This is the week the American Library Association celebrates “Banned Books Week.” The Association keeps track of attempts by parents to remove books from school curricula or school libraries–or even attempts by citizens to have books removed from public libraries–as well as more extreme forms of book banning in the past. The ALA urges you to celebrate your right to read, by reading a great banned book like Huckleberry Finn,</i> or The Handmaid’s Tale.</i> (In fact, of the 100 titles on the Modern Library’s recent list of best twentieth century novels, a third have been banned, or actually censored, in American history!)
Fortunately, no books on the ALA’s list of this year’s most frequently banned books have been targeted due to content about evolution. But in a famous Supreme Court decision on the subject, Board of Ed. Island Trees Union Free School Dist. No. 26 v. Pico,</i> 457 U.S. 853 (1982), parents attempted to remove several books from the school library, including one on evolutionary theory: The Naked Ape</i> by Desmond Morris.
As Justice Brennan explained in his plurality decision, “the Board issued a press release justifying its action. . .[by] characteriz[ing] the removed books as ‘anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy,’ and conclud[ing] that ‘[i]t is our duty, our moral obligation, to protect the children in our schools from this moral danger as surely as from physical and medical dangers.’” Id.</i> at 857.
Students sued, arguing that this violated the First Amendment. The resulting opinion was fractured, which means that not all of it is law, and one reason is because this case involves complicated line-drawing. On one hand, the Court acknowledged the fact that parents and school officials have the right to control what students are taught, to a large degree–but on the other hand, several Justices held that this right was limited, lest parents and officials wield the power like censors.
The plurality opinion, by Justice Brennan, was joined by Justices Marshall, Stephens, and Blackmun, held that there were really two questions in the case:<blockquote>First, does the First Amendment impose any limitations upon the discretion of petitioners to remove library books from the Island Trees High School and Junior High School? Second, if so, do the affidavits and other evidentiary materials before the District Court, construed most favorably to respondents, raise a genuine issue of fact whether petitioners might have exceeded those limitations?</blockquote>
Id.</i> at 863. Justices Brennan, Marshall, and Stephens, but not Blackmun, held 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.’” Id.</i> at 864. But transmitting community values was limited–after all, the Court had already held that students can’t be forced to salute the flag. From that and other past cases, Justices Brennan, Marhsall and Stephens derived a “right to receive ideas”:<blockquote>the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library. Our precedents have focused “not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas.” And we have recognized that “the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.” In keeping with this principle, we have held that in a variety of contexts “the Constitution protects the right to receive information and ideas.” This right is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution, in two senses. First, the right to receive ideas follows ineluctably from the sender’s First Amendment right to send them. . .. More importantly, the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom. Madison admonished us: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”</blockquote>
Id.</i> at 866-67 (citations omitted).
So while the school can transmit cultural values, it must not intrude on a student’s right to receive ideas. How to draw that line? Justices Brennan, Marshall and Stephens explained that the line is drawn on the basis of “the unique role of the school library.” Id.</i> at 869. Use of the library, unlike exposure to curriculum in the classroom,<blockquote>is completely voluntary. . .. [T]he libraries afford [students] an opportunity at self-education. . .. Petitioners might well defend their claim of absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values. But we think that petitioners’ reliance upon that duty is misplaced where, as here, they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom, into the school library and the regime of voluntary inquiry that there holds sway.</blockquote>
Id. (emphasis added). The italicized portion is the important part of the plurality decision. Under Pico parents may control the use of books in the curriculum, but removing books from school libraries is a far more serious First Amendment concern. See also id.</i> at 872 (“local school boards may not remove books from school 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.’”)
When it comes to “the question of the extent to which the First Amendment places limitations upon the discretion of petitioners to remove books from their libraries,” id.</i> at 869, Justices Brennan, Marshall, Stephens, and Blackmun explained that parents and school authorities may not make decisions on library contents<blockquote>in a narrowly partisan or political manner. If a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books. The same conclusion would surely apply if an all-white school board, motivated by racial animus, decided to remove all books authored by blacks or advocating racial equality and integration. Our Constitution does not permit the official suppression of ideas. Thus whether [the school officials’] removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners’ actions. If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in [the school district’s] decision, then [school officials] have exercised their discretion in violation of the Constitution. To permit such intentions to control official actions would be to encourage the precise sort of officially prescribed orthodoxy unequivocally condemned in [previous cases]. On the other hand. . .an unconstitutional motivation would not be demonstrated if it were shown that petitioners had decided to remove the books at issue because those books were pervasively vulgar.</blockquote>
The Court went on to say that to demonstrate the true motivation for removing books from a school, schools needed “established, regular, and facially unbiased procedures for the review of controversial materials.” Id.</i> at 874.
Justice Blackmun wrote a separate opinion explaining that he did not believe “that the State has any affirmative obligation to provide students with information or ideas, something that may well be associated with a ‘right to receive,’” or “that the right at issue here is somehow associated with the peculiar nature of the school library.” Instead, he believed that “certain forms of state discrimination between ideas are improper. In particular. . .the State may not act to deny access to an idea simply because state officials disapprove of that idea for partisan or political reasons.” Id.</i> at 877. Blackmun admitted that the difference between his view and that of the plurality was not clear, but wrote that “while the plurality focuses on the failure to provide information, I find crucial the State’s decision to single out an idea for disapproval and then deny access to it.” Id.</i> at 879 n. 2.
What does Pico mean as far as battles over evolution curricula are concerned? First of all, there’s no majority opinion, which means it is not controlling law. But the plurality opinion means that schools may control the content of curricula within fairly lax limits, and may control the content of a library only where decisions as to content are based on some neutral, non-partisan criteria–that is, are not attempts to control the spread of ideas that the school board disfavors. For a school to remove books about evolution from the library because school officials decide that such books are contrary to community morals would probably violate this right. What about removing books advocating creationism? I think such a decision would satisfy the First Amendment if based on neutral, scientific criteria–which of course, is likely to be the case, since creationism is quackery. Creationists often claim that for schools to teach evolution and not teach creationism is an attempt to suppress the spread of ideas, or to censor. But Pico does not say that anything goes in a school library. It simply says that schools may not remove books in an attempt to control opinion. (And it places no limit on schools adding books to the library.) Schools may remove books to ensure that students are exposed to excellent literature, or are protected from pornography, or are exposed only to solid science, or other neutral reasons, but they may not remove books solely to shape morals, or control the ideological growth of students. The lines are not very clear, but Brennan seemed more intent on addressing the extremes, and he did so in Pico.