Inside the SCOTUS Case on School Library Censorship
(podcast, Brooke Gladstone, On the Media, NYC Studios, 2-4-22)
I apologize for going beyond 'fair use' in providing a digest of this program. It's the only Supreme Court decision about removing "banned books" from school libraries, and it is a good discussion of issues in the case. I strongly recommend listening to the recording.
This year marks the 40th anniversary of Island Trees School District vs Pico, the first and only time the Supreme Court considered the question of book removal in school libraries.
(For a MUCH longer account of that case: LII U.S. Supreme Court BOARD OF EDUCATION, ISLAND TREES UNION FREE SCHOOL DISTRICT NO. 26 et al., Petitioners, v. Steven A. PICO, by his next friend Frances Pico et al. (Legal Information Institute) Argued March 2, 1982. Decided June 25, 1982.)
In 1976, Steven Pico was a 17-year-old student at Island Trees High School in Long Island, New York. He discovered his life's calling the day he learned that a list of books had been removed from his school district's libraries and later became the plaintiff in a Supreme Court case on the matter. These were the books:
The Naked Ape by Desmond Morris
Down These Mean Streets by Piri Thomas
Soul on Ice by Eldridge Cleaver
Slaughterhouse-Five by Vonnegut
The Fixer by Bernard Malamud
Best Short Stories by Black Writers (ed. Langston Hughes)
Go Ask Alice (Anonymous )
Laughing Boy by Oliver La Farge
Black Boy by Richard Wright
A Hero Ain't Nothin' But a Sandwich by Alice Childress
The School Board sent out a press release saying that while at a conference they had learned of a list of books found in schools around the country that were offensive because they were anti-American, anti-Christian, antisemitic, anti-black, and just plain filthy. "To date what we have found is that the books do in fact contain material that is offensive to Christians, Jews, Blacks, and Americans in general. In addition, these books contain obscenities, blasphemies, brutality, and perversion beyond description."
"They were targeted because they were minority ideas in a majority community." Nobody in the community had objected to the books. Pico had read a number of the books, and was particularly touched by Go Ask Alice. Pico suspected the board was cherry-picking.
Arthur Eisenberg (at the NY Civil Liberties Union) recommended that Pico ask four other youths to join the suit, because he would age out before the decision came through and younger students might still be in school. The school board argued that they were the democratically elected body to make judgments about curriculum and the contents of the library. And that was accepted by the District Court.
On appeal, Eisenberg said that was wrong. "We argued that school officials and school boards have some discretion about the curriculum and what is taught in the schools but they cannot exercise that authority in a way to impose a narrow orthodoxy of views and values, and they cannot exercise that authority consistent with the First Amendment in an effort to suppress ideas that they don't like." The Second Court of Appeals bought that argument, so the books had to be returned to the school. Then the school board appealed to the U.S. Supreme Court. "What's at issue here is not the books. What's at issue here is local control."
Years later, when the Supreme Court decided to take the case, there was a chance the Court would make it constitutional. In 1982 Potter Stewart left the court and Sandra Day O'Connor came onto the court. March 2, 1982, the court heard oral arguments for both sides, and by this time the board had dropped the whole anti-American anti-religious argument, holding that the books had been removed because of their so-called vulgarity. There were no political judgments, said one side. Pico said he thought there were some clear political judgments.
In the Pico case, there were several different opinions, none of which won a majority of the Court. But two stand out: Justice Brennan essentially said "that school board members cannot exercise their authority to suppress ideas that they do not like. Students have a First Amendment right to receive information. This idea had never been applied to libraries.
Justice Rehnquist said "if school board members should not exercise their authority to suppress ideas they don't like, why is that principle applied only to the removal of books. Why wouldn't it apply to the purchase of books, to the maintenance of the collection?" But they made their decision based on the vulgarity of the books, and that's why Renquist was dissenting from Justice Brennan's opinion. And Brennan did not have a clear enough answer to that.
The vote was 4-4, Justice Bryon White couldn't make up his mind, and wanted the case sent to trial court for review. The school board did not want to go to trial and returned all the books to the shelves.
The Pico case was the only case in which the court considered the issue of book censorship in school libraries. Eisenberg thinks that if they had based their case an academic freedom theory or the democratic education theory they might have set a precedent that would stop the book removals we are seeing today.
One reason the case is not discussed more is that it didn't set a clear precedent and Pico turned down opportunities to write a book or participate in making a movie about it (not wanting to make money from an issue he felt strongly about).
"We didn't create the law we would have liked," said Eisenberg. Public education is not just about reading, writing and arithmetic. An element of a sound education involved being educated in democracy. Democracy rests on the power of reason in public discussion, and "the remedy for bad ideas is not coerced silence, is not censorship, but more speech to correct those errors."
The Supreme Court has invalidated education laws passed by state legislators, he said. In one case, Nebraska prohibited the teaching of foreign languages in schools, and in another case, in Arkansas, there was an effort by the legislature to prohibit teaching about Darwin in the schools. And the Supreme Court invalidated both of them.
Democracy rests on the ability for free discussion.
• Censorship vs. Freedom of Expression
• What you can do to fight book bans and challenges
• Banned Books & Challenged Books
• Lists of Banned & Challenged Books
• Censorship by the Numbers
• Timelines of censorship history
and very broadly: