New Yorker Article Seems to Misdescribe S. Ct.'s Decision on School Library Book Removal

The article claims that a prohibition on viewpoint-based removals of school library books is "settled law" announced by a "majority opinion." But that's not so.

The Dec. 7 article asks, "How Would This Supreme Court Rule on Book Banning?," and says this in paragraphs 4, 5, and 7 (out of 7) (emphasis added):

All this raises the question of what the current Supreme Court would do if it were to decide to take up one of the simmering book-ban cases. The key precedent on the issue is Island Trees School District v. Pico, from 1982. That case arose out of the removal of ten books from public middle-school and high-school libraries in a school district on Long Island, New York, by the local board of education. Though Island Trees is forty years old, the case concerns books addressing the same themes included in today's bans: Richard Wright's "Black Boy," Kurt Vonnegut's "Slaughterhouse-Five," Eldridge Cleaver's "Soul on Ice," and titles by Bernard Malamud and Alice Childress. The vice-president of the local board, a retired New York City police sergeant, had deemed the books obscene, "anti-American," and "just plain filthy," though he admitted that he hadn't read them. In fact, he heard about them at a meeting of an organization called Parents of New York United (P.O.N.Y.U.), a conservative group from Watkins Glen, in far-western New York, which had compiled a list of objectionable books and given it to the Long Island school-board members. P.O.N.Y.U. is a precursor of sorts for Moms for Liberty, the modern conservative book-banning group from Florida. (Indeed, Governor Reynolds spoke alongside other state Republican lawmakers at an event hosted by Moms for Liberty at a middle school in Des Moines just months before passing the Iowa law.)

The Island Trees case made its way to the Supreme Court after a district-court judge in Brooklyn, appointed by Ronald Reagan, ruled in favor of the school board, finding that students had no right to access the books in question. The Second Circuit Court of Appeals reversed that ruling, and the Supreme Court took up the subsequent appeal. There, in a majority decision written by Justice William Brennan, the Court invalidated the ban, echoing a prior ruling that students do not surrender their First Amendment rights "at the schoolhouse gate." But the over-all ruling is hardly a model of judicial clarity. The decision was 5–4, with seven separate written opinions, including four dissents. The majority noted that citizens, including minors, have a right to receive information and ideas. Nevertheless, the opinion is limited to the removal of books that are already in a library, and the Court makes explicit that it is not ruling that school libraries must acquire any particular books. Moreover, Chief Justice Warren Burger wrote a dissent in which he made the evergreen argument that parents should have "influence, if not control" over their children's education, equating parental control to "democracy in a microcosm." He also suggested that children who are denied books in school libraries are not prevented from obtaining them: they can simply go to a bookstore and buy them. Finally and, perhaps, ominously, Burger asserts that there is no constitutional requirement that schools maintain libraries at all. "The board," he wrote, "could wholly dispense with the school library, so far as the First Amendment is concerned." …

This Supreme Court has been protective of some speech, particularly religious speech. (See Justice Neil Gorsuch's opinions upholding a public-high-school football coach's right to hold group prayer on the fifty-yard line, and in favor of a wedding-Web-site designer who feared being forced to work for same-sex couples.) But it's not clear what the current Court would do when the desire to ban speech—or, in the question of book banning, to restrict access to certain ideas—is articulated as a parental right. We know, from the Dobbs decision, that the conservative Justices are not averse to overruling settled precedent, even with regard to a constitutional right. And what about the voices of fundamentalist religious groups who are certain to weigh in on behalf of bans? Will the Court grant deference to a religion-based desire to restrict the information that all public-school students can have access to? It may be that those who favor bans will find a more receptive bench now than they did four decades ago.

But I think this is mistaken, because there was no majority decision in Pico, no settled precedent on the subject, and no majority judgment that children have a right to receive information from a school library.

Rather, the Court split 4-1-4. 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 (emphasis added):

The District Court found that the books were removed from the school library because the school board believed them "to be, in essence, vulgar." Both Court of Appeals judges in the majority concluded, however, that there was … [an] unresolved factual issue[:] … 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….

I thus prefer the course taken by the Court in [an earlier precedent on a different topic] …. The Court [in that case] expressly abjured issuing its advice on the legal issues involved…. The [precedent] turned on issues of statutory construction. It is even more important that we take a similar course … in this [case], which 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. I therefore concur in the judgment of affirmance.

Justice White thus 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 (8th 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. But courts and schools may instead conclude otherwise, and be more persuaded by Chief Justice Burger's dissent.

My own view is more in line with the dissent: I think a public school is entitled to decide which viewpoints to promote through its own library; school authorities can decide that their library will be a place where they provide books they recommend as particularly interesting/useful/enlightening/etc. The process of selecting library books is part of the government's own judgment about what views it wishes to promote; and the ability to reconsider selection decisions (including in response to pressure from the public, which is to say from the ultimate governors of the public schools) should go with the ability to make those decisions in the first place. To be sure, some such decisions may be foolish or narrow-minded, but they're not unconstitutional.

[The analysis in this post is adapted from earlier ones.]