it were shown that petitioners
had decided to remove the books at issue because those books were pervasively
vulgar. Tr. of Oral Arg. 36. And again, respondents concede that if it were demonstrated
that the removal decision was based [***450] solely upon the
"educational suitability" of the books in question, then their
removal would be "perfectly permissible." Id.,
at 53. In other words, in respondents' view such motivations, if decisive of
petitioners' actions, would not carry the danger of an official suppression of
ideas, and thus would not violate respondents' First Amendment rights.
- - - - - - - - - - - - - - - - - -Footnotes- - -- - - -End Footnotes- - - - -
- - - - - - - - - - - -
As noted earlier, nothing in our decision today affects in any way the
discretion of a local school board to choose books to add to the
libraries of their schools. Because we are concerned in this case with the
suppression of ideas, our holding [*872] today affects only the
discretion to remove books. In brief, we hold that local school boards
may not remove books from school library shelves simply because they dislike
the ideas contained in those books and seek by their removal to "prescribe
what shall be orthodox in politics, nationalism, religion, or other matters of
opinion." West Virginia Board of Education v. Barnette,
319 U.S., at 642. Such purposes stand inescapably condemned by our precedents.
B
[***HR1B] [1B]
We now turn to the remaining question presented by this case: Do the
evidentiary materials that were before the District Court, when construed most
favorably to respondents, raise a genuine issue of material fact whether
petitioners exceeded constitutional limitations in exercising
[**2811] their discretion to remove the books from the school
libraries? We conclude that the materials do raise such a question, which
forecloses summary judgment in favor of petitioners.
Before the District Court, respondents claimed that petitioners' decision to
remove the books "was based on [their] personal values, morals and
tastes." App. 139. Respondents also claimed that petitioners objected to
the books in part because excerpts from them were "anti-American." Id.,
at 140. The accuracy of these claims was partially conceded by petitioners, n23
and petitioners' own affidavits lent further support to respondents' claims.
n24 In addition, the [*873] record developed in the District Court
shows that when petitioners offered their first public explanation for the
removal of the books, they relied in part on the assertion that the removed
books were "anti-American," and "offensive to . . . Americans in
general." 474 F.Supp., at 390. n25 [***451] Furthermore, while
the Book Review Committee appointed by petitioners was instructed to make its
recommendations based upon criteria that appear on their face to be permissible
-- the books' "educational suitability," "good taste,"
"relevance," and "appropriateness to age and grade level,"
App. 67 -- the Committee's recommendations that five of the books be retained
and that only two be removed were essentially rejected by petitioners, without
any statement of reasons for doing so. Finally, while petitioners originally
defended their removal decision with the explanation that "these books
contain obscenities, blasphemies, brutality, and perversion beyond
description," 474 F.Supp., at 390, one of the books, A Reader for Writers,
was removed even though it contained no such language. 638 F.2d, at 428, n. 6
(Mansfield, J., dissenting).
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n23 Petitioners acknowledged that their "evaluation of the suitability of
the books was based on [their] personal values, morals, tastes and concepts of
educational suitability." App. 142. But they did not accept, and thus
apparently denied, respondents' assertion that some excerpts were objected to
as "anti-American." Ibid.
n24 For example, petitioner Ahrens stated:
"I am basically a conservative in my general philosophy and feel that the
community I represent as a school board member shares that philosophy. . . . I
feel that it is my duty to apply my conservative principles to the decision
making process in which I am involved as a board member and I have done so with
regard to . . . curriculum formation and content and other educational
matters." Id., at 21.
"We are representing the community which first elected us and re-elected
us and our actions have reflected its intrinsic values and desires." Id.,
at 27.
Petitioners Fasulo, Hughes, Melchers, Michaels, and Nessim made a similar
statement that they had "represented the basic values of the community in
[their] actions." Id., at 120.
n25 When asked to
give an example of "anti-Americanism" in the removed books,
petitioners Ahrens and Martin both adverted to A Hero Ain't Nothin' But A
Sandwich, which notes at one point that George Washington was a slaveholder.
See A. Childress, A Hero Ain't Nothin' But A Sandwich 43 (1973); Deposition of
Petitioner Ahrens 89; Deposition of Petitioner Martin 20-22. Petitioner Martin
stated: "I believe it is anti-American to present one of the nation's
heroes, the first President, . . . in such a negative and obviously one-sided
life. That is one example of what I would consider anti-American."
Deposition of Petitioner Martin 22.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*874] Standing alone, this evidence respecting the substantive
motivations behind petitioners' removal decision would not be decisive. This
would be a very different case if the record demonstrated that petitioners had
employed established, regular, and facially unbiased procedures for the review
of controversial materials. But the actual record in the case before us
suggests the exact opposite. Petitioners' removal procedures were vigorously
challenged below by respondents, and the evidence on this issue sheds further
light on the issue of petitioners' motivations. n26 Respondents alleged
[**2812] that in making their removal decision petitioners ignored
"the advice of literary experts," the views of "librarians and
teachers within the Island Trees School system," the advice of the
Superintendent of Schools, and the guidance of publications that rate books for
junior and senior high school students. App. 128-129. Respondents also claimed
that petitioners' decision was based solely on the fact that the books were
named on the PONYU list received by petitioners Ahrens, Martin, and Hughes, and
that petitioners "did not undertake an independent review of other books
in the [school] libraries." Id., at 129-130. Evidence before the
District Court lends support to these claims. The record shows that immediately
after petitioners first ordered the books removed from the library
[***452] shelves, the Superintendent of Schools reminded them that
"we already have a policy . . . designed expressly [*875] to
handle such problems," and recommended that the removal decision be
approached through this established channel. See n. 4, supra. But the
Board disregarded the Superintendent's advice, and instead resorted to the
extraordinary procedure of appointing a Book Review Committee -- the advice of
which was later rejected without explanation. In sum, respondents' allegations
and some of the evidentiary materials presented below do not rule out the
possibility that petitioners' removal procedures were highly irregular and ad
hoc -- the antithesis of those procedures that might tend to allay suspicions
regarding petitioners' motivations.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - -End Footnotes-
- - - - - - - - - - - - - - - -
Construing these claims, affidavit statements, and other evidentiary materials
in a manner favorable to respondents, we cannot conclude that petitioners were
"entitled to a judgment as a matter of law." The evidence plainly does not
foreclose the possibility that petitioners' decision to remove the books rested
decisively upon disagreement with constitutionally protected ideas in those
books, or upon a desire on petitioners' part to impose upon the students of the
Island Trees High School and Junior High School a political orthodoxy to which
petitioners and their constituents adhered. Of course, some of the evidence
before the District Court might lead a finder of fact to accept petitioners'
claim that their removal decision was based upon constitutionally valid
concerns. But that evidence at most creates a genuine issue of material fact on
the critical question of the credibility of petitioners' justifications for
their decision: On that issue, it simply cannot be said that there is no
genuine issue as to any material fact.
The mandate shall issue forthwith.
Affirmed.
CONCUR: JUSTICE BLACKMUN, concurring in part and concurring in the
judgment.
[***HR1C] [1C]
While I agree with much in today's plurality opinion, and while I accept the
standard laid down by the plurality to [*876] guide proceedings on
remand, I write separately because I have a somewhat different perspective on
the nature of the First Amendment right involved.
I
To my mind, this case presents a particularly complex problem because it
involves two competing principles of constitutional stature. On the one hand,
as the dissenting opinions demonstrate, and as we all can agree, the Court has
acknowledged the importance of the public schools "in the preparation of
individuals for participation as citizens, and in the preservation of the
values on which our society rests." Ambach v. Norwick,
441 U.S. 68, 76 (1979). See, also, ante, at 863-864 (plurality
opinion). Because of the
essential socializing function of [**2813] schools, local
education officials may attempt "to promote civic virtues," Ambach
v. Norwick, 441 U.S., at 80, and to "[awaken] the child to
cultural values." Brown v. Board of Education, 347 U.S.
483, 493 (1954). Indeed, the Constitution presupposes the existence [***453] of an informed citizenry
prepared to participate in governmental affairs, and these democratic
principles obviously are constitutionally incorporated into the structure of
our government. It therefore seems entirely appropriate that the State use
"public schools [to] . . . [inculcate] fundamental values necessary to the
maintenance of a democratic political system." Ambach
v. Norwick, 441 U.S., at 77.
On the other hand, as the plurality demonstrates, it is beyond dispute that
schools and school boards must operate within the confines of the First
Amendment. In a variety of academic settings the Court therefore has
acknowledged the force of the principle that schools, like other enterprises
operated by the State, may not be run in such a manner as to "prescribe
what shall be orthodox in politics, nationalism, religion, or other matters of
opinion." West Virginia Board of Education v. Barnette,
319 U.S. 624, 642 (1943). While none of these cases define the limits of a school board's
authority [*877] to choose a curriculum and academic materials, they
are based on the general proposition that "state-operated schools may not
be enclaves of totalitarianism. . . . In our system, students may not be
regarded as closed-circuit recipients of only that which the State chooses to
communicate." Tinker v. Des Moines School Dist., 393
U.S. 503, 511 (1969).
The Court in Tinker
thus rejected the view that "a State might so conduct its schools as to
'foster a homogeneous people.'" Id., at 511, quoting Meyer
v. Nebraska, 262 U.S. 390, 402 (1923). Similarly, Keyishian
v. Board of Regents, 385 U.S. 589 (1967) -- a case that involved the
State's attempt to remove "subversives" from academic positions at
its universities, but that addressed itself more broadly to public education in
general -- held that "[the] classroom is peculiarly the 'marketplace of
ideas'"; the First Amendment therefore "does not tolerate laws that
cast a pall of orthodoxy over the classroom." Id., at 603. And Barnette
is most clearly applicable here: its holding was based squarely on the view
that "[free] public education, if faithful to the ideal of secular
instruction and political neutrality, will not be partisan or enemy of any
class, creed, party, or faction." 319 U.S., at 637. The Court therefore made it
clear that imposition of "ideological discipline" was not a proper
undertaking for school authorities. Ibid.
In combination with more generally applicable First Amendment rules, most
particularly the central proscription of content-based regulations of speech,
see Police Department of Chicago v. Mosley, 408 U.S. 92
(1972), the cases outlined above yield a general principle: the State may not suppress
exposure to ideas -- for the sole purpose of suppressing exposure to
those ideas -- absent sufficiently compelling reasons. Because the
school board must perform all its functions "within the limits of the Bill
of Rights," Barnette, 319 U.S., at 637, this principle
necessarily applies in at [***454] least a limited way to public
education. Surely this is true in an extreme [*878] case: as the
plurality notes, it is difficult to see how a school board, consistent with the
First Amendment, could refuse for political reasons to buy books written by
Democrats or by Negroes, or books that are "anti-American" in the
broadest sense of that term. Indeed, JUSTICE REHNQUIST appears "cheerfully
[to] concede" this point. Post, at 907 (dissenting opinion).
In my view, then,
the principle involved here is both narrower and more basic than
[**2814] the
"right to receive information" identified by the plurality. I do not
suggest that the State has any affirmative obligation to provide students with
information or ideas, something that may well be associated with a "right
to receive." See post, at 887 (BURGER, C. J., dissenting); post,
at 915-918 (REHNQUIST, J., dissenting). And I do not believe, as the plurality
suggests, that the right at issue here is somehow associated with the peculiar
nature of the school library, see ante, at 868-869; if schools may be
used to inculcate ideas, surely libraries may play a role in that process. n1 Instead, I suggest that certain forms
of state discrimination [*879] between ideas are improper.
In particular, our
precedents command the conclusion that the State may not act to deny access to
an idea simply because state officials disapprove of that idea for partisan or
political reasons. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 As a practical matter, however, it is difficult to see the First Amendment
right that I believe is at work here playing a role in a school's choice of
curriculum. The
school's finite resources -- as well as the limited number of hours in the day
-- require that education officials make sensitive choices between subjects to
be offered and competing areas of academic emphasis; subjects generally are
excluded simply because school officials have chosen to devote their resources
to one rather than to another subject. As is explained below, a choice of this
nature does not run afoul of the First Amendment. In any event, the Court has
recognized that students' First Amendment rights in most cases must give way if
they interfere "with the schools' work or [with] the rights of other
students to be secure and to be let alone," Tinker v. Des
Moines School Dist., 393 U.S. 503, 508 (1969), and such interference will
rise to intolerable levels if public participation in the management of the
curriculum becomes commonplace. In contrast, library books on a shelf intrude
not at all on the daily operation of a school.
I also have some doubt that there is a theoretical distinction between removal
of a book and failure to acquire a book. But as Judge Newman observed, there is
a profound practical and evidentiary distinction between the two actions:
"removal, more than failure to acquire, is likely to suggest that an
impermissible political motivation may be present. There are many reasons why a
book is not acquired, the most obvious being limited resources, but there are
few legitimate reasons why a book, once acquired, should be removed from a
library not filled to capacity." 638 F.2d 404, 436 (CA2 1980) (Newman, J.,
concurring in result).
n2 In effect, my
view presents the obverse of the plurality's analysis: while the plurality
focuses on the failure to provide information, I find crucial the State's
decision to single out an idea for disapproval and then deny access to it.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Certainly, the
unique environment of the school places substantial limits on the extent to
which official decisions may be restrained by First Amendment values. But that
environment also makes it particularly important that some limits be
imposed. The school is designed to, and inevitably will, inculcate ways of
thought and outlooks; if educators intentionally may eliminate all diversity of
thought, the school will [***455] "strangle the free mind at its source and teach
youth to discount important principles of our government as mere
platitudes." Barnette, 319 U.S., at 637. As I see it, then,
the question in this case is how to make the delicate accommodation between the
limited constitutional restriction that I think is imposed by the First
Amendment, and the necessarily broad state authority to regulate education. In
starker terms, we
must reconcile the schools' "inculcative" function with the First
Amendment's bar on "prescriptions of orthodoxy."
