Island Trees School District v. Pico
|Board of Education v. Pico|
|Argued March 2, 1982|
Decided June 25, 1982
|Full case name||Board of Education, Island Trees Union Free School District No. 26, et al. v. Pico, by his next friend Pico, et al.|
|Citations||457 U.S. 853 (more)|
|Prior history||Certiorari to the United States Court of Appeals for the Second Circuit|
|The 1st Amendment limits the power of local school boards to remove library books from junior high schools and high schools.|
|Plurality||Brennan, joined by Marshall, Stevens; Blackmun (all but parts II-A(1))|
|Concurrence||Blackmun (in part)|
|Concurrence||White (in judgment)|
|Dissent||Burger, joined by Powell, Rehnquist, O'Connor|
|Dissent||Rehnquist, joined by Burger, Powell|
|U.S. Const. amend. I|
Board of Education v. Pico, 457 U.S. 853 (1982), was a case in which the United States Supreme Court split on the First Amendment issue of a local school boards removing library books from junior high schools and high schools. Four ruled that it was unconstitutional, four Justices concluded the contrary (with perhaps a few minor exceptions), and one Justice concluded that the Court need not decide the question.
According to the syllabus of the case:
Petitioner Board of Education of the Island Trees Union Free School District, rejecting recommendations of a committee of parents and school staff that it had appointed, ordered that certain books, which the Board characterized as "anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy," be removed from high school and junior high school libraries. Respondent students then brought this action for declaratory and injunctive relief under 42 U.S.C. § 1983 against the Board and petitioner Board members, alleging that the Board's actions had denied respondents their rights under the First Amendment. The District Court granted summary judgment in petitioners' favor. The Court of Appeals reversed and remanded for a trial on the merits of respondents' allegations.
- Slaughterhouse-Five, by Kurt Vonnegut, Jr.
- The Naked Ape, by Desmond Morris
- Down These Mean Streets, by Piri Thomas
- Best Short Stories of Negro Writers, edited by Langston Hughes
- Go Ask Alice, of anonymous authorship
- Laughing Boy, by Oliver LaFarge
- Black Boy, by Richard Wright
- A Hero Ain't Nothin' but a Sandwich, by Alice Childress
- Soul On Ice, by Eldridge Cleaver
- A Reader for Writers, edited by Jerome Archer
- The Fixer, by Bernard Malamud
According to footnote 3 of the case, the first nine titles above were removed from shelves of the High School library; A Reader for Writers was removed from the Junior High School library; and The Fixer was removed from the curriculum of a 12th-grade literature course.
No single opinion commanded a majority of the Court, or announced any legal binding rule. Justice Brennan announced the judgment of the Court affirming the Court of Appeals, and controlled the outcome of the case and delivered an opinion joined by Justices Marshall and Stevens, and joined in all but Part II-A(1) by Justice Blackmun. Justice Blackmun filed an opinion concurring in part and concurring in the judgment.
Justice Brennan noted the Court had previously held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Tinker v. Des Moines School District. The First Amendment in this case included the right to read library books of the student's choosing.
Brennan concludes the plurality opinion with a discussion of the extent of the school board's authority to remove books from the school library:
As noted earlier, nothing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools. Because we are concerned in this case with the suppression of ideas, our holding [457 U.S. 853, 872] today affects only the discretion to remove books. In brief, we hold that 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." West Virginia Board of Education v. Barnette, 319 U.S., at 642. Such purposes stand inescapably condemned by our precedents.
Justice Blackmun's concurrence
Justice Blackmun, concurring, concluded that a proper balance between the limited constitutional restriction imposed on school officials by the First Amendment and the broad state authority to regulate education, would be struck by holding that school officials may not remove books from school libraries for the purpose of restricting access to the political perspectives or social ideas discussed in the books, when that action is motivated simply by the officials' disapproval of the ideas involved.
Justice White's concurrence
Justice White provided the necessary fifth vote for the bottom-line result, which was to allow the case to proceed in the lower court. But his reasoning was different from that of the plurality and of Justice Blackmun, and he expressly refused to opine on the First Amendment question.
Rather, he rejected the plurality's decision in order to speak about "the extent to which the First Amendment limits the discretion of the school board to remove books from the school library," and concluded that there was "no necessity for doing so at this point. When findings of fact and conclusions of law are made by the District Court, that may end the case. If, for example, the District Court concludes after a trial that the books were removed for their vulgarity, there may be no appeal. In any event, if there is an appeal, if there is dissatisfaction with the subsequent Court of Appeals' judgment, and if certiorari is sought and granted, there will be time enough to address the First Amendment issues that may then be presented."
As a consequence, the Justices split 4–4 on the First Amendment question, and thus set no precedent for future cases.
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Chief Justice Burger filed a dissenting opinion, in which Justices Powell, Rehnquist, and O'Connor joined. Justices Powell and O'Connor each filed an additional dissenting opinion. Justice Rehnquist filed a dissenting opinion, in which Chief Justice Burger and Justice Powell joined.
