“Fine Tuning” Episode 10 (Now with Practice Pointers!)

By John M. Sedor, Sedor, Wendlandt, Evans & Filippi, LLC

We have reached the end of the 2022-23 school year … which means the end of our series titled “Fine-Tuning … Now with Practice Pointers!” We hope you have enjoyed it! 

But before we close this year out, imagine for a moment, that a parent comes up to you tomorrow and gives you a piece of paper and says, “[Insert your name here], this list of books is inappropriate for our students and all of these books are in our library. What are you going to do about it?” 

What can you do? What should you do?  

This issue – the removal of books from the school library – is in the process of being fine-tuned not only in Alaska but across the country. It is a perplexing and difficult legal issue. There is no simple legal answer. 

The proverbial “Exhibit A” in support of the claim that it is a difficult issue in the process of being “fine-tuned” is this: the Supreme Court of the United States has only had one case involving removal of books from a school library. The decision barely constituted a “decision.”

First the facts. Board of Education, Island Trees School District v. Pico (1982) began in a school district on Long Island, New York. The year was 1975 (almost 45 years ago!). A list of inappropriate books was brought to the Board with a request for removal. The Board directed that the books be removed from the library and placed in a location where board members could review them to determine what to do. A press release characterized the books as “anti-American, anti-Semitic, and just plain filthy.”

Thereafter, the Board created a “Book Review Committee” to review the books and make a recommendation to the Board. The Committee recommended that several books be returned to the library, that a couple of the books be removed, and that one book be available only with parental consent. The Board, without explanation, rejected the recommendations of the Committee and returned only one book to the library.

Pico – a student in 1975 – filed a lawsuit against the District challenging the removal of the books. Prior to the trial, the United States District Court ruled in favor of the school board on summary judgement. The Court held that while “removal of such books from a school library may, indeed in this court’s view does, reflect a misguided educational philosophy, it does not constitute a sharp and direct infringement of any first amendment right.” Pico appealed the case to the federal court of appeals which reversed the lower court. Before the case was returned for trial, the District appealed to the Supreme Court.

What was the Supreme Court decision? “Decision” is in quotes because there actually was no majority opinion. Instead, the 9 justices filed 7 opinions. When the dust settled, we were left with a plurality decision. This (a plurality decision) means that there was no agreement on the rationale for the majority decision. But 5 of the 9 justices agreed that … facts matter … and sent the back to the district court for a trial. So, while the Pico case provides insight into how to consider book removal cases, it is difficult at best to find a substantive precedent. 

Here is a summary of some of the justices’ considerations:

  • 4 Justices (Burger, Powell, Rehnquist, O’Connor) would have ruled for the school board. Justice O’Connor reasoned: “If the school board can set the curriculum, select teachers, and determine initially what books to purchase for the school library, it surely can decide which books to discontinue or remove from the school library so long as it does not also interfere with the right of students to read the material and to discuss it.” This group concluded that not ruling in favor of the Board would make the courts a “super censor” of library decisions and would result in local schools being administered by “federal judges and teenage pupils” instead of elected school boards. 
  • 4 Justices (Brennan, Marshall, Stevens, and Blackmun) noted that students do not shed their constitutional rights at the schoolhouse gates and that the motivation of the Board of Education would be critical in determining if a book could be removed from a school library. “Why” the book was being removed was more important than what book was being removed. “If [the school board] intended by their removal decision to deny respondents access to ideas with which [the board] disagreed, … [their decision] was in violation of the Constitution.” But, if the removal decision was because the books were “pervasively vulgar” or determined to be educationally unsuitable, then the removal decision would be “perfectly permissible.” These justices could not apply this Constitutional framework because the case lacked specific findings of fact regarding the motivation of the school board. So, these 4 Justices wanted to send the case back for a trial that would apply the Constitutional framework they created to the facts of the case. 
  • 1 Justice (White) stood alone. He agreed that there were unresolved issues of fact – and therefore could not agree with the group who wanted to rule in favor of the Board. But just when you might have thought that he would side with the other group, he didn’t. He concluded that creating a Constitutional framework in the absence of critical facts was inappropriate – one should not put the cart in front of the horse. He found no need to “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.” Justice White’s narrow conclusion, therefore, was the only point upon which 5 justices agreed. So that – sending the case back for trial – is what happened. 

After the Supreme Court’s 1982 plurality decision, over 1,200 Island Trees School District parents submitted a petition seeking to return the removed books to the library. In early 1983 – over 8 years after the dispute began – the books were returned to the library. 

Practice Pointers

In Pico, the Court members raised many issues and ideas to consider, but the case provides no precedential guidance. But, as the fine-tuning of book removals continues, the Pico case provides a number of practice pointers. Here are a few:

  • Facts Matter. The facts that had been established prior to trial left too many questions for a majority of judges to make a substantive decision. If litigation becomes a possibility related to removing a book from the library (or any other matter), be mindful of the record that your district is creating. It will impact the result of the case. “They” say, “Good facts make good law.”
  • There was no indication in Pico that there were any controls or process on how books came into the library. Consider the process (or lack thereof) your district has for bringing books into the library. 
  • The Board in Pico had no process for removing books. In fact, the Board removed the books and then set up a committee to review the books. This lack of process and “making decisions on the fly” did not help the Board’s case. 
  • The Board rejected the recommendations of its own committee and did so without explanation. The Board is not a “rubber stamp;” so rejecting a recommendation of a Board created committee can, occasionally, happen. But to do so on a controversial issue without thorough discussion and explanation as to why the recommendation is being rejected, invites protest, litigation, and continued conflict. 

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