II
In my view, we
strike a proper balance here by holding that school officials may not remove
books for the purpose of restricting access to the political ideas or social
perspectives discussed in them, when that action is motivated simply by
[*880] the
officials' disapproval of the ideas involved. It does not seem radical to
suggest that state action calculated to suppress novel ideas or concepts is
fundamentally antithetical to the values of the First Amendment. At a minimum,
allowing a school board to engage in such conduct hardly teaches children to
respect the diversity of ideas that is fundamental to the American system. In
this context, then, the school board must "be able to show that its action
was caused [**2815] by something more than a mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular
viewpoint," Tinker v. Des Moines School Dist., 393
U.S., at 509, and
that the board had something in mind in addition to the suppression of partisan
or political views it did not share.
As I view it, this is a narrow principle. School officials must be able to choose one book
over another, without outside interference, when the first book is deemed more
relevant to the curriculum, or better written, or when one of a host of other
politically neutral reasons is present. These decisions obviously will
not implicate First Amendment values. And even absent space or financial
limitations, First Amendment principles would allow a school board to refuse to
make a book available to students because it contains offensive language, cf. FCC
v. Pacifica Foundation, 438 U.S. 726, 757 (1978) (POWELL, J.,
concurring), or because it is psychologically or intellectually inappropriate
for the age group, or even, perhaps, because the ideas it advances are
"manifestly inimical to the public welfare." Pierce v. Society
of Sisters, 268 U.S. 510, 534 (1925). And, of course, school officials may choose one book over
another because they believe that one subject is more important, or is more
deserving of emphasis.
As is evident from this discussion, I do not share JUSTICE REHNQUIST's view
that the notion of "suppression of ideas" is not a useful analytical
concept. See post, at 918-920 (dissenting opinion). Indeed, JUSTICE
REHNQUIST's discussion itself [*881] demonstrates that "access
to ideas" has been given meaningful application in a variety of contexts.
See post, at 910-920, 914 ("[education] consists of the selective
presentation and explanation of ideas"). [***456] And I
believe that tying the First Amendment right to the purposeful
suppression of ideas makes the concept more manageable than JUSTICE REHNQUIST
acknowledges. Most
people would recognize that refusing to allow discussion of current events in
Latin class is a policy designed to "inculcate" Latin, not to
suppress ideas. Similarly, removing a learned treatise criticizing American
foreign policy from an elementary school library because the students would not
understand it is an action unrelated to the purpose of suppressing
ideas. In my view, however, removing the same treatise because it is "anti-American"
raises a far more difficult issue.
It is not a sufficient answer to this problem that a State operates a school in
its role as "educator," rather than its role as
"sovereign," see post, at 908-910 (REHNQUIST, J.,
dissenting), for the First Amendment has application to all the State's
activities. While the State may act as "property owner" when it
prevents certain types of expressive activity from taking place on public
lands, for example, see post, at 908-909, few would suggest that the
State may base such restrictions on the content of the speaker's message, or
may take its action for the purpose of suppressing access to the ideas
involved. See Police Department of Chicago v. Mosley, 408
U.S., at 96. And while
it is not clear to me from JUSTICE REHNQUIST's discussion whether a State
operates its public libraries in its "role as sovereign," surely
difficult constitutional problems would arise if a State chose to exclude
"anti-American" books from its public libraries -- even if those
books remained available at local bookstores.
Concededly, a tension
exists between the properly inculcative purposes of public education and any
limitation on the school board's absolute discretion to choose academic
materials. But that tension demonstrates only that the problem
[*882] here is a difficult one, not that the problem should be
resolved by choosing one principle over another. As the Court has recognized,
school officials must have the authority to make educationally appropriate
choices in designing a curriculum: "the State may 'require teaching by
instruction and study of all in our history and in the structure
[**2816] and organization of our government, including the
guaranties of civil liberty, which tend to inspire patriotism and love of
country.'" Barnette, 319 U.S., at 631, quoting Minersville
School District v. Gobitis, 310 U.S. 586, 604 (1940) (Stone, J.,
dissenting). Thus school
officials may seek to instill certain values "by persuasion and
example," 319 U.S., at 640, or by choice of emphasis. That sort of positive
educational action, however, is the converse of an intentional attempt to
shield students from certain ideas that officials find politically distasteful.
Arguing that the majority in the community rejects the ideas involved, see post,
at 889, 891-892 (BURGER, C. J., dissenting), does not refute this principle: "The very
purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of
majorities and [***457] officials . . . ." Barnette,
319 U.S., at 638.
\\\\\\\\\\\\\\\\\\\
Because I believe that the plurality has derived a standard similar to the one
compelled by my analysis, I join all but Part II-A(1) of the plurality opinion.
[*883]
JUSTICE WHITE, concurring in the judgment.
[***HR1D] [1D]
The District Court found that the books were removed from the school library
because the school board believed them "to be, in essence, vulgar."
474 F.Supp. 387, 397 (EDNY 1979). Both Court of Appeals judges in the majority
concluded, however, that there was a material issue of fact that precluded
summary judgment sought by petitioners. The unresolved factual issue, as I
understand it, is the reason or reasons underlying the school board's removal
of the books. I am not inclined to disagree with the Court of Appeals on such a
fact-bound issue and hence concur in the judgment of affirmance. Presumably
this will result in a trial and the making of a full record and findings on the
critical issues.
The plurality seems compelled to go further and issue a dissertation on the
extent to which the First Amendment limits the discretion of the school board
to remove books from the school library. I see 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.
\\\\\\\\\\\\\\\
We should not decide
constitutional questions until it is necessary to do so, or at least
until there is better reason to address them than are evident here. I therefore
concur in the judgment of affirmance.
DISSENT:
[*885] CHIEF JUSTICE BURGER, with whom JUSTICE POWELL, JUSTICE
REHNQUIST, and JUSTICE O'CONNOR join, dissenting.
