Bd. of Educ. v Pico – 1982 – pervasively vulgar books may be excluded from public school libraries

BOARD OF EDUCATION v. PICO, 457 U.S. 853 (1982)

457 U.S. 853

No. 80-2043.


Argued March 2, 1982
Decided June 25, 1982



Petitioner Board of Education, rejecting recommendations of a committee of parents and school staff that it had appointed, ordered that certain books, which the Board characterized as “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy,” be removed from high school and junior high school libraries. Respondent students then brought this action for declaratory and injunctive relief under 42 U.S.C. 1983 against the Board and petitioner Board members, alleging that the Board’s actions had denied respondents their rights under the First Amendment. The District Court granted summary judgment in petitioners’ favor. The Court of Appeals reversed and remanded for a trial on the merits of respondents’ allegations.


The judgment is affirmed.

638 F.2d 404, affirmed.


    1. The First Amendment imposes limitations upon a local school board’s exercise of its discretion to remove books from high school and junior high school libraries. Pp. 863-872.
    • (a) Local school boards have broad discretion in the management of school affairs, but such discretion must be exercised in a manner that comports with the transcendent imperatives of the First Amendment. Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Tinker v. Des Moines School Dist.,

393 U.S. 503, 506

    , and such rights may be directly and sharply implicated by the removal of books from the shelves of a school library. While students’ First Amendment rights must be construed “in light of the special characteristics of the school environment,” ibid., the special characteristics of the school library make that environment especially appropriate for the recognition of such rights. Pp. 863-869.
    • (b) While petitioners might rightfully claim absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values in schools, petitioners’ reliance upon that duty is misplaced

[457 U.S. 853, 854]

    where they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom into the school library and the regime of voluntary inquiry that there holds sway. P. 869.
    • (c) Petitioners possess significant discretion to determine the content of their school libraries, but that discretion may not be exercised in a narrowly partisan or political manner. Whether petitioners’ removal of books from the libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners’ actions. Local school boards may not remove books from school libraries 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.” West Virginia Board of Education v. Barnette,

319 U.S. 624, 642

    . If such an intention was the decisive factor in petitioners’ decision, then petitioners have exercised their discretion in violation of the Constitution. Pp. 869-872.
    2. The evidentiary materials before the District Court must be construed favorably to respondents, given the procedural posture of this case. When so construed, those evidentiary materials raise a genuine issue of material fact as to whether petitioners exceeded constitutional limitations in exercising their discretion to remove the books at issue from their school libraries. Respondents’ allegations, and some of the evidentiary materials before the District Court, also fail to exclude the possibility that petitioners’ removal procedures were highly irregular and ad hoc – the antithesis of those procedures that might tend to allay suspicions regarding petitioners’ motivation. Pp. 872-875.
    JUSTICE BLACKMUN concluded that a proper balance between the limited constitutional restriction imposed on school officials by the First Amendment and the broad state authority to regulate education, would be struck by holding that school officials may not remove books from school libraries for the purpose of restricting access to the political ideas or social perspectives discussed in the books, when that action is motivated simply by the officials’ disapproval of the ideas involved. Pp. 879-882.
    JUSTICE WHITE, while agreeing that there should be a trial to resolve the factual issues, concluded that there is no necessity at this point for discussing the extent to which the First Amendment limits the school board’s discretion to remove books from the school libraries. Pp. 883-884.

BRENNAN, J., announced the judgment of the Court and delivered an opinion, in which MARSHALL and STEVENS, JJ., joined and in all but Part II-A(1) of which BLACKMUN, J., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, post, p. 875. WHITE, J., filed an opinion concurring in the judgment, post, p. 883. BURGER, C. J., filed a [457 U.S. 853, 855] dissenting opinion, in which POWELL, REHNQUIST, and O’CONNOR, JJ., joined, post, p. 885. POWELL, J., filed a dissenting opinion, post, p. 893. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., and POWELL, J., joined, post, p. 904. O’CONNOR, J., filed a dissenting opinion, post, p. 921.

George W. Lipp, Jr., argued the cause for petitioners. With him on the briefs was David S. J. Rubin.

Alan H. Levine argued the cause for respondents. With him on the brief were Steven R. Shapiro, Burt Neuborne, Alan Azzara, Bruce J. Ennis, Jr., and Charles S. Sims. *


Footnote * ] Briefs of amici curiae urging reversal were filed by Bruce A. Taylor for Charles H. Keating, Jr., et al.; and by David Crump for the Legal Foundation of America.

