Misrepresentation of Supreme Court’s Ruling on School Library Book Removal in New Yorker Article

The Dec. 7 article asks, “How Would This Supreme Court Rule on Book Banning?,” and says this in paragraphs 4, 5, and 7 (out of 7) (emphasis added):

But I think this is mistaken, because there was no majority decision in Pico, no settled precedent on the subject, and no majority judgment that children have a right to receive information from a school library.

Rather, the Court split 4-1-4. Four Justices (led by Justice Brennan) took the view that “local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books.” Four other Justices (led by Chief Justice Burger) expressly rejected this view (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans). And the swing vote, Justice White, expressly refused to opine on this issue (emphasis added):

Justice White thus concurred with Justice Brennan’s opinion solely as to the propriety of remanding for a trial on whether the school board removed the books based on viewpoint or instead based on their being “in essence, vulgar” (which even the challengers “implicitly conceded” would be a permissible basis for removing the books, at least if they “were pervasively vulgar”). But he disagreed with Justice Brennan on the consequence of any such finding:

  • Justice Brennan’s view was that, if there was a finding that the removals were based on viewpoint, that would mean the removals violated the First Amendment.
  • Justice White’s view as that, if there was such a finding, “there will be time enough to address the First Amendment issues that may then be presented” (which echoes his conclusion that he saw “no necessity for” resolving those questions in his opinion).

What about lower courts? Two federal appellate courts have characterized the Brennan opinion as expressing the view of the Court, see Monteiro v. Tempe Union High School Dist. (9th Cir. 1998) and Turkish Coalition of Am., Inc. v. Bruininks (8th Cir. 2012).

But three other federal appellate courts have disagreed, and have recognized—I think correctly—that Pico didn’t resolve the issue; e.g., Griswold v. Driscoll (1st Cir. 2010):

Likewise with Muir v. Alabama Ed. Television Comm’n (5th Cir. 1982), which concluded that in Pico “the Supreme Court decided neither the extent nor, indeed, the existence [or nonexistence], of First Amendment implications in a school book removal case,” because “[t]he Fifth Member of the Court [Justice White] voting for the judgment expresses no opinion on the First Amendment issues.” And likewise with ACLU of Florida v. Miami-Dade County School Bd. (11th Cir. 2009), which noted that the view that  “school officials may not remove books from 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'” was “the standard that failed to attract a majority in the Pico case.”

The matter, then, is not clear. Lower courts may indeed themselves decide that viewpoint-based removals of books from school libraries violate the First Amendment, and they may find Justice Brennan’s opinion to be persuasive. And schools may reasonably worry that this might happen, and might conclude that it’s better to avoid that litigation. But courts and schools may instead conclude otherwise, and be more persuaded by Chief Justice Burger’s dissent.

My own view is more in line with the dissent: I think a public school is entitled to decide which viewpoints to promote through its own library; school authorities can decide that their library will be a place where they provide books they recommend as particularly interesting/useful/enlightening/etc. The process of selecting library books is part of the government’s own judgment about what views it wishes to promote; and the ability to reconsider selection decisions (including in response to pressure from the public, which is to say from the ultimate governors of the public schools) should go with the ability to make those decisions in the first place. To be sure, some such decisions may be foolish or narrow-minded, but they’re not unconstitutional.

[The analysis in this post is adapted from earlier ones.]