The First Amendment, as with other parts of the Constitution, must deal with
new problems in a changing world. In an attempt to deal with a problem in an
area traditionally left to the states, a plurality of the Court, in a lavish
expansion going beyond any prior holding under the First Amendment, expresses
its view that a school board's decision concerning what books are to be in the
school library is subject to federal-court review. n1 Were this to become the law,
this Court would come perilously close to becoming a "super censor"
of school board library decisions. Stripped to its essentials, the issue comes down to
two important [***459] propositions: first, whether local schools
are to be administered by elected school boards, or by federal judges and
teenage pupils; and second, whether the values of morality, good taste,
and relevance to education are valid reasons for school board decisions
concerning the contents of a school library. In an attempt to
place this case within the protection of the First Amendment, the plurality
suggests a new "right" that, when shorn of the plurality's rhetoric,
allows this Court to impose [*886] its own views about what books
must be made available to students. n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 At the outset, the plurality notes that certain school board members found
the books in question "objectionable" and "improper" for
junior and senior high school students. What the plurality apparently finds
objectionable is that the inquiry as to the challenged books was initially
stimulated by what is characterized as "a politically conservative
organization of parents concerned about education," which had concluded that
the books in question were "improper fare for school students." Ante,
at 856. As noted by the District Court, however, and in the plurality opinion, ante,
at 859, both parties substantially agreed about the motivation of the school
board in removing the books:
"[The]
board acted not on religious principles but on its conservative educational
philosophy, and on its belief that the nine books removed from the school
library and curriculum were irrelevant, vulgar, immoral, and in bad taste,
making them educationally unsuitable for the district's junior and senior high
school students." 474 F.Supp. 387, 392 (1979).
\\\\\
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**2818] I
A
[***HR2B] [2B]
I agree with the fundamental proposition that "students do not 'shed their
constitutional rights to freedom of speech or expression at the schoolhouse
gate.'" Ante, at 865. For example, the Court has held that a
school board cannot compel a student to participate in a flag salute ceremony, West
Virginia Bd. of Education v. Barnette, 319 U.S. 624 (1943), or prohibit
a student from expressing certain views, so long as that expression does not
disrupt the educational process. Tinker v. Des Moines School Dist.,
393 U.S. 503 (1969). Here,
however, no restraints of any kind are placed on the students. They are free to
read the books in question, which are available at public libraries and
bookstores; they are free to discuss them in the classroom or elsewhere.
Despite this absence of any direct external control on the students' ability to
express themselves, the plurality suggests that there is a new First Amendment
"entitlement" to have access to particular books in a school library.
The plurality cites Meyer v. Nebraska, 262 U.S. 390 (1923),
which struck down a state law that restricted the [*887] teaching
of modern foreign languages in public and private schools, and Epperson
v. Arkansas, 393 U.S. 97 (1968), which declared unconstitutional under
the Establishment Clause a law banning the teaching of Darwinian evolution, to
establish the validity of federal-court interference with the functioning of
schools. The plurality finds it unnecessary "to re-enter this difficult
terrain," ante, at 861, yet in the next breath relies on these
very cases and others to establish the previously unheard of "right"
of access to particular books in the [***460] public school
library. n3 The apparent underlying basis of the plurality's view seems to be
that students have an enforceable "right" to receive the information
and ideas that are contained in junior and senior high school library books. Ante,
at 866. This "right" purportedly follows "ineluctably" from
the sender's First Amendment right to freedom of speech and as a
"necessary predicate" to the recipient's meaningful exercise of his
own rights of speech, press, and political freedom. Ante, at 866-867.
No such right, however, has previously been recognized.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Of course, it is perfectly clear that, unwise as it would be, the board could wholly
dispense with the school library, so far as the First Amendment is concerned.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
It is true that where there is a willing distributor of materials, the
government may not impose unreasonable obstacles to dissemination by the third
party. Virginia Pharmacy Board v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748 (1976). And where the speaker desires to
express certain ideas, the government may not impose unreasonable restraints. Tinker
v. Des Moines School Dist., supra. It does not follow, however, that a
school board must affirmatively aid the speaker in his communication with the
recipient. In short the
plurality suggests today that if a writer has something to say, the government
through its schools must be the courier. None of the cases cited by the
plurality establish this broad-based proposition.
First, the plurality argues that the right to receive ideas is derived in part
from the [**2819] sender's First Amendment rights to
[*888] send them. Yet we have previously held that a sender's
rights are not absolute. Rowan v. Post Office Dept., 397 U.S.
728 (1970). n4 Never before today has the Court indicated that the government
has an obligation to aid a speaker or author in reaching an audience.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - -End Footnotes-
- - - - - - - - - - - - - - - -
Second, the plurality
concludes that "the right to receive ideas is a necessary predicate to the
recipient's meaningful exercise of his own rights of speech, press, and
political freedom." Ante, at 867 (emphasis in original). However, the "right to
receive information and ideas," Stanley v. Georgia,
394 U.S. 557, 564 (1969), cited ante, at 867, does not carry with it the
concomitant right to have those ideas affirmatively provided at a particular
place by the government. The plurality cites James Madison to
emphasize the importance of having an informed citizenry. Ibid. We all
agree with Madison, of course, that knowledge is necessary for effective
government. Madison's view, however, does not establish a right to
have particular books retained on the school library shelves if the school
board decides that they are inappropriate or irrelevant to the school's
mission. Indeed,
if the need to have an informed citizenry creates a "right," why is
the government not also required to provide ready access to a [***461] variety of information? This
same need would support a constitutional "right" of the people to
have public libraries as part of a new constitutional "right" to
continuing adult education.
The plurality also cites Tinker, supra, to establish that the
recipient's right to free speech encompasses a right to have particular books
retained on the school library shelf. Ante, at 868. But the cited
passage of Tinker notes only that school officials may not prohibit
a student from expressing his or her view on a subject unless that expression
interferes with [*889] the legitimate operations of the school. The government does not
"contract the spectrum of available knowledge." Griswold
v. Connecticut, 381 U.S. 479, 482 (1965), cited ante, at 866,
by choosing not
to retain certain books on the school library shelf; it simply chooses not to
be the conduit for that particular information. In short, even
assuming the desirability of the policy expressed by the plurality, there is
not a hint in the First Amendment, or in any holding of this Court, of a
"right" to have the government provide continuing access to certain
books.
B
Whatever role the
government might play as a conduit of information, schools in particular ought
not be made a slavish courier of the material of third parties. The plurality
pays homage to the ancient verity that in the administration of the public
schools "'there is a legitimate and substantial community interest in
promoting respect for authority and traditional values be they social, moral,
or political.'" Ante, at 864. If, as we have held, schools may legitimately be
used as vehicles for "inculcating fundamental values necessary to the
maintenance of a democratic political system," Ambach
v. Norwick, 441 U.S. 68, 77 (1979), school authorities must have broad discretion to
fulfill that obligation. 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
[**2820] 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.
[*890] The plurality concludes that under the Constitution school
boards cannot choose to retain or dispense with books if their discretion is
exercised in a "narrowly partisan or political manner." Ante,
at 870. The plurality concedes that permissible factors are whether the books
are "pervasively vulgar," ante, at 871, or educationally
unsuitable. Ibid. "Educational suitability," however, is a standardless
phrase. This conclusion will undoubtedly be drawn in many -- if not most --
instances because of the decisionmaker's content-based [***462] judgment that the
ideas contained in the book or the idea expressed from the author's method of
communication are inappropriate for teenage pupils.
