Board of Education v. Pico/Dissent Powell

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JUSTICE POWELL, dissenting.

The plurality opinion today rejects a basic concept of public school education in our country: that the States and locally elected school boards should have the responsibility for determining the educational policy of the public schools. After today's decision, any junior high school student, by instituting a suit against a school board or teacher, may invite a judge to overrule an educational decision by the official body designated by the people to operate the schools. [p894]

I[edit]

School boards are uniquely local and democratic institutions. Unlike the governing bodies of cities and counties, school boards have only one responsibility: the education of the youth of our country during their most formative and impressionable years. Apart from health, no subject is closer to the hearts of parents than their children's education during those years. For these reasons, the governance of elementary and secondary education traditionally has been placed in the hands of a local board, responsible locally to the parents and citizens of school districts. Through parent-teacher associations (PTA's), and even less formal arrangements that vary with schools, parents are informed and often may influence decisions of the board. Frequently, parents know the teachers and visit classes. It is fair to say that no single agency of government at any level is closer to the people whom it serves than the typical school board.

I therefore view today's decision with genuine dismay. Whatever the final outcome of this suit and suits like it, the resolution of educational policy decisions through litigation, and the exposure of school board members to liability for such decisions, can be expected to corrode the school board's authority and effectiveness. As is evident from the generality of the plurality's "standard" for judicial review, the decision as to the educational worth of a book is a highly subjective one. Judges rarely are as competent as school authorities to make this decision; nor are judges responsive to the parents and people of the school district. [1] [p895]

The new constitutional right, announced by the plurality, is described as a "right to receive ideas" in a school. Ante at 867. As the dissenting opinions of THE CHIEF JUSTICE and JUSTICE REHNQUIST so powerfully demonstrate, however, this newfound right finds no support in the First Amendment precedents of this Court. And even apart from the inappropriateness of judicial oversight of educational policy, the new constitutional right is framed in terms that approach a meaningless generalization. It affords little guidance to courts, if they — as the plurality now authorizes them — are to oversee the inculcation of ideas. The plurality does announce the following standard: a school board's "discretion may not be exercised in a narrowly partisan or political manner." Ante at 870. But this is a standardless standard that affords no more than subjective guidance to school boards, their counsel, and to courts that now will be required to decide whether a particular decision was made in a "narrowly partisan or political manner." Even the "chancellor's foot" standard in ancient equity jurisdiction was never this fuzzy.

As JUSTICE REHNQUIST tellingly observes, how does one limit — on a principled basis — today's new constitutional right? If a 14-year-old child may challenge a school board's decision to remove a book from the library, upon what theory is a court to prevent a like challenge to a school board's decision not to purchase that identical book? And at the even more "sensitive" level of "receiving ideas," does today's decision entitle student oversight of which courses may be added or removed from the curriculum, or even of what a particular teacher elects to teach or not teach in the classroom? Is not the "right to receive ideas" as much — or indeed even more — implicated in these educational questions? [2] [p896]

II[edit]

The plurality's reasoning is marked by contradiction. It purports to acknowledge the traditional role of school boards and parents in deciding what should be taught in the schools. It states the truism that the schools are

vitally important "in the preparation of individuals for participation as citizens," and as vehicles for "inculcating fundamental values necessary to the maintenance of a democratic political system."

Ante at 864. Yet when a school board, as in this case, takes its responsibilities seriously and seeks to decide what the fundamental values are that should be imparted, the plurality finds a constitutional violation.

Just this Term, the Court held, in an opinion I joined, that the children of illegal aliens must be permitted to attend the public schools. See Plyler v. Doe, ante p. 202. Quoting from earlier opinions, the Court noted that the "‘public schoo[l is] a most vital civic institution for the preservation of democratic system of government,'" and that the public schools are "the primary vehicle for transmitting ‘the values on which our society rests.'" Ante at 221. By denying to illegal aliens the opportunity "to absorb the values and skills upon which our social order rests," the law under review placed a lifelong disability upon these illegal alien children. Ibid. .

