Unraveling the Right to Read: The Implication of Board of Education v. Pico
Between January 1 and August 31, 2022, the American Library Association tracked over six hundred attempts to ban library resources, implicating a trajectory surpassing the 2021 record for the highest number of attempted bans in over 20 years [1]. Book and curricula banning have an enduring history of entrenchment in racism, dating back to the construction of public education in the decades after slavery. In contemporary society, most books challenged in public schools across the United States explicitly address LGBTQ+ themes or depict people of color as prominent characters. The right to read and receive information in school received interpretation in The Board of Education v. Pico (1982), in which the Island Trees Union Free School District’s Board of Education ordered a grouping of books for removal from school libraries due to their “anti-American, anti-Christian, anti-Semitic, and just plain filthy” themes [2]. Taken from the federal district court to the U.S. Court of Appeals for the Second Circuit, the case came under review by the Supreme Court in 1982, which concluded that the Board of Education’s decision to ban certain books violated freedom of speech protections cemented by the First Amendment [3]. While the Court upheld the rights of students and returned the challenged books to library shelves, the decision has failed to deter parents and political groups from censorship efforts in the 21st century. Following the Board of Education v. Pico decision, politically motivated attempts to censor books and ideas gain legitimacy through vulgarity and suitability arguments, maintaining the constitutionality of removing targeted materials by disguising the language describing their restriction.
Despite ruling in favor of students’ First Amendment rights to access literature and ideas, the decision and dissenting opinion of Board of Education v. Pico points to the ambiguity of constitutionally defensible criticisms for restricting academic content. In the plurality opinion, Justice Brennan, in conjunction with Justice Marshall and Justice Stevens, concluded that “whether petitioners’ removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners’ actions.”[4] Such a conclusion establishes a faulted logic used by the Island Trees Union Free School District’s Board of Education, which invoked challenges based on a book’s unorthodox views on politics, nationalism, and religion. The plurality opinion goes on to express that “respondents implicitly concede that an unconstitutional motivation would not be demonstrated if it were shown that petitioners had decided to remove the books at issue because those books were pervasively vulgar.”[5] In addition to using the term ‘educational suitability,’ the phrasing of this allowance legitimizes vulgarity and obscenity arguments, inadvertently laying the groundwork for future book and curricula challenges to rework their approaches to match motivations deemed acceptable by the Court.
The dissenting opinion, while writing in favor of removing books challenged by the District’s Board of Education, elucidates the ambiguity of the plurality opinion. Chief Justice Burger, Justice Powell, Justice Rehnquist, and Justice O’Connor directly criticize the language of the plurality opinion, indicating “educational suitability, however, is a standardless phrase. This conclusion will undoubtedly be drawn in many—if not most—instances because of the decisionmaker’s content-based judgment that the ideas contained in the book…are inappropriate for teenage pupils.”[6] By leaving interpretation in the hands of the ruling judge or school board, the plurality opinion makes measures of appropriateness pliant to a representative’s partisan leanings.
The flexibility and discretion given to school boards in the Board of Education v. Pico’s plurality decision prove vulnerable to exploitation, demonstrated by repetitive petitioning against books depicting race or sexuality that use arguments of educational suitability and vulgarity as a crux to remain unabated. Petitions for the removal of books commonly describe challenged books in unobjective terms, such as “sexually explicit,” “age-inappropriate,” and “divisive.” In locations where courts and representatives support conservative ideas on education, these complaints hold significant value and influence over the transformation of academic materials. Conservative groups, such as Moms for Liberty, drive efforts to ban books across the southern United States by mobilizing parents and community groups to file complaints for review or formal reconsideration. A complaint launched in Williamson County Schools stated that materials focused excessively on the segregationist past of the U.S. and could make children feel uncomfortable about race [7]. Moms for Liberty seek to impose parental control over the content consumed by children in schools, targeting books involving sexual acts, expressions of gender identity, and critical race theory, which they describe as potentially infringing upon “childhood innocence.”[8] While their complaints remain grounded in the subject legitimacy of certain information, petitioners now appeal to the constitutionality of objecting to harmful, obscene, or unmerited material.
