The Library Bill of Rights - a critique - The Library Bill of Rights

Library Trends, Summer, 1996 by Gordon B. Baldwin

Two of the four dissenting Justices in Pico, all of whom wrote forcefully, remain on the Court and might today be joined by Justices Scalia, Thomas, and Kennedy in rulings favorable to school administrators. Chief Justice Burger, joined by Justices Powell, Rehnquist, and O'Connor, agreed that a school board enjoys discretion to select the books in a library. Chief Justice Burger and Justice Powell expressed dismay over the corrosion of school board authority. Justice Powell, a former school board member, noted that, in the Pico case, the school board took its responsibilities seriously and tried to decide what values to impart--a task, after all, they were elected to do. If the majority in Pico means that any junior high school student can get a judge to reverse a book removal decision,Justice Powell rightly objects. Powell appended a summary of excerpts from the books showing some reason to believe the volumes contain substantial racist and/or vulgar words, and therefore, in his view, justified a decision to remove.

In his strong dissent in Pico, Justice Rehnquist stressed the school's interest in determining what the educational program should be, an interest that encompassed deciding what books to place in a library. School board actions are part of many choices that are necessary in the ordinary course of their duties. He viewed a school library simply as a supplement to a public institution engaged in "the selective conveyance of ideas." Thus, he said, public libraries enjoyed more discretion to exclude because the challenged books were generally available. Justice O'Connor took a more measured view of the removal decisions which, on the merits, she thought wrong. However, she believed the board's decisions were entitled to great deference.

The Pico case presents several problems. How does one measure a decision-maker's purpose? If a school board decides only that "the books lack significant educational value," does a Court have the authority to challenge that decision as erroneous? If a school board overrules the school faculty, does the Court have authority to prefer the faculty decision to that of the elected school board? In several recent cases, the Court has sustained seemingly absurd school decisions because the actors held administrative authority. Justice Brennan's plurality opinion in Pico does not deny administrative decision making. Where evidence of a political motivation appears debatable, one can expect courts to favor the administrators unless they find a constitutional violation. In 1968, the Court protected a teacher's freedom in a classroom, preferring the right to teach evolutionary biology over a legislative ban on such teaching (Epperson v. Arkansas, 1968). Twenty years later, however, the Court approved the censorship imposed by a school on a student newspaper which school officials found invaded the privacy of other students (Hazelwood School Dist. v. Kuhlmeier, 1988), and a lower court allowed removal of a text containing Chaucer's Miller's Tale (Virgil v. School Bd. of Columbia Co., 1988). In short, Pico does not mean much.