Today the plurality drains much of the content from these apt phrases. A school board's attempt to instill in its students the ideas and values on which a democratic system depends is viewed as an impermissible suppression of other ideas and values on which other systems of government and other societies thrive. Books may not be removed because [p897] they are indecent; extol violence, intolerance, and racism; or degrade the dignity of the individual. Human history, not the least that of the 20th century, records the power and political life of these very ideas. But they are not our ideas or values. Although I would leave this educational decision to the duly constituted board, I certainly would not require a school board to promote ideas and values repugnant to a democratic society or to teach such values to children.

In different contexts and in different times, the destruction of written materials has been the symbol of despotism and intolerance. But the removal of nine vulgar or racist books from a high school library by a concerned local school board does not raise this specter. For me, today's decision symbolizes a debilitating encroachment upon the institutions of a free people.

Attached as an Appendix hereto is Judge Mansfield's summary of excerpts from the books at issue in this case.

APPENDIX TO OPINION OF POWELL, J., DISSENTING[edit]

The excerpts which led the Board to look into the educational suitability of the books in question are set out (with minor corrections after comparison with the text of the books themselves) below. The pagination and the underlinings are retained from the original report used by the board. In newer editions of some of the books, the quotes appear at different pages.

1) SOUL ON ICE by Eldridge Cleaver

PAGE QUOTE

157-158 ". . . There are white men who will pay you to fuck their wives. They approach you and say, "How would you like to fuck a white woman?" "What is this?" you ask. "On the up-and-up," he assures you. "It's all right. She's my wife. She needs black rod, is all. She has to have it. It's like a medicine or drug to her. She has to have it. I'll pay you. It's all on the level, no trick involved. Interested?" [p898] You go with him and he drives you to their home. The three of you go into the bedroom. There is a certain type who will leave you and his wife alone and tell you to pile her real good. After it is all over, he will pay you ad drive you to wherever you want to go. Then there are some who like to peep at you through a keyhole and watch you have his woman, or peep at you through a window, or lie under the bed and listen to the creaking of the bed as you work out. There is another type who likes to masturbate while he stands beside the bed and watches you pile her. There is the type who likes to eat his woman up after you get through piling her. And there is the type who only wants you to pile her for a little while, just long enough to thaw her out and kick her motor over and arouse her to heat, then he wants you to jump off real quick and he will jump onto her and together they can make it from there by themselves."

2) A HERO AIN'T NOTHING BUT A SANDWICH by Alice Childress

PAGE QUOTE

10 "Hell, no! Fuck the society."

64-65 "The hell with the junkie, the wino, the capitalist, the welfare checks, the world . . . yeah, and fuck you too!"

75-76 "They can have back the spread and curtains, I'm too old for them fuckin bunnies anyway."

3) THE FIXER by Bernard Malamud

PAGE QUOTE

52 "What do you think goes on in the wagon at night: Are the drivers on their knees fucking their mothers?"

90 "Fuck yourself, said the blinker, etc."

92 "Who else would do anything like that but a motherfucking Zhid?"

146 "No more noise out of you or I'll shoot your Jew cock off."

189 "Also there's a lot of fucking in the Old Testament, so how is that religious?"

192 "You better go fuck yourself, Bok, said Kogin, I'm onto your Jew tricks." [p899]

215 "Ding-dong giddyap. A Jew's cock's in the devil's hock."

216 "You cocksucker Zhid, I ought make you lick it up off the floor."

4) GO ASK ALICE by Anonymous

PAGE QUOTE

31 "I wonder if sex without acid could be so exciting, so wonderful, so indescribable. I always thought it just took a minute, or that it would be like dogs mating."

47 "Chris and I walked into Richie and Ted's apartment to find the bastards stoned and making love to each other . . . low class queer."

81 "shitty, goddamned, pissing, ass, goddamned beJesus, screwing life's, ass, shit. Doris was ten and had humped with who knows how many men in between . . . her current stepfather started having sex with her but good . . . sonofabitch balling her"

83 "but now when I face a girl its like facing a boy. I get all excited and turned on. I want to screw with the girl. . . ."

