Board of Education v. Pico/Dissent Burger
|Board of Education v. Pico by
CHIEF JUSTICE BURGER, with whom JUSTICE POWELL, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join, dissenting.
The First Amendment, as with other parts of the Constitution, must deal with new problems in a changing world. In an attempt to deal with a problem in an area traditionally left to the states, a plurality of the Court, in a lavish expansion going beyond any prior holding under the First Amendment, expresses its view that a school board's decision concerning what books are to be in the school library is subject to federal court review.  Were this to become the law, this Court would come perilously close to becoming a "super censor" of school board library decisions. Stripped to its essentials, the issue comes down to two important propositions: first, whether local schools are to be administered by elected school boards or by federal judges and teenage pupils, and second, whether the values of morality, good taste, and relevance to education are valid reasons for school board decisions concerning the contents of a school library. In an attempt to place this case within the protection of the First Amendment, the plurality suggests a new "right" that, when shorn of the plurality's rhetoric, allows this Court to impose [p886] its own views about what books must be made available to students. 
I agree with the fundamental proposition that "students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.'" Ante at 457 U.S. 865"]865. For example, the Court has held that a school board cannot compel a student to participate in a flag salute ceremony, West Virginia Bd. of Education v. Barnette, 319 U.S. 624 (1943), or prohibit a student from expressing certain views, so long as that expression does not disrupt the educational process. 865. For example, the Court has held that a school board cannot compel a student to participate in a flag salute ceremony, West Virginia Bd. of Education v. Barnette, 319 U.S. 624 (1943), or prohibit a student from expressing certain views, so long as that expression does not disrupt the educational process. Tinker v. Des Moines School Dist., 393 U.S. 503 (1969). Here, however, no restraints of any kind are placed on the students. They are free to read the books in question, which are available at public libraries and bookstores; they are free to discuss them in the classroom or elsewhere. Despite this absence of any direct external control on the students' ability to express themselves, the plurality suggests that there is a new First Amendment "entitlement" to have access to particular books in a school library.
The plurality cites Meyer v. Nebraska, 262 U.S. 390"]262 U.S. 390 (1923), which struck down a state law that restricted the [p887] teaching of modern foreign languages in public and private schools, and 262 U.S. 390 (1923), and Epperson v. Arkansas, 393 U.S. 97 (1968), which declared unconstitutional under the Establishment Clause a law banning the teaching of Darwinian evolution, to establish the validity of federal court interference with the functioning of schools. The plurality finds it unnecessary "to reenter this difficult terrain," ante at 861, yet in the next breath relies on these very cases and others to establish the previously unheard of "right" of access to particular books in the public school library.  The apparent underlying basis of the plurality's view seems to be that students have an enforceable "right" to receive the information and ideas that are contained in junior and senior high school library books. Ante at 866. This "right" purportedly follows "ineluctably" from the sender's First Amendment right to freedom of speech, and as a "necessary predicate" to the recipient's meaningful exercise of his own rights of speech, press, and political freedom. Ante at 866-867. No such right, however, has previously been recognized.
It is true that, where there is a willing distributor of materials, the government may not impose unreasonable obstacles to dissemination by the third party. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). And where the speaker desires to express certain ideas, the government may not impose unreasonable restraints. Tinker v. Des Moines School Dist., supra. It does not follow, however, that a school board must affirmatively aid the speaker in his communication with the recipient. In short, the plurality suggests today that, if a writer has something to say, the government, through its schools, must be the courier. None of the cases cited by the plurality establish this broad-based proposition.
First, the plurality argues that the right to receive ideas is derived in part from the sender's First Amendment rights to [p888] send them. Yet we have previously held that a sender's rights are not absolute. Rowan v. Post Office Dept., 397 U.S. 728 (1970).  Never before today has the Court indicated that the government has an obligation to aid a speaker or author in reaching an audience.
Second, the plurality concludes that
- 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.
Ante at 867 (emphasis in original). However, the "right to receive information and ideas," Stanley v. Georgia, 394 U.S. 557, 564 (1969), cited ante at 867, does not carry with it the concomitant right to have those ideas affirmatively provided at a particular place by the government. The plurality cites James Madison to emphasize the importance of having an informed citizenry. Ibid. We all agree with Madison, of course, that knowledge is necessary for effective government. Madison's view, however, does not establish a right to have particular books retained on the school library shelves if the school board decides that they are inappropriate or irrelevant to the school's mission. Indeed, if the need to have an informed citizenry creates a "right," why is the government not also required to provide ready access to a variety of information? This same need would support a constitutional "right" of the people to have public libraries as part of a new constitutional "right" to continuing adult education.