Chief Justice Burger's dissent
Writing about the plurality opinion, Burger states, "Were this to become the law, this Court would come perilously close to becoming a 'super censor" of school board library decisions."  Burger disagrees with the plurality's view that students have an enforceable right to receive information and ideas that are contained in junior and senior high school library books. Under his view, "[n]o such right ... has ever been recognized." Discussing the role and obligation of school boards he states:
Presumably all activity within a primary or secondary school involves the conveyance of information and at least an implied approval of the worth of that information. How are "fundamental values" to be inculcated except by having school boards make content-based decisions about the appropriateness of retaining materials in the school library and curriculum. In order to fulfill its function, an elected school board must express its views on the subjects which are taught to its students. In doing so those elected officials express the views of their community; they may err, of course, and the voters may remove them. It is a startling erosion of the very idea of democratic government to have this Court arrogate to itself the power the plurality asserts today.
Burger also disagrees with the plurality's distinction between acquisition decisions and removal decisions of the library. He states, [i]t does not follow that the decision to remove a book is less 'official suppression' than the decision not to acquire a book desired by someone." Burger ends with, "I categorically reject this notion that the Constitution dictates that judges, rather than parents, teachers, and local school boards, must determine how the standards of morality and vulgarity are to be treated in the classroom."
Justice Powell's dissent
Justice Powell's dissenting opinion reflects his belief that "the States and locally elected school boards should have the responsibility for determining the educational policy for the public schools." Powell believed that school boards were "uniquely local and democratic institutions" and that the school boards were in the best position to decide what educational policy decisions should be made in their school district. Powell closes his dissenting opinion by calling the plurality's decision "a debilitating encroachment upon the institutions of a free people." 
Justice Rehnquist's dissent
Justice Rehnquist's dissenting opinion first focuses on the procedural posture of the case, and disagrees with the approach the plurality opinion takes. He states, "I entirely disagree with Justice Brennan's treatment of the constitutional issue, I also disagree with his opinion for the entirely separate reason that it is not remotely tailored to the facts presented in this case." 
For Justice Rehnquist, there is a distinction between the actions of the government as educator and the actions of the government as sovereign:
With these differentiated roles of government in mind, it is helpful to assess the role of government as educator as compared with the role of government as sovereign. When it acts as an educator ... the government in engaged in inculcating social values and knowledge in relatively impressionable young people. Obviously, there are innumerable decisions to be made as to what courses should be taught, what books should be purchased, or what teachers should be employed. ... In the very course of administering the many-faceted operations of a school district, the mere decision to purchase some books will necessarily preclude the possibility of purchasing others. ... In each of these instances, however, the book or the exposure to the subject matter may be acquired elsewhere. The managers of the school district are not proscribing it as to the citizenry in general, but are simply determining that it will not be included in the curriculum or school library.
Justice Rehnquist also takes issue with the plurality's decision to find the "right to receive information" as an inherent corollary of the rights of free speech and press that are guaranteed by the First Amendment. "It is the very existence of a right to receive information, in the junior high school and high school setting, which I find wholly unsupported by our past decisions and inconsistent with the necessarily selective process of elementary and secondary education." For Rehnquist, education consists of selective presentation and explanation of ideas, and the right to receive information doctrine is improperly placed in elementary and secondary education.
Justice O'Connor's dissent
In a very short dissenting opinion, Justice O'Connor finds that the school board takes on a special role as educator. Educational decisions such as suitable material are properly relegated to the elected members of the school board. "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 discuss it."
- Island Trees School District v. Pico, 457 U.S. 853 (1982).
- "11 Banned Books in Island Trees v Pico (1982)". Read and Teach's Just Lists. 22 September 2008. Retrieved 30 September 2015.
- "The Musicals of Scott Miller". 2018-05-20. Retrieved 2018-05-20.
- "The Musicals of Scott Miller". 2018-05-20. Retrieved 2018-05-20.
- Tinker v. Des Moines School District, 393 U.S. 503, 506 (1969).
- Pico, 457 U.S. at 872-73.
- Pico, 457 U.S. at 885 (Burger, C.J., dissenting).
- Pico, 457 U.S. at 887.
- Pico, 457 U.S. at 889.
- Pico, 457 U.S. at 890.
- Pico, 457 U.S. at 893 (Powell, J., dissenting).
- Pico, 457 U.S. at 894.
- Pico, 457 U.S. at 897.
- Pico, 457 U.S. at 907 (Rehnquist, J., dissenting).
- Pico, 457 U.S. at 910.
- Pico, 457 U.S. at 921.
- Works related to Board of Education v. Pico at Wikisource
- Text of Island Trees School District v. Pico, 457 U.S. 853 (1982) is available from: Cornell CourtListener Findlaw Google Scholar Justia Library of Congress Oyez (oral argument audio)
- Island Trees School District
- Five Teens Win the Right to Read by Chris Crutcher
- Interview with Barbara Bernstein on the Pico Case - Supreme Court and School Library Censorship, by Mary Minow, LibraryLaw Blog, 10 August 2009.