The plurality also tells us that a book may be removed from a school library if
it is "pervasively vulgar." But why must the vulgarity be
"pervasive" to be offensive? Vulgarity might be concentrated in a
single poem or a single chapter or a single page, yet still be inappropriate.
Or a school board might reasonably conclude that even "random"
vulgarity is inappropriate for teenage school students. A school board might
also reasonably conclude that the school board's retention of such books gives
those volumes an implicit endorsement. Cf. FCC v. Pacifica
Foundation, 438 U.S. 726 (1978).
Further, there is no guidance whatsoever as to what constitutes
"political" factors. This Court has previously recognized that public
education involves an area of broad public policy and "'[goes] to the
heart of representative government.'" Ambach v. Norwick,
supra, at 74. As such, virtually all educational decisions necessarily
involve "political" determinations.
What the
plurality views as valid reasons for removing a book at their core involve
partisan judgments. Ultimately the federal courts will be the judge of whether
the motivation for book removal was "valid" or
"reasonable." Undoubtedly the validity of many book removals will
ultimately turn on a judge's evaluation of the books. Discretion must be used,
[*891] and
the appropriate body to exercise that discretion is the local elected school
board, not judges. n5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 Indeed, this case is illustrative of how essentially all decisions
concerning the retention of school library books will become the responsibility
of federal courts. As noted in n. 1, supra, the parties agreed that
the school board in this case acted not on religious principles but "on
its belief that the nine books removed from the school library and curriculum
were irrelevant, vulgar, immoral, and in bad taste, making them educationally
unsuitable for the district's junior and senior high school students."
Despite this agreement as to motivation, the case is to be remanded for a
determination of whether removal was in violation of the standard adopted by
the plurality. The school board's error appears to be that it made its own
determination rather than relying on experts. Ante, at 874-875.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
We can all agree
that as a matter of educational policy students should have wide access
to information and ideas. But the people elect school boards, who in turn
select administrators, who select the teachers, and these are the individuals
best able to determine the substance of that policy. The plurality fails to
recognize the fact that local control of education involves democracy in a
microcosm. In most public schools in the United States the parents have
a large voice in running the school. n6 Through participation in the election
of school board members, the parents influence, if not control, the direction
of their children's education. A school board is not [**2821] a
giant [***463] bureaucracy far removed from accountability for its
actions; it is truly "of the people and by the people." A school
board reflects its constituency in a very real sense and thus could not long
exercise unchecked discretion in its choice to acquire or remove books. If the
parents disagree with the educational decisions of the school board, they can
take steps to remove the board members from office. Finally, even if
[*892] parents and students cannot convince the school board that
book removal is inappropriate, they have alternative sources to the same end.
Books may be acquired from bookstores, public libraries, or other alternative
sources unconnected with the unique environment of the local public schools. n7
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - -
II
No amount of "limiting" language could rein in the sweeping
"right" the plurality would create. The plurality distinguishes
library books from textbooks because library books "by their nature are
optional rather than required reading." Ante, at 862. It is not
clear, however, why this distinction requires greater scrutiny before
"optional" reading materials may be removed. It would appear that
required reading and textbooks have a greater likelihood of imposing a
"'pall of orthodoxy'" over the educational process than do optional
reading. Ante, at 870. In essence, the plurality's view transforms the
availability of this "optional" reading into a "right" to
have this "optional" reading maintained at the demand of teenagers.
The plurality also limits the new right by finding it applicable only to the removal
of books once acquired. Yet if the First Amendment commands that certain books
cannot be removed, does it not equally require that the same books be acquired?
Why does the coincidence of timing become the basis of a constitutional
holding? According to the plurality, the evil to be avoided is the
"official suppression of ideas." Ante, at 871. 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.
n8 Similarly, a decision to [*893] eliminate certain material from
the curriculum, history for example, would carry an equal -- probably greater
-- prospect of "official suppression." Would the decision be subject
to our review?
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - -End Footnotes- -
- - - - - - - - - - - - - - -
III
Through use of bits and pieces of prior opinions unrelated to the issue of this
case, the plurality demeans our function of constitutional adjudication. Today
the plurality suggests that the Constitution distinguishes
[***464] between school libraries and school classrooms, between removing
unwanted books and acquiring books. Even more extreme, the plurality
concludes that the Constitution requires school boards to justify to
its teenage pupils the decision to remove a particular book from a school
library. 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, dissenting.
The plurality opinion today rejects a basic concept of public school education
in our [**2822] country: that the States and locally elected school
boards should have the responsibility for determining the educational policy of
the public schools. After
today's decision any junior high school student, by instituting a suit against
a school board or teacher, may invite a judge to overrule an educational
decision by the official body designated by the people to operate the schools.
[*894] I
School boards are
uniquely local and democratic institutions. Unlike the governing bodies of
cities and counties, school
boards have only one responsibility: the education of the youth of our country
during their most formative and impressionable years. Apart from
health, no subject is closer to the hearts of parents than their children's
education during those years. For these reasons, the governance of elementary and
secondary education traditionally has been placed in the hands of a local board,
responsible locally to the parents and citizens of school districts. Through
parent-teacher associations (PTA's), and even less formal arrangements that
vary with schools, parents are informed and often may influence decisions of
the board. Frequently, parents know the teachers and visit classes. It is fair
to say that no single agency of government at any level is closer to the people
whom it serves than the typical school board.
I therefore view today's decision with genuine dismay. Whatever the final
outcome of this suit and suits like it, the resolution of educational policy
decisions through litigation, and the exposure of school board members to
liability for such decisions, can be expected to corrode the school board's
authority and effectiveness. As is evident from the generality of the
plurality's "standard" for judicial review, the decision as to the
educational worth of a book is a highly subjective one. Judges rarely are as
competent as school authorities to make this decision; nor are judges
responsive to the parents and people of the school district. n1
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - -End Footnotes-
- - - - - - - - - - - - - - - -
[*895] The new constitutional right, announced by the plurality, is
described as a "right to receive ideas" in a school. Ante,
at 867. As the dissenting opinions [***465] of THE CHIEF JUSTICE
and JUSTICE REHNQUIST so powerfully demonstrate, however, this newfound right
finds no support in the First Amendment precedents of this Court. And even
apart from the inappropriateness of judicial oversight of educational policy, the new constitutional right is framed in
terms that approach a meaningless generalization. It affords little guidance to
courts, if they -- as the plurality now authorizes them -- are to oversee the
inculcation of ideas. The plurality does announce the following standard: A
school board's "discretion may not be exercised in a narrowly partisan or
political manner." Ante, at 870. But this is a standardless
standard that affords no more than subjective guidance to school boards, their
counsel, and to courts that now will be required to decide whether a particular
decision was made in a "narrowly partisan or political manner." Even
the "chancellor's foot" standard in ancient equity jurisdiction was
never this fuzzy.