The plurality also cites Tinker, supra, to establish that the recipient's right to free speech encompasses a right to have particular books retained on the school library shelf. Ante at 457 U.S. 868"]868. But the cited passage of Tinker notes only that school officials may not prohibit a student from expressing his or her view on a subject unless that expression interferes with [p889] the legitimate operations of the school. The government does not "contract the spectrum of available knowledge." 868. But the cited passage of Tinker notes only that school officials may not prohibit a student from expressing his or her view on a subject unless that expression interferes with [p889] the legitimate operations of the school. The government does not "contract the spectrum of available knowledge." Griswold v. Connecticut, 381 U.S. 479, 482 (1965), cited ante at 866, by choosing not to retain certain books on the school library shelf; it simply chooses not to be the conduit for that particular information. In short, even assuming the desirability of the policy expressed by the plurality, there is not a hint in the First Amendment, or in any holding of this Court, of a "right" to have the government provide continuing access to certain books.
Whatever role the government might play as a conduit of information, schools in particular ought not be made a slavish courier of the material of third parties. The plurality pays homage to the ancient verity that, in the administration of the public schools "‘there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political.'" Ante at 457 U.S. 864"]864. If, as we have held, schools may legitimately be used as vehicles for "inculcating fundamental values necessary to the maintenance of a democratic political system," 864. If, as we have held, schools may legitimately be used as vehicles for "inculcating fundamental values necessary to the maintenance of a democratic political system," Ambach v. Norwick, 441 U.S. 68, 77 (1979), school authorities must have broad discretion to fulfill that obligation. 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. [p890]
The plurality concludes that, under the Constitution, school boards cannot choose to retain or dispense with books if their discretion is exercised in a "narrowly partisan or political manner." Ante at 870. The plurality concedes that permissible factors are whether the books are "pervasively vulgar," ante at 871, or educationally unsuitable. Ibid. "Educational suitability," however, is a standardless phrase. This conclusion will undoubtedly be drawn in many — if not most — instances because of the decisionmaker's content-based judgment that the ideas contained in the book or the idea expressed from the author's method of communication are inappropriate for teenage pupils.
The plurality also tells us that a book may be removed from a school library if it is "pervasively vulgar." But why must the vulgarity be "pervasive" to be offensive? Vulgarity might be concentrated in a single poem or a single chapter or a single page, yet still be inappropriate. Or a school board might reasonably conclude that even "random" vulgarity is inappropriate for teenage school students. A school board might also reasonably conclude that the school board's retention of such books gives those volumes an implicit endorsement. Cf. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
Further, there is no guidance whatsoever as to what constitutes "political" factors. This Court has previously recognized that public education involves an area of broad public policy, and "‘go[es] to the heart of representative government.'" Ambach v. Norwick, supra, at 74. As such, virtually all educational decisions necessarily involve "political" determinations.
What the plurality views as valid reasons for removing a book at their core involve partisan judgments. Ultimately, the federal courts will be the judge of whether the motivation for book removal was "valid" or "reasonable." Undoubtedly the validity of many book removals will ultimately turn on a judge's evaluation of the books. Discretion must be used, [p891] and the appropriate body to exercise that discretion is the local elected school board, not judges. 
We can all agree that, as a matter of educational policy, students should have wide access to information and ideas. But the people elect school boards, who in turn select administrators, who select the teachers, and these are the individuals best able to determine the substance of that policy. The plurality fails to recognize the fact that local control of education involves democracy in a microcosm. In most public schools in the United States, the parents have a large voice in running the school.  Through participation in the election of school board members, the parents influence, if not control, the direction of their children's education. A school board is not a giant bureaucracy far removed from accountability for its actions; it is truly "of the people and by the people." A school board reflects its constituency in a very real sense, and thus could not long exercise unchecked discretion in its choice to acquire or remove books. If the parents disagree with the educational decisions of the school board, they can take steps to remove the board members from office. Finally, even if [p892] parents and students cannot convince the school board that book removal is inappropriate, they have alternative sources to the same end. Books may be acquired from bookstores, public libraries, or other alternative sources unconnected with the unique environment of the local public schools. 
No amount of "limiting" language could rein in the sweeping "right" the plurality would create. The plurality distinguishes library books from textbooks because library books, "by their nature, are optional, rather than required, reading." Ante at 862. It is not clear, however, why this distinction requires greater scrutiny before "optional" reading materials may be removed. It would appear that required reading and textbooks have a greater likelihood of imposing a "‘pall of orthodoxy'" over the educational process than do optional reading. Ante at 870. In essence, the plurality's view transforms the availability of this "optional" reading into a "right" to have this "optional" reading maintained at the demand of teenagers.
