Board of Education v. Pico

One recent addition to the Library Law Blog is a fascinating audio interview about the Supreme Court decision known as Board of Education v. Pico. It's twenty minutes long, in plain English, and highly informative. Click here for the audio file (mp3).

I've seen the Board v. Pico decision bandied about in the library censorship debate, and felt it needed a closer look. The Safelibraries blog, for example, lists this case as a "Must Read," and gives it the caption, "pervasively vulgar books can be excluded from public schools." This is probably a true statement as far as it goes. It is, however, incomplete.

What was it about? The school board in Island Trees, New York, decided to remove nine books from the school library. To support their action, they asserted that the nine books were "anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy." Some students and their parents sued, claiming the school board infringed on the Free Speech rights of the students.

How did it turn out? Given the way this case is cited by would-be censors, it may surprise the reader to learn that the school board lost this case, and lost badly. The Supreme Court decided:

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.'

What the school board had wanted was a judgment saying that there was no case, that the board had the authority to remove library books as they saw fit. Instead, the court said the board could not remove books merely to suit their political opinions, and that the motivations for the removal were relevant to the question of the constitutionality of that action.

What happened next was quite interesting. The Supreme Court decision allowed the case to go back to lower courts for determination of the facts about the motivations for the removal. And there the matter ended. Realizing that they would have to clearly state the criteria they were using to decide which books to remove, the board let the case drop.

Lessons learned? While Board v. Pico was about school libraries rather than public libraries, the WBC4SL would be wise to learn from the way the school board overplayed their hand and ultimately damaged their own position. One lesson is that underlying motivations matter and are subject to scrutiny. While the WBC4SL is now crying "obscenity," the obvious homophobia of their original position(s) is a matter of public record, badly undermining their claim. The second lesson is that selection criteria matter. The WBC4SL's refusal to get specific about which books to re-shelve and/or label puts them in a position similar to that of the Island Trees school board: neither are really in a position state an honest set of criteria that are anything other than arbitrary.

Which books? A footnote in the Supreme Court's decision lists the books that the school board removed:

1. Slaughter House Five, by Kurt Vonnegut, Jr.
2. The Naked Ape, by Desmond Morris
3. Down These Mean Streets, by Piri Thomas
4. Best Short Stories of Negro Writers, edited by Langston Hughes
5. Go Ask Alice, of anonymous authorship
6. Laughing Boy, by Oliver LaFarge
7. Black Boy, by Richard Wright
8. A Hero Ain't Nothin' But A Sandwich, by Alice Childress
9. Soul On Ice, by Eldridge Cleaver

Supreme Court Decision on Findlaw:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=457&invol=853

Summary on Oyez.com:
http://www.oyez.org/cases/1980-1989/1981/1981_80_2043