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High Court Hears Argument in New York Book-Ban Case

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Washington--The U.S. Supreme Court heard arguments last week in a case that could both define the rights of school boards to judge the "educational appropriateness" of books and further define the First Amendment rights of students.

Depending on its outcome, the case, Island Trees Union Free School District v. Pico, which has been in the courts for more than six years, could also establish a requirement that school boards base the removal of books from the school library or curriculum on more specific objective criteria than the school board used in this case.

Books "Just Plain Filthy'

The case involves the constitutionality of a decision by a Levittown, N.Y., local school board to remove nine books--among them Bernard Malamud's The Fixer, Kurt Vonnegut's Slaughterhouse Five, Desmond Morris's The Naked Ape, and Eldridge Cleaver's Soul On Ice--from the library of the district's Island Trees High School on the grounds that they were unsuitable educational material. The school board said it decided to remove the books because they were "anti-American, anti-Christian, anti-Semitic, and just plain filthy."

In September 1975, three school board members who had obtained a list of "objectionable" books from a group called Parents of New York United initiated the ban.

Five students, including Steven A. Pico, sued the board, alleging infringement of their First Amendment rights. A federal district court ruled there were no First Amendment rights at stake and dismissed the case, but the U.S. Court of Appeals for the Second Circuit subsequently ruled that the students were entitled to a trial.

The Supreme Court must decide if the case is worthy of trial in federal court.

The school board argues that such matters are within school boards' authority to "transmit community values" to students and do not belong in the federal courts.

Last week, the Justices asked George W. Lipp Jr., attorney for the school board, if there would ever be a book-removal case in which a federal court should become involved.

Mr. Lipp said he hoped there would not be except when there "is a comprehensive and obvious attempt to sanitize a whole body of thought, or to wipe away all traces of a particular ideology."

In response to Mr. Lipp's assertion that a board should be allowed to express its own social, moral, and political values in its decisions, Associate Justice Sandra Day O'Connor asked, "If a school board removed all books referring to Republicans because it was a good Democratic board, should that be unreviewable?"

Mr. Lipp said he was referring to "politics in the loose sense--the study of government."

'Instances of Vulgarity'

Alan H. Levine, attorney for the students, argued that "random instances of vulgarity"--one of the criteria the board used--"are not a constitutional basis for removal." He said objective standards for the removal of books would be permissible, but that such standards were not used by the board in this case.

One Justice posed the hypothetical question, "What if a board decides not to acquire a book because of 'vulgarities'?"

Mr. Levine replied, "I think that if a school board said we are not going to buy The Fixer, a Pulitzer Prize-winning novel, because of a few dirty words, that is not a constitutionally defensible decision."

The Justices asked whether the courts would have to define the difference between "vulgar" and "obscene." [Books classified "obscene" in New York State may be banned for minors.] "They may have to evaluate some standards," Mr. Levine replied.

But in the Pico case, Mr. Levine said, the board was wrapping "its political concerns in the cloak of educational suitability."

In its Supreme Court brief, the school district says the appeals court's order for trial conflicts with several other appeals-court decisions on censorship. The brief cites a Second Circuit ruling in 1972 (Presidents Council District 25 v. Community School Board) that "books ... can be removed by the same authority which was empowered to make the selection in the first place."

All but one of the books, the school board's brief states, contain "indecent matter, vulgarities, profanities, explicit description of sexual relations, [and] some perverted or disparaging remarks about blacks, Jews, or Christ."

The brief argues that boards have legal authority to make "value judgments" about which books to choose in the face of the diminishing funds and increasing state and federal regulation.

The board also says its actions did not infringe upon the rights of high-school students, who "at best possess substantially diminished First Amendment rights." The information the students in the case express a desire "to know," the board says, is available from many other sources.

In answer to the students' argument that in their daily lives they hear language as "vulgar" as that contained in the books, the district's brief says:

"The students may well argue that the language ... [is] no different from that to which they [are] exposed when not in school. This is still no reason why the school board should place its imprimatur on such language or to give it an appearance of legitimacy."

The students' First Amendment rights were violated, their brief states, because the courts have judged in the past that the amendment "does not tolerate laws or policies that cast a pall of orthodoxy over the classroom."

'Mighty Resource'

The "First Amendment function" of school libraries, the brief states, is to be "a mighty resource in the marketplace of ideas."

Students have no First Amendment rights at home, but they do at school, including the right to have access in the school library to a wide range of ideas, even ones a school board may consider "vulgar," the brief says.

None of the books violated the New York State law banning "obscene" material for minors, the brief asserts, arguing that the board banned them partially for containing "vulgar" language.

The brief also objects to the "vague and amorphous criteria" the board used in judging the books.

And, the brief says, an appeals court in another case, Minarcini v. Strongsville City School District, said a school board could remove books only when there are reasons that are "neutral in First Amendment terms"--such as age of books, limited shelf space, [and] obsolescence."

The banning also violated the First Amendment rights of the authors and publishers of the books, the brief states.

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