Posted by Eugene Volokh:
What Do Supreme Court Precedents Tell Us About Removal of Books from School
Libraries:
http://volokh.com/archives/archive_2009_02_01-2009_02_07.shtml#1233957433
I often hear arguments that the Supreme Court has held that school
boards are limited by the Free Speech Clause in their ability to
remove books. A commenter on the [1]first thread in this chain offers
an example:
The distinction is that the school library already had the copy and
then removed it. While many will debate whether that distinction
makes a difference, it does under Supreme Court jurisprudence.
In fact, the U.S. Courts Web site says [2]the same.
But this turns out not to be an accurate statement of what the Supreme
Court has actually held. This issue was indeed before the court in
[3]Board of Ed. v. Pico, and four Justices did take the view that
library removal decisions were generally unconstitutional if they were
motivated by disapproval of the ideas that the book expresses (though
would be permissible if they were motivated by other, supposedly more
neutral, factors, such as the book's vulgarity or
age-inappropriateness or inaccuracy). And the four Justices were
joined by one Justice in affirming the lower court's decision, which
refused to grant summary judgment in favor of the school board.
But there were precisely the same number of votes -- four -- for the
view that even viewpoint-based removal decisions were generally
constitutional (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) as there were for the view that such decisions
were generally unconstitutional. The swing vote, Justice White,
deliberately did not opine on the question; Pico thus left the issue
4-4.
Why did Justice White agree as to the bottom line action -- affirming
the court of appeals decision -- with those Justices who thought
viewpoint-based removals were unconstitutional? Simply because he did
not want the issue resolved at that point, and procedurally the way to
avoid that was to affirm. Here's what happened, in Justice White's own
words (emphasis added):
The District Court found that the books were removed from the
school library because the school board believed them "to be, in
essence, vulgar." Both Court of Appeals judges in the majority
concluded, however, that there was a material issue of fact that
precluded summary judgment sought by petitioners. The unresolved
factual issue, as I understand it, is the reason or reasons
underlying the school board's removal of the books. I am not
inclined to disagree with the Court of Appeals on such a fact-bound
issue and hence concur in the judgment of affirmance. Presumably
this will result in a trial and the making of a full record and
findings on the critical issues.
The plurality seems compelled to go further and issue a
dissertation on the extent to which the First Amendment limits the
discretion of the school board to remove books from the school
library. I see no necessity for doing so at this point. When
findings of fact and conclusions of law are made by the District
Court, that may end the case. If, for example, the District Court
concludes after a trial that the books were removed for their
vulgarity, there may be no appeal. In any event, if there is an
appeal, if there is dissatisfaction with the subsequent Court of
Appeals' judgment, and if certiorari is sought and granted, there
will be time enough to address the First Amendment issues that may
then be presented.
I thus prefer the course taken by the Court in Kennedy v. Silas
Mason Co., 334 U.S. 249 (1948), a suit involving overtime
compensation under the Fair Labor Standards Act. Summary judgment
had been granted by the District Court and affirmed by the Court of
Appeals. This Court reversed, holding that summary judgment was
improvidently granted, and remanded for trial so that a proper
record could be made. The Court expressly abjured issuing its
advice on the legal issues involved. Writing for the Court, Justice
Jackson stated:
"We consider it the part of good judicial administration to
withhold decision of the ultimate questions involved in this case
until this or another record shall present a more solid basis of
findings based on litigation or on a comprehensive statement of
agreed facts. While we might be able, on the present record, to
reach a conclusion that would decide the case, it might well be
found later to be lacking in the thoroughness that should precede
judgment of this importance and which it is the purpose of the
judicial process to provide.
"Without intimating any conclusion on the merits, we vacate the
judgments below and remand the case to the District Court for
reconsideration and amplification of the record in the light of
this opinion and of present contentions."
We took a similar course in a unanimous per curiam opinion in
Dombrowski v. Eastland, 387 U.S. 82 (1967). There we overturned a
summary judgment since it was necessary to resolve a factual
dispute about collaboration between one of the respondents and a
state legislative committee. We remanded, saying: "In the absence
of the factual refinement which can occur only as a result of
trial, we need not and, indeed, could not express judgment as to
the legal consequences of such collaboration, if it occurred."
The Silas Mason case turned on issues of statutory construction. It
is even more important that we take a similar course in cases like
Dombrowski, which involved Speech or Debate Clause immunity, and in
this one, which poses difficult First Amendment issues in a largely
uncharted field. We should not decide constitutional questions
until it is necessary to do so, or at least until there is better
reason to address them than are evident here. I therefore concur in
the judgment of affirmance.
So that's why Pico has no precedential value on this question. The
Court's fractured decision in [4]United States v. American Library
Ass'n -- where there was also no majority opinion -- doesn't resolve
the issue, either. And no other decisions outside the library context
dictate, or in my view strongly suggest, a result. If the library were
treated as a "designated public forum" that's generally open for a
nearly limitless variety of speech, then the library wouldn't be able
to set up viewpoint-based restrictions on such speech. But library
shelving decisions have never been treated as such a forum, because
the choice of what books to select in the first place inherently
involves some content-based and often some viewpoint-based judgment.
There's no caselaw that squarely tells us whether there are
nonetheless constitutional constraints on such judgment, or whether
removal decisions are constitutionally different from selection
decisions.
In some ways, [5]NEA v. Finley is somewhat on point, because it too
involves government action that aims to impose some quality judgments,
and that is inherently content-based. And Finley does suggest that
"invidious viewpoint discrimination" in such judgments may be
unconstitutional, though presumably non-invidious viewpoint
discrimination would be permissible.
But Finley's point is just a suggestion -- the Court specifically
stresses that "we have no occasion here to address an as-applied
challenge in a situation where the denial of a grant may be shown to
be the product of invidious viewpoint discrimination," and while
there's also wording there that suggests such invidious viewpoint
discrimination would be impermissible, there's no square holding.
There is also no definition of when viewpoint discrimination becomes
"invidious," and it's not clear to what extent the Finley case,
involving arts grants, would carry over to the public library context
(and especially public library books aimed at children).
(Note that Pico was a school library case, and one could certainly
argue that decisions as to other public libraries, and especially the
adult-aimed collections of those libraries, are constitutionally
different from decisions as to school libraries or as to the
children's collections of other public libraries. But while this isn't
an implausible argument, it is again not one that is firmly supported
by existing precedent.)
So all this should make clear, I think, that there's no answer from
the Supreme Court on the subject; nor to my knowledge is there a broad
and firm consensus of lower courts. My sense is that, when it comes to
shelving and removal decisions, then-Justice Rehnquist's argument in
[6]Pico is the more persuasive one, at least as to the decisions in
the inherently content-based field and often viewpoint-based field of
what is to be on public school library shelves (though not necessarily
as to Internet access decisions, which could be content-neutral and
especially viewpoint-neutral). (I also think it's quite proper for
people to fault certain kinds of book removal decisions on the grounds
that those decisions show narrow-mindedness, or deny library patrons
-- including children -- valuable information, and are thus improper
even though they aren't unconstitutional or even more broadly
rights-violating. Of course, as with many ethical judgments, such a
judgment will turn considerably on the details of each case.)
References
1. http://volokh.com/archives/archive_2009_02_01-2009_02_07.shtml#1233952479
2. http://www.uscourts.gov/outreach/resources/landmark_studentcases.htm
3.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=457&invol=853
4.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=539&invol=194
5.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=97-371
6.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=457&invol=853
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
