Sharply Divided Court Limits Board's Power To Ban Books

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WASHINGTON--In a carefully circumscribed venture into the sensitive area of book banning in public schools, the U.S. Supreme Court ruled this summer that First Amendment guarantees limit the power of school boards to remove books from school libraries.

The Court's 5-to-4 decision in Board of Education, Island Trees Union Free School District No. 26 v. Pico affirms an appellate-court decision returning the closely watched censorship case to federal district court for trial.

Although a majority of the Justices agreed that the Long Island, N.Y., school board can be required to defend in court its motives for having removed nine books from its school libraries in 1976, the Justices did not agree on the constitutional basis for their ruling.

The splintered majority ruling means that the Court provided no constitutional standard or guidelines to govern future action on the issue, either in lower courts or by public-school officials.

The case stems from a suit brought against the school board by five students who charged that the book removal violated their First Amendment rights. Among the students was Steven A. Pico, a senior and student-council president at Island Trees High School.

Despite the lack of a majority opinion, civil-liberties lawyers and anti-censorship groups describe the Court's June 25 decision as a significant victory because it establishes that book banning in public schools may be subject to federal-court re-view. Had the high Court ruled in favor of the school board, they point out, school officials could presume to have total discretion in such matters.

Instead, in a plurality opinion for the Court, four Justices rejected the school board's claim of unlimited authority to remove the books, holding that such action by school officials is unconstitutional if it is motivated by the desire "to suppress ideas."

Associate Justice William J. Brennan Jr., in an opinion joined by Associate Justices Thurgood Marshall, John Paul Stevens, and, in part, by Harry A. Blackmun, also agreed with the U.S. Court of Appeals for the Second Circuit that sufficient question existed as to the motives of the school board to grant the students' request for a trial.

Associate Justice Byron R. White, providing the fifth vote for the majority, said only that the facts of the case deserved court review. His position has been interpreted by civil libertarians as supporting, to an uncertain degree, the students' arguments in the case, but Justice White was critical of the plurality opinion, calling it an unnecessary "dissertation" on First Amendment limits with respect to school libraries.

The plurality opinion carefully excluded matters of curriculum, textbooks, and any required reading, as well as the acquisition of school-library books, from the question before the Court. At issue, Justice Brennan wrote, was the narrow question of constitutional limits on the school board's authority to remove books from the school libraries.

As the "principal locus" of voluntary, free inquiry in schools, he said, the school library's "special characteristics" make it an environment "especially appropriate for the recognition of the First Amendment rights of students." Students, he said, have a constitutional ''right to receive" information and ideas.

Justice Blackmun, while rejecting such a right, held that in general "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."

In a strongly worded dissent, Chief Justice Warren E. Burger said that the plurality opinion proposes that the Court "come perilously close to becoming a 'super censor' of school-board library decisions."

"I categorically reject this notion that the Constitution, rather than parents, teachers, and local school boards, must determine how the standards of morality and vulgarity are to be treated in the classroom," the Chief Justice wrote.

Joining his dissent were Associate Justices Lewis F. Powell, William H. Rehnquist, and Sandra Day O'Connor, although each filed separate opinions as well.

A former school-board official, Associate Justice Powell wrote: "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."

Despite the Justices' notable lack of consensus, legal experts say the decision is as important for its "symbolic impact" as for its practical effect.

The decision may be narrow, but it is not insignificant, said Stephen Arons, professor of legal studies at the University of Massachusetts in Amherst. "It's basically a victory for personal liberty and freedom of thought. For the first time, the Court has said that in the school library, authorities cannot manipulate content."

Similar views were expressed by others who oppose censorship in public schools.

The decision is "very important," commented Gara LaMarche, associate director of the New York Civil Liberties Union (NYCLU), which handled the suit for the students. "At a time when we are experiencing a virtual epidemic of book removals, the Supreme Court has established the right to bring school boards to court. It has said that they can't remove books to suppress ideas."

Whether the decision will affect the number of challenges to school books is hard to predict, he added, but "it undoubtedly will make people look over their shoulders before taking books off the shelf."

Knowing that they might have to defend their actions in court, school officials are likely to be more "cautious," said Arthur Eisenberg, a staff attorney at nyclu and co-counsel for the students.

But the case is "most significant because we didn't lose," he said. "In its first foray into book banning in the context of the school environment," the Court placed limits on school authorities.

In terms of practical consequences, he added, "the Court's opinions have provided an important wedge for the litigation process to open schools to judicial review of school authorities' positions."

"Blackmun's opinion is the more satisfying," he noted, because "it goes to the heart of the matter" in recognizing that school officials as arms of the state cannot engage in constitutionally impermissible activity.

Because none of the opinions represent a majority view, they will have "less precedential weight" in other courts, but they can be used to argue future cases, he said. "The next case should try to expand on the principles that have been articulated."

Representatives of some school officials' were less enthusiastic about the decision.

Said Scott D. Thomson, executive director of the National Association of Secondary School Principals, which filed a friend-of-the-court brief in support of the Island Trees board: "We're a little disappointed."

"Our position is that the school curriculum is the responsibility of the school board as it implements its obligations under its authority of the state. We believe that the school library is a part of the curriculum; schools aren't providing public libraries for their students." An unfortunate outcome, he added, "is that school boards and administrators may now assume they have less authority than they do have."

Although his organization is not "pleased," said Thomas A. Shannon, executive director of the National School Boards Association (NSBA), "we're cheered by the narrowness of the decision." The association did not enter the case.

Noting the plurality opinion's numerous references to a school board's broad, discretionary authority, he said, "the Court seems to give a maximum amount of discretion to school boards within the restrictions of the First Amendment."

Several educators said they think the Court gave a tacit boost to the use of the formal book-removal procedures advocated by many education, publishing, and library groups as a means to ensure objective handling of book challenges.

"Had the board followed available professional opinion about school-library policies, the Justices might well have voted 9-0 to support dismissal of the suit," said Victor G. Rosenblum, professor of law at Northwestern University, in a speech at a conference on schools and the Constitution in July.

"That the board ... first appointed its own 'Book Review Committee' ... and then rejected without reasons the recommendations of that committee heightened the possibility, according to the plurality, that the board's book-removal decision was based on a constitutionally impermissible intent to impose a political orthodoxy on students," he said.

The decision should send school boards "scurrying to review their policies," according to Mr. Shannon. If their procedures are adequate, he said, boards "may immunize themselves from a successful challenge."

But aspects of the plurality's opinion drew criticism from opponents of school censorship. In addition to distinguishing between school libraries and curricula, the opinion suggested that book removals motivated by judgments of "pervasive vulgarity" or "educational suitability" were permissibly motivated.

Critics argue that such distinctions amount to authorizing state censorship in the classroom and lead authorities to mask partisan aims in educational jargon.

"Several Justices went out of their way to say that the local political majority has the power to set the curriculum according to community values," said Mr. Arons. "That means that at some point they have power over beliefs."

"What is pervasively vulgar to one, isn't to another," said Judith Krug, director of the office for intellectual freedom of the American Library Association. Many of the people who object to certain books, she added, "are proofreaders, not readers for meaning."

By lending support to official control of the classroom, she added, the decision "provides a mechanism not to help our young people develop into thinking citizens, able to participate in the constitutional process."

Vol. 01, Issue 40, Pages 9, 12

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