84 "I'd rather screw with a guy . . . sometimes I want one of the girls to kiss me. I want her to touch me, to have her sleep under me."

84 "Another day, another blow job . . . If I don't give Big Ass a blow he'll cut off my supply . . . and LittleJacon is yelling, ‘Mama, Daddy can't come now. He's humping Carla.'"

85 "Shit, goddamn, goddamn prick, son-of-a-bitch, ass, pissed, bastard, goddamn, bullshit"

94 "I hope you have a nice orgasm with your dog tonight."

110 "You fucking Miss Polly pure"

117 "Then he said that all I needed was a good fuck."

146 "It might be great because I'm practically a virgin in the sense that I've never had sex except when I've been stoned. . . ."

5) SLAUGHTERHOUSE FIVE by Kurt Vonnegut, Jr.

PAGE QUOTE

29 "Get out of the road, you dumb motherfucker." The last word was still a novelty in the speech of white people in 1944. [p900] It was fresh and astonishing to Billy, who had never fucked anybody . . .

32 "You stake a guy out on an anthill in the desert, see? He's facing upward, and you put honey all over his balls and pecker, and you cut off his eyelids so he has to stare at the sun till he dies."

34 "He had a prophylactic kit containing two tough condoms ‘For the prevention of disease only!' . . . He had a dirty picture of a woman attempting sexual intercourse with a shetland pony."

94 & 95 "But the Gospels actually taught this: before you kill somebody, make absolutely sure he isn't well connected. . . . The flaw in the Christ stories, said the visitor from outer space, was that Christ who didn't look like much, was actually the son of the Most Powerful Being in the Universe. Readers understood that, so, when they came to the crucifixion, they naturally thought . . . Oh boy — they sure picked the wrong guy to lynch this time! And that thought had a brother: there are right people to lynch. People not well connected. . . . The visitor from outer space made a gift to Earth of a new Gospel. In it, Jesus really WAS a nobody, and a pain in the neck to a lot of people with better connections than he had. . . . So the people amused themselves one day by nailing him to a cross and planting the cross in the ground. There couldn't possibly be any repercussions, the lynchers thought . . . since the new Gospel hammered home again and again what a nobody Jesus was. And then, just before the nobody died. . . . The voice of God came crashing down. He told the people that he was adopting the bum as his son. . . . God said this: From this moment on, He will punish horribly anybody who torments a bum who has no connections."

99 "They told him that there could be no Earthling babies without male homosexuals. There could be babies without female homosexuals."

120 "Why don't you go fuck yourself? Don't think I haven't [p901] tried . . . he was going to have revenge, and that revenge was sweet. . . . It's the sweetest thing there is, said Lazzaro. People fuck with me, he said, and Jesus Christ, are they ever fucking sorry."

122 "And he'll pull out a gun and shoot his pecker off. The stranger'll let him think a couple of seconds about who Paul Lazzaro is and what life's gonna be like without a pecker. Then he'll shoot him once in the guts and walk away. . . . He died on account of this silly cocksucker here. So I promised him I'd have this silly cocksucker shot after the war."

134 "In my prison cell I sit . . . With my britches full of shit, And my balls are bouncin gently on the floor. And I see the bloody snag when she bit me in the bag. . . . Oh, I'll never fuck a Polack any more."

173 "And the peckers of the young men would still be semi-erect, and their muscles would be bulging like cannonballs."

175 "They didn't have hard-ons. . . . Everybody else did."

177 "The magazine, which was published for lonesome men to jerk off to."

178 "and one critic said. . . . ‘To describe blow-jobs artistically."

6) THE BEST SHORT STORIES BY NEGRO WRITERS Ed. by Langston Hughes

PAGE QUOTE

176 "like bat's shit and camel piss,"

228 "that no-count bitch of a daughter of yours is up there up North making a whore of herself."

237 "they made her get out and stand in front of the headlights of the car and pull down her pants and raise her dress — they said that was the only way they could be sure. And you can imagine what they said and what they did. . . ."

303 "You need some pussy. Come on, let's go up to the whore house on the hill."

