Law & Courts

Yanking Books From School Libraries: What the Supreme Court Has Said, and Why It’s Murky

By Mark Walsh — December 15, 2021 11 min read
Books packed up in a cardboard box.
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The heading on a list of books that a politically conservative parents group found objectionable for school libraries was ominous.

“DO NOT LET THIS MATERIAL FALL INTO THE HANDS OF OUR YOUNGSTERS,” it said, regarding works that included literary-prize winners, minority perspectives on the American experience, and discussions of sexuality, as well as plenty of examples of vulgar language.

Three local school board members who attended the conservative group’s conference took the list back to their community and worked to find out whether their school libraries had any of the books on the shelves. One board member was particularly agitated about books on the list that addressed racial issues.

It may sound like something happening today in Texas or any number of other areas around the country. But this was 1975 in Levittown, N.Y., the famous planned community on Long Island. The board members took action to remove a handful of the listed books, leading a few years later to an important—but complicated—U.S. Supreme Court decision about the limitations on school authorities to remove books for political or ideological reasons.

That 1982 decision in Board of Education, Island Trees Union Free School District v. Pico was so fractured that legal experts debate to this day the degree of legal guidance it provides for the newest wave of book challenges in schools.

Justice William J. Brennan Jr. wrote a sometimes-soaring opinion that said the First Amendment imposes limits on school boards’ authority to remove library books and that students have a right to receive information.

“A school library, no less than any other public library, is a place dedicated ‘to quiet, to knowledge, and to beauty’,” Brennan wrote, quoting an earlier high-court decision. “We hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books.”

But Brennan’s opinion in Pico was for a three-justice plurality of the court, not a majority. Two other justices concurred in varying degrees with a bottom-line judgment in favor of the students in the Pico case. The complicated result left much to be interpreted by lower courts and legal experts.

Pico is a nebulous decision, but lower courts have understood it to say that there are some limitations on the ability of school authorities to ban and remove books from school libraries,” said Justin Driver, a Yale University law professor who wrote about the case in The Schoolhouse Gate, his 2018 book about landmark student-rights cases in the Supreme Court.

“It’s definitely relevant today,” Driver said in an interview.

Neal Ramee, a partner in a Raleigh, N.C., law firm with an education practice that advises school districts throughout North Carolina, has studied the finer points of the Pico case for years.

“There are a lot of different opinions out there about how to interpret Pico,” he said. “At a minimum, we know that intent [of school officials] matters and there is not an untrammeled right to remove books.”

A Texas lawmaker circulates an 850-book list

Many educators would probably agree that now is a good time for dusting off a nearly 40-year-old Supreme Court decision if it offers any assistance in fending off the latest wave of book challenges. Across the country, some parents and lawmakers have called for the removal of long lists of “objectionable” books touching on race, sex, gender identity, and sexual orientation, among other topics.

In November, Texas Gov. Greg Abbott, a Republican, issued a directive to the Texas Education Agency and other state officials to develop standards to prevent “pornography” and “other obscene content” in school materials. Abbott cited two books with LGBTQ themes, Gender Queer: a Memoir by Maia Kobabe, and In the Dream House by Carmen Maria Machado, both of which the governor said depict pornographic or sexual acts.

Meanwhile, a Republican Texas state representative, Matt Krause, has launched a legislative-committee inquiry into education content in the state’s schools. He released a list of some 850 books, many with race or LGBTQ themes, and has asked school districts to determine whether they have copies in their school libraries or “classroom collections.”

Krause, who is running for state attorney general, includes on his list The Confessions of Nat Turner, a 1967 Pulitzer Prize-winning novel by William Styron; Between the World and Me by Ta-Nehisi Coates; LGBT Families by Leanne K. Currie-McGhee; The Letter Q: Queer Writers’ Notes to their Younger Selves, edited by Sarah Moon; and Michael J. Basso’s The Underground Guide to Teenage Sexuality: An Essential Handbook for Today’s Teens and Parents.

Krause also asked in his letter that districts identify any other books that “might make students feel discomfort, guilt, anguish, or any other form of psychological distress because of their race or sex.”

And it isn’t just in Texas. In North Carolina, Lt. Gov. Mark Robinson in October called for the removal from school library shelves three books the Republican claimed were sexually explicit: Gender Queer; Lawn Boy by Jonathan Evison; and George by Alex Gino. A group of parents this month filed a criminal complaint related to those books against the Wake County school system, alleging the books’ content may violate obscenity laws.

“These are organized efforts by groups that have developed playbooks on how to challenge books in schools,” said April Dawkins, an assistant professor of library and information science in the School of Education at the University of North Carolina-Greensboro. “My concern is that all these challenges will lead to a chilling effect on the collections and the collection-development decisions of school librarians.”

A decades-old dispute continues to resonate

The Pico case began in September 1975, when the three members of the Island Trees school board attended a conference of Parents of New York United, a politically conservative group focused on state education policy. That’s where they got the list of books deemed objectionable by the group.

One of the board members, Frank Martin, took it upon himself to slip into a high school library one evening (with the aid of a janitor), where he found card catalogue entries for nine books from the conservative group’s list. Two other books from the list were found elsewhere in the school system.

Martin was particularly agitated that one of the books—A Hero Ain’t Nothin’ But A Sandwich by Alice Childress— highlighted George Washington’s ownership of enslaved people.

Among the other books from the list found in the Island Trees library were Slaughterhouse-Five by Kurt Vonnegut Jr.; Best Short Stories of Negro Writers, edited by Langston Hughes; Go Ask Alice by an anonymous author; Black Boy by Richard Wright; and Soul On Ice by Eldridge Cleaver.