As JUSTICE REHNQUIST tellingly observes, how does one limit -- on a principled
basis -- today's new constitutional right? If a 14-year-old child may challenge a school
board's decision to remove a book from the library, upon what theory is a court
to prevent a like challenge to a school board's decision not to purchase that
identical book? And at the even more "sensitive" level of
"receiving ideas," does today's decision entitle student oversight of
which courses may be added or removed from the curriculum, or even of what a
particular teacher elects to teach or not teach in the [**2823]
classroom? Is not the "right to receive ideas" as much -- or indeed
even more -- implicated in these educational questions? n2
- - - - - - - - - - - - - - - - - -Footnotes- - - - -- - - - -End Footnotes- -
- - - - - - - - - - - - - - -
[*896] II
The plurality's reasoning is marked by contradiction. It purports to
acknowledge the traditional role of school boards and parents in deciding what
should be taught in the schools. It states the truism that the schools are
"vitally important 'in the preparation of individuals for participation as
citizens,' and as vehicles for 'inculcating fundamental values necessary to the
maintenance of a democratic political system.'" Ante, at 864. Yet
when a school board, as in this case, takes its responsibilities seriously and
seeks to decide what the fundamental values are that should be imparted, the
plurality finds a constitutional violation.
Just this Term the Court held, in an opinion I joined, that the children of
illegal aliens must be permitted to attend the public schools. See Plyler
v. Doe, ante, p. 202. Quoting from earlier opinions, the Court noted
that the "'public [school is] a most vital civic institution for the
preservation of democratic system of government'" and that the public
[***466] schools are "the primary vehicle for transmitting
'the values on which our society rests.'" Ante,
at 221. By denying to illegal aliens the opportunity "to absorb the values
and skills upon which our social order rests" the law under review placed
a lifelong disability upon these illegal alien children. Ibid.
Today the plurality drains much of the content from these apt phrases. A school board's attempt to
instill in its students the ideas and values on which a democratic system
depends is viewed as an impermissible suppression of other ideas and values on
which other systems of government and other societies thrive. Books may not be
removed because [*897] they are indecent; extol violence,
intolerance, and racism; or degrade the dignity of the individual. Human history, not the least
that of the 20th century, records the power and political life of these very
ideas. But they are not our ideas or values. Although I
would leave this educational decision to the duly constituted board, I
certainly would not require a school board to promote ideas and values
repugnant to a democratic society or to teach such values to children.
In different contexts and in different times, the destruction of written
materials has been the symbol of despotism and intolerance. But the removal of
nine vulgar or racist books from a high school library by a concerned local
school board does not raise this specter. For me, today's decision symbolizes a
debilitating encroachment upon the institutions of a free people.
Attached as an Appendix hereto is Judge Mansfield's summary of excerpts from
the books at issue in this case.
APPENDIX TO OPINION OF POWELL, J.,
DISSENTING
"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
[**2824] 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?" [*898] 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 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 [***467] 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 mother-fucking 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.'
[*899] 215 'Ding-dong giddyap. A Jew's cock's in the
devil's hock.'
216 'You cocksucker Zhid, I ought 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.'
[**2825] 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 [***468] people in 1944.
[*900] 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 then 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 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 I haven't
[*901] 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,'
[***469] 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 -- .'
[**2826] 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 [*902]
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.'
[*903] 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, [***470] the
male above the female. . . .'
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 [**2827] may
even use members of other species, or they may masturbate. . . .'
"10) READER FOR WRITERS . . ."
638 F.2d 404, 419-422, n. 1 (CA2 1980) (Mansfield, J., dissenting).
[*904]
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and
JUSTICE POWELL join, dissenting.
\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
Respondents also
agreed that, "[although] the books themselves [*907] were
excluded from use in the schools in any way, [petitioners] have not precluded
discussion about the themes of the books or the books themselves." App. 140. JUSTICE BRENNAN's concern with
the "suppression of ideas" thus seems entirely unwarranted on this state
of the record, and his creation of constitutional rules to cover such
eventualities is entirely gratuitous. \\\\\\
In the course of his discussion, JUSTICE BRENNAN states:
"Petitioners rightly possess significant discretion to determine the
content of their school libraries. But that discretion may not be exercised in
a narrowly partisan or political manner. If a Democratic school board,
motivated by party affiliation, ordered the removal of all books written by or
in favor of Republicans, few would doubt that the order violated the
constitutional rights of the students . . . . The same conclusion would surely
apply if an all-white school board, motivated by racial animus, decided to
remove all books authored by blacks or advocating racial equality and
integration. Our Constitution does not permit the official suppression of ideas."
Ante, at 870-871 (emphasis in original).
[**2829] I can cheerfully concede all of this, but as in so many
other cases the extreme examples are seldom the ones that arise in the real
world of constitutional litigation. In this case the facts taken most
favorably to respondents suggest that nothing of this sort happened. The nine
books removed undoubtedly did contain "ideas," but in the light of
the excerpts from them found in the dissenting opinion of Judge Mansfield in
the Court of Appeals, it is apparent that eight of them contained demonstrable
amounts of vulgarity and profanity, see 638 F.2d 404, 419-422, n. 1 (CA2 1980),
and the ninth contained [*908] nothing that
could be considered partisan or political, [JAW:
refers to the book containing Jonathan Swift’s Modest Proposal] see id.,
at 428, n. 6. As already demonstrated, respondents admitted as much.
Petitioners did not, for the reasons stated hereafter, run afoul of the First
and Fourteenth Amendments by removing these particular books from the library
in the manner in which they did. I would save for another day -- feeling quite
confident that that day will not arrive -- the extreme examples posed in
JUSTICE BRENNAN's opinion.
[***473] B
Considerable light is shed on the correct resolution of the constitutional
question in this case by examining the role played by petitioners. Had petitioners
been the members of a town council, I suppose all would agree that, absent a
good deal more than is present in this record, they could not have prohibited
the sale of these books by private booksellers within the municipality. But we
have also recognized that the government may act in other capacities than as
sovereign, and when it does the First Amendment may speak with a different
voice:
"[It] cannot be gainsaid that the State has interests as an employer in regulating
the speech of its employees that differ significantly from those it
possesses in connection with regulation of the speech of the citizenry in
general. The
problem in any case is to arrive at a balance between the interests of the
teacher, as a citizen, in commenting upon matters of concern and the interest
of the State, as an employer, in promoting the efficiency of the public
services it performs through its employees." Pickering
v. Board of Education, 391 U.S. 563, 568 (1968).
By the same token, expressive conduct which may not be prohibited by the State
as sovereign may be proscribed by the State as property owner: "The
State, no less than a private owner of property, has power to preserve the
property under its control for the use to which it is lawfully dedicated."
[*909] Adderley v. Florida, 385 U.S. 39, 47
(1966) (upholding state prohibition of expressive conduct on certain state
property).
