The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The question came before the Court in Bd. of Ed. v. Pico, and four Justices (led by Justice Brennan) took the view that "local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books." Four other Justices (led by Chief Justice Burger) expressly rejected this view (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans). And the swing vote, Justice White, expressly refused to opine on this issue:
The plurality … issue[s] 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….
[This case] poses difficult First Amendment issues in a largely uncharted field. 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.
Justice White concurred with Justice Brennan's opinion solely as to the propriety of remanding for a trial on whether the school board removed the books based on viewpoint or instead based on their being "in essence, vulgar" (which even the challengers "implicitly conceded" would be a permissible basis for removing the books, at least if they "were pervasively vulgar"). But he disagreed with Justice Brennan on the consequence of any such finding:
- Justice Brennan's view was that, if there was a finding that the removals were based on viewpoint, that would mean the removals violated the First Amendment.
- Justice White's view as that, if there was such a finding, "there will be time enough to address the First Amendment issues that may then be presented" (which echoes his conclusion that he saw "no necessity for" resolving those questions in his opinion).
What about lower courts? Two federal appellate courts have characterized the Brennan opinion as expressing the view of the Court, see Monteiro v. Tempe Union High School Dist. (9th Cir. 1998) and Turkish Coalition of Am., Inc. v. Bruininks (10th Cir. 2012).
But three other federal appellate courts have disagreed, and have recognized—I think correctly—that Pico didn't resolve the issue; e.g., Griswold v. Driscoll (1st Cir. 2010):
Pico's rule of decision, however, remains unclear; three members of the plurality recognized and emphasized a student's right to free enquiry in the library, but Justice Blackmun disclaimed any reliance on location and resorted to a more basic principle that a state may not discriminate among ideas for partisan or political reasons, and Justice White concurred in the judgment without announcing any position on the substantive First Amendment claim.
Likewise with Muir v. Alabama Ed. Television Comm'n (5th Cir. 1982), which concluded that in Pico "the Supreme Court decided neither the extent nor, indeed, the existence [or nonexistence], of First Amendment implications in a school book removal case," because "[t]he Fifth Member of the Court [Justice White] voting for the judgment expresses no opinion on the First Amendment issues." And likewise with ACLU of Florida v. Miami-Dade County School Bd. (11th Cir. 2009), which noted that the view that "school officials may not remove books from 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'" was "the standard that failed to attract a majority in the Pico case."
The matter, then, is not clear. Lower courts may indeed themselves decide that viewpoint-based removals of books from school libraries violate the First Amendment, and they may find Justice Brennan's opinion to be persuasive. And schools may reasonably worry that this might happen, and might conclude that it's better to avoid that litigation. (Prof. Justin Driver so suggests, in Tony Mauro's recent Freedom Forum column.) But courts and schools may instead conclude otherwise, and be more persuaded by Chief Justice Burger's dissent.
Note, by the way, that this is all just about public school library books. Decisions to remove books or topics from public school curricula wouldn't be precluded even under Justice Brennan's opinion; that opinion noted that "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," and added (in a part that got three votes),
We are … in full agreement with [the school board] 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." …
Petitioners might well defend their claim of absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values.
And the dissenting four Justices were even more firm on this point about school board control over the curriculum. (The question whether the Establishment Clause limits school authority over including religious topics or excluding topics that are perceived as antireligious is a separate matter; I'm speaking here of non-religion-related curriculum choices.)