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In 1982, the Supreme Court addressed the legality of the actions of a Long Island school board that ordered the removal from the school library of several books that school board members described as “anti-American, anti-Christian, anti-Semitic, and just plain filthy.” The Court framed the issue like this:
“…does the First Amendment impose any limitations upon the discretion of [the school board] to remove library books from the Island Trees High School and Junior High School?” (Emphasis in the original).
The first thing any good lawyer should point out about the Pico decision is that there is no “majority” opinion, and thus no “binding legal precedent.” None of the justices on the court could draft an opinion that garnered support from four other justices. The case was decided based on the plurality opinion of four of the justices, while one other “concurred in the judgment.” The other four strongly dissented. So we do not have a binding legal precedent authored by a majority opinion of the Court. Nevertheless, the Court’s plurality opinion is the necessary starting point for any discussion of this issue.
That opinion notes the authority and discretion that school officials have to make decisions. It notes that the courts should not intervene in school-based conflicts unless “basic constitutional values are directly and sharply implicated in those conflicts.” Were they implicated here? Were they implicated “directly and sharply”? The plurality opinion said yes:
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.
The First Amendment not only protects the right to expression; it also protects “the right to receive information and ideas.” The school board members argued that they had the “unfettered discretion to transmit community values.” The Court disagreed with the “unfettered” nature of that discretion, particularly with regard to the library:
[The school board members] 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 [their] 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.
The court then laid out the limitations on school board discretion. That discretion “may not be exercised in a narrowly partisan manner.” “Our Constitution does not permit the official suppression of ideas.” Thus it comes down to motivation: why these books? The court put it this way:
If [the board members] intended by their removal decision to deny [students] access to ideas with which [the board members] disagreed, and if this intent was the decisive factor in [the board’s] decision, then [the board members] have exercised their discretion in violation of the Constitution.
On the other hand, the removal of books that are “pervasively vulgar” or not “educational suitable” is perfectly OK.
The court did not decide what motivated the school board members, noting that the evidence in the record did not reveal a clear cut answer to that question. So the case was remanded to a lower court for further proceedings.
In the next two Daily Dawgs we will take a look at two Circuit Court cases that came after the Pico decision. Hang in there with us!
DAWG BONE: BOOKS CAN BE REMOVED IF PERVASIVELY VULGAR. A LITTLE BIT OF VULGARITY MUST BE OK.
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Tomorrow: Voodoo and Hoodoo in Louisiana