In early 1976, the school board directed administrators to remove the books from library shelves and deliver them to the central office for review. The board justified its action in a press release by calling the books “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy,” adding that it was “our duty, our moral obligation, to protect the children in our schools from this moral danger as surely as from physical and medical dangers.”

A review committee made up of four parents and four school staff members made a range of recommendations about the books, including that five be retained and two be removed because of vulgarities. (The panel could not agree about the others.) But the Island Trees school board largely rejected the committee’s work and ordered nine of the 12 books removed from school libraries or the curriculum.

A group of students, including Steven Pico, a student council president, sued the school board under the First Amendment. They lost in a federal district court, but a panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, reinstated the students’ suit. One judge in a 2-1 majority said a trial was necessary on whether the school board had been motivated justifiably by a desire to remove vulgar and sexually explicit works or by an impermissible intent to suppress ideas.

The case reached the Supreme Court in the spring of 1982. The archives of several of the justices’ papers from that time show that the court struggled with both the substantive issues and procedural peculiarities of the case.

The students attracted five votes in the justices’ initial internal deliberation. Brennan, as senior justice in that potential majority, assigned the opinion to himself.

He soon circulated a draft opinion that said, “Local school boards have broad discretion in the management of school affairs, but such discretion must be exercised in a manner that comports with the transcendent imperatives of the First Amendment.”

Brennan emphasized that the case involved not the regular curriculum or a school system’s acquisition of library books but their removal. He stressed that school libraries were a place for students to engage in “self-education and individual enrichment,” and that the books there were optional reading. Brennan’s opinion further suggested it would be permissible for school boards to remove books based on “pervasive vulgarity” or “educational unsuitability.”

Justice Lewis F. Powell Jr., a former state and local school board member in Virginia, was lined up in support of the Island Trees school board, and he was not swayed to change his view by Brennan’s draft opinion.

As reflected in his papers at Washington and Lee University, Powell underlined “transcendent imperatives” in Brennan’s draft and wrote in the margin: “nonsense.”

Brennan had a bigger problem. Justice Byron R. White, who was one of the five who had voted tentatively for the students, had issues with Brennan’s opinion.

“As your draft is currently written, I doubt that I could join it,” White wrote in a memo to Brennan.

“You propose as the constitutional benchmark the intention to suppress constitutionally protected ideas with which the school board disagrees, or the intention to impose a political or ideological orthodoxy” upon secondary school students, White added in the May 10, 1982, memo. “I am frank to say that I scarcely know what a ‘political or ideological orthodoxy’ is, and it would take years to find out. The removal of any book based on its content could be challenged on this basis.”

Brennan’s opinion, in the end, would be signed in full by Justices Thurgood Marshall and John Paul Stevens, and in part by Justice Harry A. Blackmun.

White wrote an opinion concurring in the judgment, which meant the 2nd Circuit’s opinion was affirmed, and White called for a trial and further development of the factual record of the case. He wrote that he saw no necessity for the court “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.”

Chief Justice Warren E. Burger wrote the main dissent, joined by Powell, William H. Rehnquist, and Sandra Day O’Connor. Burger worried that “essentially all decisions concerning the retention of school library books will become the responsibility of federal courts.”

Powell, in a separate dissent, expressed concern about the erosion of the authority of local school boards to make educational decisions.

“In different contexts and in different times, the destruction of written materials has been the symbol of despotism and intolerance,” Powell wrote. “But the removal of nine vulgar or racist books from a high school library by a concerned local school board does not raise this specter.”

He attached an appendix with excerpts highlighting vulgarities and sexual and racial references in the removed books. Rehnquist and O’Connor also wrote separate dissents.

(After the decision, the challenged books were returned to the shelves in the Island Trees district, but there was never a trial about the school board’s motivations. In 1983, the school board voted 4-3 to settle the case.)

What does ‘Pico’ mean for today’s book-removal controversies?

Charles R. Waggoner, a professor of education administration at Eastern New Mexico University in Portales, N.M., says that when he teaches the Pico case (typically to educators seeking graduate degrees), they divide sharply on whether it stands for the idea that school boards may remove books from school libraries.

“I tell my students that, at the very least, when they get into a principalship, they need to have procedures in place to handle book-removal requests,” said Waggoner, a former longtime principal.

Yale’s Driver says that while “there is no clear First Amendment holding in Pico, I view Justice White as providing the crucial fifth vote for the idea that there are some limitations on what school officials may do with the [school library] volumes they have already acquired.”

Ramee, the North Carolina education lawyer, said lower courts have interpreted Pico in multiple ways. One federal appeals court, ruling in 2009 in a challenge to a book about Cuba in the Miami-Dade County, Fla., school system, held that “Pico is of no precedential value” to the First Amendment issues in the case.

But other courts have construed Pico to stand for the idea that school boards may not remove books because they dislike the ideas contained in them. For example, lower courts have overruled the removal of the Harry Potter books in an Arkansas district and a lesbian romance, Annie on My Mind by Nancy Garden, by a Kansas school board.

“Despite the absence of a clean First Amendment holding, Pico‘s bottom line has enjoyed considerable vitality in lower courts,” Driver wrote in his book.

“The court did something” in Pico, said Ramee. “There aren’t five votes for the right for students to receive ideas. But there are five votes for a remand [for trial]. … Justice White at least thinks the state of mind and the motivation of the school board was relevant. So the logical inference is that school boards don’t have unlimited authority to remove books. Intent matters.”

“It’s frustrating that there isn’t more” to Pico, Ramee added. “But you can’t ignore it.”

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