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, at least at the elementary and
secondary school level, 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 every one of
these areas the members of a school board will act on the basis of their own
personal or moral values, will attempt to mirror those of the community, or
will abdicate the making of such decisions to so-called "experts." n5 In this
connection I find myself entirely in agreement with the observation of the
Court of Appeals for the Seventh Circuit in Zykan v. Warsaw
Community School Corp., 631 F.2d 1300, 1305 [**2830] (1980),
that it is
"permissible and appropriate for local boards to make educational
decisions based upon their personal social, political and moral views." In the very
course of administering the many-faceted operations of a school district, the
mere decision to purchase [***474] some books will necessarily
preclude the possibility of purchasing others. The decision to teach a particular subject may
preclude the possibility of teaching another subject. A decision to replace a
teacher because of ineffectiveness may by implication be seen as a
disparagement of the subject matter taught. In each of these instances,
however, the book or the exposure to the [*910] 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. In short, actions by the government as
educator do not raise the same First Amendment concerns as actions by the
government as sovereign.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 There are intimations in JUSTICE BRENNAN's opinion that if petitioners had only
consulted literary experts, librarians, and teachers their decision might
better withstand First Amendment attack. Ante, at 874, and n.
26. These
observations seem to me wholly fatuous; surely ideas are no more accessible or
no less suppressed if the school board merely ratifies the opinion of some
other group rather than following its own opinion.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
II
JUSTICE BRENNAN would hold that the First Amendment gives high school and junior
high school students a "right to receive ideas" in the school. Ante,
at 867. This right is a curious entitlement. It exists only in the library of
the school, and only if the idea previously has been acquired by the school in
book form. It provides no protection against a school board's decision not to
acquire a particular book, even though that decision denies access to ideas as
fully as removal of the book from the library, and it prohibits removal of
previously acquired books only if the remover "[dislikes] the ideas
contained in those books," even though removal for any other reason also
denies the students access to the books. Ante, at 871-872.
But it is not the limitations which JUSTICE BRENNAN places on the right with
which I disagree; they simply demonstrate his discomfort with the new doctrine
which he fashions out of whole cloth. 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.
A
[***HR2C] [2C]
The right described by JUSTICE BRENNAN has never been recognized in the
decisions of this Court and is not supported by their rationale. JUSTICE
BRENNAN correctly observes that students do not "shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate."
[*911] Tinker v. Des Moines School District, 393
U.S. 503, 506 (1969). But, as this language from Tinker suggests, our
past decisions in this area have concerned freedom of speech and expression,
not the right of access to particular ideas. We have held that students may not
be prevented from symbolically expressing their political views by the wearing
of black arm bands, Tinker v. Des Moines School District, supra,
and that they may not be forced to participate in the symbolic expression of
saluting the flag, West Virginia Board of Education v. Barnette,
319 U.S. 624 (1943). But these decisions scarcely control the case before us. Neither the District Court nor
the Court of Appeals found that petitioners' removal of books from the school
libraries infringed respondents' right to speak or otherwise express
themselves.
[***475] Despite JUSTICE BRENNAN's suggestion to the contrary, this Court has never held that
the First Amendment grants junior high school and high school students a right
of access to certain information in school. It is true that the Court has
recognized a limited version of that right in other settings, and JUSTICE
BRENNAN quotes language from five such decisions and one of his own concurring
opinions in order to demonstrate the viability of the right-to-receive
doctrine. Ante, at 866-867. But not one of these cases concerned or
even purported to discuss elementary or secondary educational institutions. n6
[**2831] JUSTICE BRENNAN brushes over this significant
[*912] omission in First Amendment law by citing Tinker v.
Des Moines School District for the proposition that "students too
are beneficiaries of this [right-to-receive] principle." Ante, at
868. But Tinker held no such thing. One may read Tinker in
vain to find any recognition of a First Amendment right to receive information.
Tinker, as already mentioned, was
based entirely on the students' right to express their political views.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - -End Footnotes- - - -
- - - - - - - - - - - - -
Nor does the right-to-receive doctrine recognized in our past decisions apply
to schools by analogy. JUSTICE BRENNAN correctly characterizes the right of
access to ideas as "an inherent corollary of the rights of free speech and
press" which "follows ineluctably from the sender's First Amendment
right to send them." Ante, at 867 (emphasis in original). But he
then fails to recognize the predicate right to speak from which the students'
right to receive must follow. It would be ludicrous, of course, to contend that
all authors have a constitutional right to have their books placed in junior
high school and high school libraries. And yet without such a right our prior
precedents would not recognize the reciprocal right to receive information.
JUSTICE BRENNAN disregards this inconsistency with our prior cases and fails to
explain the constitutional or logical underpinnings of a right to hear ideas in
a place where no speaker has the right to express them.
JUSTICE BRENNAN
also correctly notes that the reciprocal nature of the right to receive information
derives [***476] from the fact that it "is a necessary
predicate to the recipient's meaningful [*913] exercise of
his own rights of speech, press, and political freedom." Ibid.
(emphasis in original). But the denial of access to ideas inhibits one's own acquisition of
knowledge only when that denial is relatively complete. If the denied ideas are
readily available from the same source in other accessible locations, the
benefits to be gained from exposure to those ideas have not been foreclosed by
the State. This fact is inherent in the right-to-receive cases relied on by
JUSTICE BRENNAN, every one of which concerned the complete denial of access to
the ideas sought. n7 Our past decisions are thus unlike [**2832]
this case where the removed books are readily available to students and
nonstudents alike at the corner bookstore or the public library.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - -End
Footnotes- - - - - - - - - - - - - - - - -
B
There are even greater reasons for rejecting JUSTICE BRENNAN's analysis,
however, than the significant fact that we have never adopted it in the past.
"The importance of public schools in the preparation of individuals for
participation as citizens, and in the preservation of the values on which our
society rests, has long been recognized by our decisions." Ambach
v. Norwick, 441 U.S. 68, 76 (1979). Public [*914] schools
fulfill the vital role of teaching students the basic skills necessary to
function in our society, and of "inculcating fundamental values necessary
to the maintenance of a democratic political system." Id., at 77.
The idea that such students have a right of access, in
the school, to information other than that thought by their educators to be
necessary is contrary to the very nature of an inculcative education.
Education consists of the selective presentation and
explanation of ideas. The effective acquisition of knowledge depends upon an orderly exposure to relevant information. Nowhere is
this more true than in
elementary and secondary schools, where, unlike the broad-ranging
inquiry available to university students, the courses taught are those thought most relevant
to the young students' individual development. Of necessity, elementary and
secondary educators must separate the relevant from the irrelevant, the
appropriate from the inappropriate. Determining what information not to present
to the students is often as important as identifying relevant material. This
winnowing process necessarily leaves much information to be discovered by
students at another [***477] time or in another place, and is fundamentally
inconsistent with any constitutionally required eclecticism in public education.