"Oh, these bastards, these bastards, this God damned Army and the bastards in it. The sons of bitches!"

436 "he produced a brown rag doll, looked at her again, then [p902] grabbed the doll by its legs and tore it part way up the middle. Then he jammed his finger into the rip between the doll's legs. The other men laughed. . . ."

444 "The pimps, hustlers, lesbians, and others trying to misuse me."

462 "But she had straight firm legs and her breasts were small and upright. No doubt if she'd had children her breasts would be hanging like little empty purses."

464 "She first became aware of the warm tense nipples on her breasts. Her hands went up gently to clam them." "In profile, his penis hung like a stout tassle. She could even tell that he was circumcised."

406 "Cadillac Bill was busy following Luheaster around, rubbing her stomach and saying, ‘Magic Stomach, Magic Stomach, bring me a little baby cadillac.'" "One of the girls went upstairs with Red Top and stayed for about forty-five minutes."

7) BLACK BOY by Richard Wright

PAGE QUOTE

70-71 "We black children — seven or eight or nine years of age — ~used to run to the Jew's store and shout:

. . . Bloody Christ Killers

Never trust a Jew

Bloody Christ Killers

What won't a Jew do . . .

Red, white and blue

Your pa was a Jew

Your ma a dirty dago

What the hell is you?"

265 "Crush that nigger's nuts, nigger!" "Hit that nigger!" "Aw, fight, you goddam niggers!" "Sock 'im, in his f-k-g piece!" "Make 'im bleed!"

8) LAUGHING BOY by Oliver LaFarge

PAGE QUOTE

38 "I'll tell you, she is all bad; for two bits she will do the worst thing." [p903]

258-9 "I was frightened when he wanted me to lie with him, but he made me feel all right. He knew all about how to make women forget themselves, that man."

9) THE NAKED APE by Desmond Morris

73-74 "Also, the frontal approach provides the maximum possibility for stimulation of the female's clitoris during the pelvic thrusting of the male. It is true that it will be passively, stimulated by the pulling effect of the male's thrusts, regardless of his body position in relation to the female, but in a face-to-face mating there will in addition be the direct rhythmic pressure of the male's pubic region on to the clitoral area, and this will considerably heighten the stimulation. . . ." "So it seems plausible to consider that face-to-face copulation is basic to our species. There are, of course, a number of variations that do not eliminate the frontal element: male above, female above, side by side, squatting, standing, and so on, but the most efficient and commonly used one is with both partners horizontal, the male above the female. . . ."

80 " . . . This broadening of the penis results in the female's external genitals being subjected to much more pulling and pushing during the performance of pelvic thrusts. With each inward thrust of the penis, the clitoral region is pulled downwards and then with each withdrawal, it moves up again. Add to this the rhythmic pressure being exerted on the clitoris region by the pubic region of the frontally copulating male, and you have a repeated massaging of the clitoris that — were she a male — would virtually be masturbatory."

94-99 " . . . If either males or females cannot for some reason obtain sexual access to their opposite numbers, they will find sexual outlets in other ways. They may use other members of their own sex, or they may even use members of other species, or they may masturbate. . . ."

10) READER FOR WRITERS . . .

638 F.2d 404, 419-422, n. 1 (CA2 1980) (Mansfield, J., dissenting). [p904]

Notes[edit]

^ . The plurality speaks of the need for "sensitive" decisionmaking, pursuant to "regular" procedures. See ante at 874, n. 26, and 875. One wonders what indeed does this mean. In this case, for example, the board did not act precipitously. It simply did not agree with the recommendations of a committee it had appointed. Would the plurality requires a constitutional matter — that the board delegate unreviewable authority to such a committee?

^ . The plurality suggests that the books in a school library derive special protection under the Constitution because the school library is a place in which students exercise unlimited choice. See ante at 868-869. This suggestion is without support in law or fact. It is contradicted by this very case. The school board in this case does not view the school library as a place in which students pick from an unlimited range of books — some of which may be inappropriate for young people. Rather, the school library is analogous to an assigned reading list within which students may exercise a degree of choice.