Briefs of amici curiae urging affirmance were filed by J. Albert Woll, Marsha Berzon, Laurence Gold, and George Kaufmann for the American Federation of Labor and Congress of Industrial Organizations et al.; by Don H. Reuben and James A. Klenk for the American Library Association et al.; by Harold P. Weinberger, Justin J. Finger, and Jeffrey P. Sinensky for the Anti-Defamation League of B’Nai B’Rith; by R. Bruce Rich for the Association of American Publishers, Inc., et al.; by Irwin Karp for the Authors League of America, Inc.; by Robert M. Weinberg, Michael H. Gottesman, and David Rubin for the National Education Association; by James R. Sandner, Jeffrey S. Karp, and Elizabeth A. Truly for New York State United Teachers; and by Jerry Simon Chasen and Marcia B. Paul for P. E. N. American Center.

Briefs of amici curiae were filed by Nathan Z. Dershowitz and Edward Labaton for the American Jewish Congress et al.; and by Whitney North Seymour, Jr., and Martha L. Wolfe for the Long Island Library Association Coalition.

JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion, in which JUSTICE MARSHALL and JUSTICE STEVENS joined, and in which JUSTICE BLACKMUN joined except for Part II-A-(1).

The principal question presented is whether the First Amendment 1 imposes limitations upon the exercise by a local [457 U.S. 853, 856] school board of its discretion to remove library books from high school and junior high school libraries.



Petitioners are the Board of Education of the Island Trees Union Free School District No. 26, in New York, and Richard Ahrens, Frank Martin, Christina Fasulo, Patrick Hughes, Richard Melchers, Richard Michaels, and Louis Nessim. When this suit was brought, Ahrens was the President of the Board, Martin was the Vice President, and the remaining petitioners were Board members. The Board is a state agency charged with responsibility for the operation and administration of the public schools within the Island Trees School District, including the Island Trees High School and Island Trees Memorial Junior High School. Respondents are Steven Pico, Jacqueline Gold, Glenn Yarris, Russell Rieger, and Paul Sochinski. When this suit was brought, Pico, Gold, Yarris, and Rieger were students at the High School, and Sochinski was a student at the Junior High School.

In September 1975, petitioners Ahrens, Martin, and Hughes attended a conference sponsored by Parents of New York United (PONYU), a politically conservative organization of parents concerned about education legislation in the State of New York. At the conference these petitioners obtained lists of books described by Ahrens as “objectionable,” App. 22, and by Martin as “improper fare for school students,” id., at 101. 2 It was later determined that the High School library contained nine of the listed books, and that another listed book was in the Junior High School library. 3 In [457 U.S. 853, 857] February 1976, at a meeting with the Superintendent of Schools and the Principals of the High School and Junior High School, the Board gave an “unofficial direction” that the listed books be removed from the library shelves and delivered to the Board’s offices, so that Board members could read them. 4 When this directive was carried out, it became publicized, and the Board issued a press release justifying its action. It characterized the removed books as “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy,” and concluded that “[i]t is our duty, our moral obligation, to protect the children in our schools from this moral danger as surely as from physical and medical dangers.” 474 F. Supp. 387, 390 (EDNY 1979).

A short time later, the Board appointed a “Book Review Committee,” consisting of four Island Trees parents and four members of the Island Trees schools staff, to read the listed books and to recommend to the Board whether the books should be retained, taking into account the books’ “educational suitability,” “good taste,” “relevance,” and “appropriateness to age and grade level.” In July, the Committee [457 U.S. 853, 858] made its final report to the Board, recommending that five of the listed books be retained 5 and that two others be removed from the school libraries. 6 As for the remaining four books, the Committee could not agree on two, 7 took no position on one, 8 and recommended that the last book be made available to students only with parental approval. 9 The Board substantially rejected the Committee’s report later that month, deciding that only one book should be returned to the High School library without restriction, 10 that another should be made available subject to parental approval, 11 but that the remaining nine books should “be removed from elementary and secondary libraries and [from] use in the curriculum.” Id., at 391. 12 The Board gave no reasons for rejecting the recommendations of the Committee that it had appointed.

Respondents reacted to the Board’s decision by bringing the present action under 42 U.S.C. 1983 in the United States District Court for the Eastern District of New York. They alleged that petitioners had


    • “ordered the removal of the books from school libraries and proscribed their use in the curriculum because particular passages in the books offended their social, political

[457 U.S. 853, 859]

    and moral tastes and not because the books, taken as a whole, were lacking in educational value.” App. 4.

Respondents claimed that the Board’s actions denied them their rights under the First Amendment. They asked the court for a declaration that the Board’s actions were unconstitutional, and for preliminary and permanent injunctive relief ordering the Board to return the nine books to the school libraries and to refrain from interfering with the use of those books in the schools’ curricula. Id., at 5-6.