JUSTICE BRENNAN rejects this idea, claiming that it "overlooks the unique
role of the school library." Ante, at 869. But the unique role
referred to appears to be one of JUSTICE BRENNAN's own creation. No previous
decision of this Court attaches unique First Amendment significance to the
libraries of elementary and secondary schools. And in his paean of praise to
such libraries as the "environment especially appropriate for the
recognition of the First Amendment rights of students," ante, at
868, JUSTICE BRENNAN turns to language about public libraries from the
three-Justice plurality in Brown v. Louisiana, 383 U.S. 131
(1966), and to language about universities and colleges from Keyishian
v. Board of Regents, 385 U.S. 589 (1967). Ante, at 868. Not
only is his [*915] authority thus transparently thin, but also, and
more importantly, his
reasoning misapprehends the function of libraries in our public school system.
As already
mentioned, elementary and secondary schools are inculcative in nature. The
libraries of such schools serve as supplements to this inculcative role. Unlike
university or public libraries, elementary and secondary school libraries are not
designed for freewheeling inquiry; they are tailored, as the public school
curriculum is tailored, to the teaching of basic skills and ideas. Thus,
JUSTICE BRENNAN cannot rely upon the nature of school libraries to escape the
fact that the First Amendment right to receive information simply has no
application to the one
public institution which, by its very nature, is a place for the selective
conveyance of ideas.
After all else is said, however, the most obvious reason that petitioners' removal of
the books did not violate respondents' right to receive information is the
ready availability of the books elsewhere. Students are not denied books by
their removal from a school library. The books may be borrowed from a public
library, read at a university library, purchased at a bookstore, or loaned by a
friend. The government [**2833] as educator does not seek to reach
beyond the confines of the school. Indeed, following the removal from the
school library of the books at issue in this case, the local public library put
all nine books on display for public inspection. Their contents were fully
accessible to any inquisitive student.
\\\\\\\\\\\\\\\\\\
[**2834]
It is difficult to tell from JUSTICE [***479] BRENNAN's opinion
just what motives he would consider constitutionally impermissible. I had
thought that the First Amendment proscribes content-based restrictions on the
marketplace of ideas. See Widmar v. Vincent, 454 U.S. 263,
269-270 (1981). JUSTICE
BRENNAN concludes, however, that a removal decision based solely upon the
"educational suitability" of a book or upon its perceived vulgarity
is "'perfectly permissible.'" Ante, at 871
(quoting Tr. of Oral Arg. 53). But such determinations are based as much on the
content of the book as determinations that the book espouses pernicious
political views.
\\\\\\\\\\\\\\\\\\\\\\\\
D
Intertwined as a
basis for JUSTICE BRENNAN's opinion, along with the "right to receive
information," is the statement that "[our] Constitution does not
permit the official suppression of ideas." Ante, at 871
(emphasis in original). There would be few champions, I suppose, of the idea
that our Constitution does permit the official suppression of ideas;
my difficulty is not with the admittedly appealing catchiness of the phrase,
but with my doubt
that it is really a useful analytical tool in solving difficult First Amendment
problems. Since the phrase appears in the opinion "out of the blue,"
without any reference to previous First Amendment decisions of this Court, it
would appear that the Court for years has managed to decide First Amendment
cases without it.
I would think that prior cases decided under established First Amendment doctrine
afford adequate guides in this area without resorting to a phrase which seeks
to express "a complicated process of constitutional adjudication by a
deceptive formula." Kovacs v. Cooper, 336 U.S. 77, 96
(1949) (Frankfurter, J., concurring). A school board which publicly adopts a policy
forbidding the criticism of United States foreign policy by any student, any
teacher, or any book on the library shelves is indulging in one kind of
"suppression of ideas." A school board which adopts a policy that
there shall be no discussion of current events in a class for high school
sophomores devoted to second-year Latin "suppresses ideas" in quite a
different context. A teacher who had a lesson plan consisting of 14 weeks of
study of United States history from 1607 to the present time, but who because
of a week's illness is forced to forgo the most recent 20 years of American
history, may "suppress ideas" in still another way.
[*919] I think a far more satisfactory basis for addressing these
kinds of questions is found in the Court's language in Tinker v. Des
Moines School District, where we noted:
[***480] "[A] particular symbol -- black armbands worn to
exhibit opposition to this Nation's involvement in Vietnam -- was singled out
for prohibition. Clearly, the prohibition of expression of one particular
opinion, at least without evidence that it is necessary to avoid material and
substantial interference with schoolwork or discipline, is not constitutionally
permissible." 393 U.S., at 510-511.
In the case before us the petitioners may in one sense be said to have
"suppressed" the "ideas" of vulgarity and profanity, but
that is hardly an apt description of what was done. They ordered the removal of
books containing vulgarity and profanity, but they did not attempt to preclude discussion about
the themes of the books or the books themselves. App. 140. Such
a decision, [**2835] on respondents' version of the facts in this
case, is sufficiently related to "educational suitability" to pass
muster under the First Amendment.
E
\\\\\\\\\\\\\\\\\\\\
[*920] I think the Court will far better serve the cause of First
Amendment jurisprudence by candidly recognizing that the role of government as
sovereign is subject to more stringent limitations than is the role of
government as employer, property owner, or educator. It must also
be recognized that the
government as educator is subject to fewer strictures when operating an
elementary and secondary school system than when operating an institution of
higher learning. Cf. Tilton v. Richardson, 403 U.S. 672,
685-686 (1971) (opinion of BURGER, C. J.). With respect to the education of children in
elementary and secondary schools, the school board may properly determine in
many cases that a particular book, a particular course, or even a particular
area of knowledge is not educationally suitable for inclusion within the body
of knowledge which the school seeks to impart. Without more,
this is not a condemnation of the book or the course; it is only a
determination akin to that referred to by the Court in Village of Euclid
v. Ambler Realty Co., 272 U.S. 365, 388 (1926): "A nuisance may
be merely a right thing in the wrong place, -- like a pig in the parlor instead
of the barnyard."
III
Accepting as true
respondents' assertion that petitioners acted on the basis of their own
"personal values, morals and tastes," App. 139, I find the actions taken in
this case hard [***481] to distinguish from the myriad choices made
by school boards in the routine supervision of elementary and secondary schools. "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." Epperson v. Arkansas,
393 U.S. 97, 104 (1968). In this case respondents' rights of free speech and expression were
not infringed, and by respondents' own admission no ideas were
"suppressed." I would leave to another day the harder cases.
[*921]
JUSTICE O'CONNOR,
dissenting.
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 to
discuss it. As JUSTICE REHNQUIST persuasively argues, the plurality's analysis
overlooks the fact that in this case the government is acting in its special role as educator.
I do not
personally agree with the Board's action with respect to some of the
books in question here, but it is not the function of the courts to make the decisions that
have been properly relegated to the elected members of school boards. It is the
school board that must determine educational suitability, and it has
done so in this case. I therefore join THE CHIEF JUSTICE's dissent.