The plurality also limits the new right by finding it applicable only to the removal of books once acquired. Yet if the First Amendment commands that certain books cannot be removed, does it not equally require that the same books be acquired? Why does the coincidence of timing become the basis of a constitutional holding? According to the plurality, the evil to be avoided is the "official suppression of ideas." Ante at 871. It 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.  Similarly, a decision to [p893] eliminate certain material from the curriculum, history for example, would carry an equal — probably greater — prospect of "official suppression." Would the decision be subject to our review?
Through use of bits and pieces of prior opinions unrelated to the issue of this case, the plurality demeans our function of constitutional adjudication. Today the plurality suggests that the Constitution distinguishes between school libraries and school classrooms, between removing unwanted books and acquiring books. Even more extreme, the plurality concludes that the Constitution requires school boards to justify to its teenage pupils the decision to remove a particular book from a school library. 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.
^ . At the outset, the plurality notes that certain school board members found the books in question "objectionable" and "improper" for junior and senior high school students. What the plurality apparently finds objectionable is that the inquiry as to the challenged books was initially stimulated by what is characterized as "a politically conservative organization of parents concerned about education," which had concluded that the books in question were "improper fare for school students." Ante at 856. As noted by the District Court, however, and in the plurality opinion, ante at 859, both parties substantially agreed about the motivation of the school board in removing the books:
- [T]he board acted not on religious principles, but on its conservative educational philosophy and on its belief that the nine books removed from the school library and curriculum were irrelevant, vulgar, immoral, and in bad taste, making them educationally unsuitable for the district's junior and senior high school students.
474 F.Supp. 387, 392 (1979).
^ . In oral argument, counsel advised the Court that, of the original plaintiffs, only "[o]ne of them is still in school . . . until this June, and will assumedly graduate in June. There is a potential question of mootness." Tr. of Oral Arg. 4-5 (emphasis added). The sole surviving plaintiff has therefore either recently been graduated from high school or is within days or even hours of graduation. Yet the plurality expresses views on a very important constitutional issue. Fortunately, there is no binding holding of the Court on the critical constitutional issue presented.
We do well to remember the admonition of Justice Frankfurter that "the most fundamental principle of constitutional adjudication is not to face constitutional questions but to avoid them, if at all possible." United States v. Lovett, 328 U.S. 303, 320 (1946) (concurring opinion). In the same vein, Justice Stone warned that "the only check upon our own exercise of power is our own sense of self-restraint." United States v. Butler, 297 U.S. 1, 79 (1936) (dissenting opinion).
^ . Of course, it is perfectly clear that, unwise as it would be, the board could wholly dispense with the school library, so far as the First Amendment is concerned.
^ . In Rowan, a unanimous Court upheld the right of a homeowner to direct the local post office to stop delivery of unwanted materials that the householder viewed as "erotically arousing or sexually provocative."
^ . Indeed, this case is illustrative of how essentially all decisions concerning the retention of school library books will become the responsibility of federal courts. As noted in n. 1, supra, the parties agreed that the school board in this case acted not on religious principles, but
- on its belief that the nine books removed from the school library and curriculum were irrelevant, vulgar, immoral, and in bad taste, making them educationally unsuitable for the district's junior and senior high school students.
Despite this agreement as to motivation, the case is to be remanded for a determination of whether removal was in violation of the standard adopted by the plurality. The school board's error appears to be that it made its own determination, rather than relying on experts. Ante at 874-875.
^ . Epperson v. Arkansas, 393 U.S. 97, 104 (1968). There are approximately 15,000 school districts in the country. U.S. Bureau of Census, Statistical Abstract of the United States 297 (102d ed.1981) (Table 495: Number of Local Governments, by Taxing Power and Type, and Public School Systems — States: 1972 and 1977). See also Diamond, The First Amendment and Public Schools: The Case Against Judicial Intervention, 59 Texas L.Rev. 477, 506-507, n. 130 (1981).
^ . Other provisions of the Constitution, such as the Establishment Clause, Epperson v. Arkansas, supra, and the Equal Protection Clause, also limit the discretion of the school board.
^ . The formless nature of the "right" found by the plurality in this case is exemplified by this purported distinction. Presumably a school board could, for any reason, choose not to purchase a book for its library. Once it purchases that book, however, it is "locked in" to retaining it on the school shelf until it can justify a reason for its removal. This anomalous result of "book tenure" was pointed out by the District Court in this case. 474 F.Supp. at 395-396. See also Presidents Council, District 25 v. Community School Board No. 25, 457 F.2d 289, 293 (CA2 1972). Under the plurality view, if a school board wants to be assured that it maintains control over the education of its students, every page of every book sought to be acquired must be read before a purchase decision is made.