The District Court granted summary judgment in favor of petitioners. 474 F. Supp. 387 (1979). In the court’s view, “the parties substantially agree[d] about the motivation behind the board’s actions,” id., at 391 – namely, that


    “the board acted not on religious principles but on its conservative educational philosophy, and on its belief that the nine books removed from the school library and curriculum were irrelevant, vulgar, immoral, and in bad taste, making them educationally unsuitable for the district’s junior and senior high school students.” Id., at 392.

With this factual premise as its background, the court rejected respondents’ contention that their First Amendment rights had been infringed by the Board’s actions. Noting that statutes, history, and precedent had vested local school boards with a broad discretion to formulate educational policy, 13 the court concluded that it should not intervene in “`the daily operations of school systems'” unless “`basic constitutional values'” were “`sharply implicate[d],'” 14 and determined [457 U.S. 853, 860] that the conditions for such intervention did not exist in the present case. Acknowledging that the “removal [of the books] . . . clearly was content-based,” the court nevertheless found no constitutional violation of the requisite magnitude:


    “The board has restricted access only to certain books which the board believed to be, in essence, vulgar. While removal of such books from a school library may . . . reflect a misguided educational philosophy, it does not constitute a sharp and direct infringement of any first amendment right.” Id., at 397.

A three-judge panel of the United States Court of Appeals for the Second Circuit reversed the judgment of the District Court, and remanded the action for a trial on respondents’ allegations. 638 F.2d 404 (1980). Each judge on the panel filed a separate opinion. Delivering the judgment of the court, Judge Sifton treated the case as involving “an unusual and irregular intervention in the school libraries’ operations by persons not routinely concerned with such matters,” and concluded that petitioners were obliged to demonstrate a reasonable basis for interfering with respondents’ First Amendment rights. Id., at 414-415. He then determined that, at least at the summary judgment stage, petitioners had not offered sufficient justification for their action, 15 and concluded that respondents “should have . . . been offered an opportunity to persuade a finder of fact that the ostensible justifications for [petitioners’] actions . . . were simply pretexts for the suppression of free speech.” Id., at 417. 16 Judge Newman [457 U.S. 853, 861] concurred in the result. Id., at 432-438. He viewed the case as turning on the contested factual issue of whether petitioners’ removal decision was motivated by a justifiable desire to remove books containing vulgarities and sexual explicitness, or rather by an impermissible desire to suppress ideas. Id., at 436-437. 17 We granted certiorari, 454 U.S. 891 (1981).



We emphasize at the outset the limited nature of the substantive question presented by the case before us. Our precedents have long recognized certain constitutional limits upon the power of the State to control even the curriculum and classroom. For example, Meyer v. Nebraska, 262 U.S. 390 (1923), struck down a state law that forbade the teaching of modern foreign languages in public and private schools, and Epperson v. Arkansas, 393 U.S. 97 (1968), declared unconstitutional a state law that prohibited the teaching of the Darwinian theory of evolution in any state-supported school. But the current action does not require us to re-enter this difficult terrain, which Meyer and Epperson traversed without apparent misgiving. For as this case is presented to us, it does not involve textbooks, or indeed any books that Island [457 U.S. 853, 862] Trees students would be required to read. 18 Respondents do not seek in this Court to impose limitations upon their school Board’s discretion to prescribe the curricula of the Island Trees schools. On the contrary, the only books at issue in this case are library books, books that by their nature are optional rather than required reading. Our adjudication of the present case thus does not intrude into the classroom, or into the compulsory courses taught there. Furthermore, even as to library books, the action before us does not involve the acquisition of books. Respondents have not sought to compel their school Board to add to the school library shelves any books that students desire to read. Rather, the only action challenged in this case is the removal from school libraries of books originally placed there by the school authorities, or without objection from them.

The substantive question before us is still further constrained by the procedural posture of this case. Petitioners were granted summary judgment by the District Court. The Court of Appeals reversed that judgment, and remanded the action for a trial on the merits of respondents’ claims. We can reverse the judgment of the Court of Appeals, and [457 U.S. 853, 863] grant petitioners’ request for reinstatement of the summary judgment in their favor, only if we determine that “there is no genuine issue as to any material fact,” and that petitioners are “entitled to a judgment as a matter of law.” Fed. Rule Civ. Proc. 56(c). In making our determination, any doubt as to the existence of a genuine issue of material fact must be resolved against petitioners as the moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 -159 (1970). Furthermore, “[o]n summary judgment the inferences to be drawn from the underlying facts contained in [the affidavits, attached exhibits, and depositions submitted below] must be viewed in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