The civic values of parents play a significant role in creating appropriate and fruitful education; however, when politically driven groups control access to materials for all students, the Supreme Court’s interpretation of First Amendment protections clearly falls short of protecting children from harmful censorship. While petitioners often frame their attempts at censorship to represent an unbiased knowledge system, the rhetoric behind notions of vulgarity or appropriateness falls back on political and religious beliefs about concepts that belong in education. Another group with multiple chapters petitioning for book and curricula banning, No Left Turn in Education, explicitly states their aim in “pushing back on the Progressive agenda,” including teaching topics such as racism and privilege [9]. Despite the Board of Education v. Pico attempting to limit discretion in a narrowly partisan or political manner, such terms prove ineffective in separating politically driven groups from determining the rights of students to read and access information. While books with graphic scenes or obscene language may receive proper flagging by parents, framing literature as ‘dangerous indoctrination’ overshadows the severity of censorship and removal of literature from classrooms.
Given the support enlisted from school board members, Governors, and other state representatives, the flimsy protections observed by the Supreme Court allow the educational experience of a diverse body of students to become ruled by the moral standings of a small and highly vocal grouping of parents. Without a robust legal deterrent to book censorship, parents encourage district-wide bills that mandate the removal of numerous books at once; The Alpine School District in Utah removed 52 titles from their shelves in July 2022 in response to a new bill on sensitive materials in schools [10]. While many challenged books are overruled and subsequently returned to school libraries, it can take months or years for students to receive content again, depending on the length of legal proceedings. Ultimately, the frequency of complaints and content removal still results in a loss of educational content, even when the final ruling constitutes protection of access [11].
The glaring ambiguity of Board of Education v. Pico and unstandardized processes of addressing censorship leave public school systems vulnerable to repeated attacks and complaints about the content delivered to students. When state courts and school boards retain responsibility for untangling the legitimacy of parental claims, overarching bans and changes to public school education come under the influence of partisan actors. In ignoring the guidance and knowledge of librarians, academic professionals, and students affected by such changes, book and curricula bans restrict the ability to teach and acknowledge children from diverse backgrounds and identities. By failing to properly develop the right to receive information, the Supreme Court leaves lower courts and school boards at a constant in-between of parents and organizations with different perspectives of educational suitability and appropriate values for literature.
Bibliography
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http://www.ala.org/news/press-releases/2022/09/ala-releases-preliminary-data-2022-book-bans (Accessed August 1, 2023)
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“Island of Trees Sch. Dist. V. Pico by Pico,” Justia Law
Friedman, Jonathan and Johnson, Farid Nadine, “Banned in the USA: Rising School Book Bans Threaten Free Expression and Students’ First Amendment Rights (April 2022),” PEN America (blog), April 7, 2022, https://pen.org/banned-in-the-usa/.
Hayasaki, Erika, “How Book Bans Turned a Texas Town Upside Down - The New York Times,” accessed March 5, 2023, https://www.nytimes.com/2022/09/08/magazine/book-bans-texas.html.
“No Left Turn in Education | Facebook,” accessed March 5, 2023, https://www.facebook.com/noleftturnineducation/.
Friedman, Jonathan and Johnson, Farid Nadine, “Banned in the USA: Rising School Book Bans Threaten Free Expression and Students’ First Amendment Rights (April 2022),” PEN America (blog), April 7, 2022, https://pen.org/banned-in-the-usa/.
Robert Kim, “Under The Law: Banning Books: Unlawful Censorship, or within a School’s Discretion?,” Phi Delta Kappan 103, no. 7 (April 1, 2022): 62–64, https://doi.org/10.1177/00317217221092240.