What Pico means

In a post below, Ed Brayton mentioned the controversy in Gull Lake, Michigan. One item in the Thomas More Law Center's press release particularly caught my eye (and you know how painful that can be): TMLC repeatedly cites the 'confiscation of thirty copies of the book Of Pandas and People' by school authorities.

Now, Pandas And People is the standard collection of creationist claptrap which has been dealt with many times before. And the letter that TMLC sent to the school protesting this 'confiscation' is full of many misrepresentations and unsound scientific claims—for example, it refers to 'the standard Darwinian ‘random chance' explanations' of evolutionary change, when, of course, neither Darwin nor his successors have ever claimed that evolutionary change results from randomness. But set aside the questionable science for a moment. What about this book confiscation?

According to TMLC,

The school board had purchased thirty copies of that book with the knowledge they would be used in the seventh grade biology classroom. Those books now sit in a box in the principal's office with one placed in the library as a reference book, which cannot be checked out.

This, they claim, 'smacks of ‘book burning' and is clearly in violation of first amendment Free Speech rights of students to receive information as set forth in Board of Education, Island Trees Union Free School District No 26 et al v. Pico, 487 U. S. 853 (1982) [sic; it's 457 U.S. 853].'

Well, no, not exactly. First of all, no books were burned. No books were destroyed, or discarded, or even removed from the library. They were instead taken and placed in the principal's office. A pretty significant difference from book burning, by my reckoning.

Second, I'm a great admirer of Pico, but, as Inigo Montoya might say, I do not think it means what they think it means.

Most importantly, Pico was not a majority opinion, and is not, therefore, binding precedent. It was a plurality opinion, which means that it's highly persuasive, but not an authoritative statement on the First Amendment. To be a binding decision—that is, to be 'the opinion of the Court'—a case needs to receive the votes of five of the Justices. Pico produced a fractured opinion, with a plurality written by Justice Brennan, and supported by Justice Marshall, Stevens, and Blackmun (who did not join in one of the parts of the plurality opinion). Justice Blackmun wrote a separate opinion for himself, as did Justice White, who only agreed with the outcome of the case, but not in any of Justice Brennan's reasoning. Chief Justice Burger, Justice Powell, then-Justice Rehnquist, and Justice O'Connor issued a dissenting opinion together; Justice Powell then wrote another dissenting opinion which Justice O'Connor joined, and then Justice Rehnquist wrote his own dissenting opinion which Chief Justice Burger and Justice Powell joined. In other words, Pico has six opinions, and none of them are binding law. The plurality decision, of course, is the most persuasive one, but that's all it is.

That plurality decision held that the First Amendment protects a generalized right to receive information—but, to be accurate, it is not a 'Free Speech right[] of students,'—it 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.

Pico, </i>457 U.S. at 867. The very vagueness of this right and its origins upset several dissenters. See, e.g., id.</i> at 887-89 (Burger, C.J., Powell, O'Connor, Rehnquist, JJ., dissenting). So it's not as easy as this violating the free speech rights of students.</p>

But, most importantly, the plurality in Pico emphasized that its holding was limited solely to the question of removing books from the school library—and not to the question of removing books from a classroom curriculum: the library, the plurality said, 'is the principal locus' of the freedom of inquiry. Id. at 868. Unlike the classroom, wrote Justice Brennan,

use of the...school librar[y] is completely voluntary on the part of students. Their selection of books from these libraries is entirely a matter of free choice; the libraries afford them an opportunity at self-education and individual enrichment that is wholly optional. 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.

Id. at 869. Pico specifically says that libraries are different than classrooms, and as the TMLC acknowledges, students may still consult Pandas And People in the school library if they wish.

Indeed, Justice Brennan took pains to note that school officials 'rightly possess significant discretion to determine the content of their school libraries.' This discretion means that school officials may remove books even from school libraries—and certainly from classrooms—'if it were demonstrated that the removal decision was based solely upon the ‘educational suitability' of the books in question.' This is because removing books because they are pseudoscientific trash 'would not carry the danger of an official suppression of ideas, and thus would not violate...First Amendment rights.' Id.</i> at 870-71.</p>

TMLC's letter is simply an attempt to intimidate with legal flash-boom. It shouldn't work. A school is well within its legal rights to remove several hundred pages of fraud and quackery from the class and curriculum; indeed, it should be applauded when it does so.