In sum, the issue before us in this case is a narrow one, both substantively and procedurally. It may best be restated as two distinct questions. First, does the First Amendment impose any limitations upon the discretion of petitioners to remove library books from the Island Trees High School and Junior High School? Second, if so, do the affidavits and other evidentiary materials before the District Court, construed most favorably to respondents, raise a genuine issue of fact whether petitioners might have exceeded those limitations? If we answer either of these questions in the negative, then we must reverse the judgment of the Court of Appeals and reinstate the District Court’s summary judgment for petitioners. If we answer both questions in the affirmative, then we must affirm the judgment below. We examine these questions in turn.





The Court has long recognized that local school boards have broad discretion in the management of school affairs. See, e. g., Meyer v. Nebraska, supra, at 402; Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925). Epperson v. Arkansas, [457 U.S. 853, 864] supra, at 104, reaffirmed that, by and large, “public education in our Nation is committed to the control of state and local authorities,” and that federal courts should not ordinarily “intervene in the resolution of conflicts which arise in the daily operation of school systems.” Tinker v. Des Moines School Dist., 393 U.S. 503, 507 (1969), noted that we have “repeatedly emphasized . . . the comprehensive authority of the States and of school officials . . . to prescribe and control conduct in the schools.” We have also acknowledged that public 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.” Ambach v. Norwick, 441 U.S. 68, 76 -77 (1979). We are therefore in full agreement with petitioners that local school boards must be permitted “to establish and apply their curriculum in such a way as to transmit community values,” and that “there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political.” Brief for Petitioners 10. 19

At the same time, however, we have necessarily recognized that the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment. In West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), we held that under the First Amendment a student in a public school could not be compelled to salute the flag. We reasoned:


    • “Boards of Education . . . have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional

[457 U.S. 853, 865]

    freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.” Id., at 637.

Later cases have consistently followed this rationale. Thus Epperson v. Arkansas invalidated a State’s anti-evolution statute as violative of the Establishment Clause, and reaffirmed the duty of federal courts “to apply the First Amendment’s mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry.” 393 U.S., at 104 . And Tinker v. Des Moines School Dist., supra, held that a local school board had infringed the free speech rights of high school and junior high school students by suspending them from school for wearing black armbands in class as a protest against the Government’s policy in Vietnam; we stated there that the “comprehensive authority . . . of school officials” must be exercised “consistent with fundamental constitutional safeguards.” 393 U.S., at 507 . In sum, students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” id., at 506, and therefore local school boards must discharge their “important, delicate, and highly discretionary functions” within the limits and constraints of the First Amendment.

The nature of students’ First Amendment rights in the context of this case requires further examination. West Virginia Board of Education v. Barnette, supra, is instructive. There the Court held that students’ liberty of conscience could not be infringed in the name of “national unity” or “patriotism.” 319 U.S., at 640 -641. We explained that


    • “the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” Id., at 642.

[457 U.S. 853, 866]

    Similarly, Tinker v. Des Moines School Dist., supra, held that students’ rights to freedom of expression of their political views could not be abridged by reliance upon an “undifferentiated fear or apprehension of disturbance” arising from such expression:


      • “Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago,

    337 U.S. 1

      • (1949); and our history says that it is this sort of hazardous freedom – this kind of openness – that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this . . . often disputatious society.”

    393 U.S., at 508


    In short, “First Amendment rights, applied in light of the special characteristics of the school environment, are available to . . . students.” Id., at 506.

    Of course, courts should not “intervene in the resolution of conflicts which arise in the daily operation of school systems” unless “basic constitutional values” are “directly and sharply implicate[d]” in those conflicts. Epperson v. Arkansas, 393 U.S., at 104 . But we think that the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library. Our precedents have focused “not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas.” First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978). And we have recognized that “the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.” Griswold v. Connecticut, 381 U.S. 479, 482 (1965). In keeping with this principle, [457 U.S. 853, 867] we have held that in a variety of contexts “the Constitution protects the right to receive information and ideas.” Stanley v. Georgia,394 U.S. 557, 564 (1969); see Kleindienst v. Mandel, 408 U.S. 753, 762 -763 (1972) (citing cases). This right is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution, in two senses. First, the right to receive ideas follows ineluctably from the sender’s First Amendment right to send them: “The right of freedom of speech and press . . . embraces the right to distribute literature, and necessarily protects the right to receive it.” Martin v. Struthers, 319 U.S. 141, 143 (1943) (citation omitted). “The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.

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