The Eternally Radical Idea

To protect school libraries — and American pluralism — check Pico back in

Unlike the classroom, information does not travel down a one-way street; in the library, students have the freedom to choose their own adventure.

December 10, 2021

From Virginia to Alaska, from Texas to Maine, grade school libraries nationwide have been besieged this fall with demands from conservative parents, activists, and elected officials to remove books from their shelves. 

Calls to ban books are nothing new, sadly. Nor do they always come from one side of our political divide. But the current fervor has been intense. Deborah Caldwell-Stone, who leads the American Library Association’s Office for Intellectual Freedom, called the climate “unprecedented,” telling The Washington Post that she hadn’t “seen this number of challenges in this timeframe since I started working here 20 years ago.” 

As the ALA noted in a recent statement, the books targeted this fall typically contain narratives involving LGBTQ or racial identities.

Efforts to remove books from school library shelves feel deeply misguided to civil liberties advocates like me.

New York Times columnist Michelle Goldberg deemed the effort “a broader push to purge school libraries of books that affront conservative sensibilities regarding race and gender.” Nora Pelizzari of the National Coalition Against Censorship agrees, telling the Henrico Citizen (VA) that she’s seeing “a lot of challenges to books that deal with sexuality and gender,” coupled with a “huge increase in challenges to books that tell stories about racism, or that sort of center the experience of racialized violence or bigotry, or that just talk frankly about race.” 

Efforts to remove books from school library shelves feel deeply misguided to civil liberties advocates like me. For those who remember checking out Ray Bradbury’s classic “Fahrenheit 451” (itself an oft-banned book) from the library back in our own grade school days, banning a book from circulation because of its message seems like a dangerous step toward that dystopia. 

But given the recent national focus on critical race theory in schools, aptly analyzed by my colleagues in this space back in June, it should be unsurprising that the culture war battleground has expanded from the classroom to school library shelves. And as Greg and his co-authors noted, elected officials have broad power to control K-12 curricula — meaning that even if curricular choices are illiberal or unwise, they may well be constitutional. 

But what about school libraries? Do elected officials and school boards possess the same power to dictate a school library’s catalog that they do to dictate the curriculum?

Turns out the Supreme Court dealt with this exact question nearly four decades ago, in its 1982 decision in Board of Education, Island Trees Union Free School District No. 26 v. Pico. Even though the controversy that precipitated Pico took place in 1976 — that’s 45 years ago, for folks keeping score at home — the facts of the case wouldn’t be out of place in your local newspaper today. 

Revisiting Pico

Here’s the story: While attending a conference organized by a conservative parents’ organization, members of a Long Island, New York school district’s board of education received lists of “objectionable” books. Upon investigation back home, the Board discovered that 10 of the listed titles — including, among others, Richard Wright’s “Black Boy,” the anonymously penned “Go Ask Alice,” Kurt Vonnegut’s “Slaughterhouse Five,” Bernard Malamud’s “The Fixer,” and “The Best Short Stories by Negro Writers,” edited by Langston Hughes — were available in their high school and junior high libraries, and they directed that the books be taken off the shelves. After the removal made waves, the Board issued a press release describing the books as “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy.” The Board asserted that its members had a “moral obligation” to “protect the children in our schools from this moral danger as surely as from physical and medical dangers.” 

The Board convened a “Book Review Committee,” composed of four parents and four school staffers, and charged it with recommending whether the books should be retained, following consideration of their “educational suitability,” “good taste,” “relevance,” and “appropriateness to age and grade level.” The committee concluded that five of the books should be kept without restriction, but the Board rejected its recommendations, instead removing nine books from the libraries and allowing one to be checked out only with parental approval. 

In response, four students filed a First Amendment lawsuit against the Board, alleging that the books were removed because they “offended [the Board’s] social, political and moral tastes and not because the books, taken as a whole, were lacking in educational value.” (Quick aside: Check out NCAC’s 2013 interview with Steven Pico, one of the student plaintiffs. As he put it: “Then and now, I feel so proud to say, ‘There was one time in my life when I refused to compromise.’”)

The crux of the Pico plurality’s reasoning points the way toward a workable, rights-protective approach to school library shelves. 

The students and the Board traded wins in the lower courts, with the Board prevailing at the district court and the students successful on appeal to the U.S. Court of Appeals for the Second Circuit. The Supreme Court agreed to hear the case, but the Justices were unable to arrive at a simple majority. Instead, they splintered in spectacular fashion: Pico produced seven separate opinions. That’s a testament to the competing commitments at play — local control of education on one side, the individual rights of students to access ideas on the other. 

The students ultimately prevailed, with a four-Justice plurality and two concurring opinions carrying the day. But the Court’s failure to arrive at a simple majority has arguably weakened the case’s precedential value in the years since. That’s a shame for students, librarians, administrators, parents, school boards, and the rest of us, because the crux of the Pico plurality’s reasoning points the way toward a workable, rights-protective approach to school library shelves.  

The Pico plurality 

Writing for the plurality, Justice William Brennan was careful to first identify an important issue that was not before the Court: the question of curricular control. On that score, the Court was “in full agreement” with the Board: “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.’” (While Justice Brennan noted that the Court has “long recognized certain constitutional limits upon the power of the State to control even the curriculum and classroom,” those limits weren’t implicated here.)

The students’ challenge presented a different question. Because the Board’s action reached “beyond the compulsory environment of the classroom, into the school library and the regime of voluntary inquiry that there holds sway,” the students’ First Amendment rights were “directly and sharply implicated.” Allowing students broad “access to ideas” in their school libraries serves an educational function, preparing students for “active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.” In other words, the library is different. Unlike the classroom, information does not travel down a one-way street; in the library, students have the freedom to choose their own adventure. 

Justice Brennan and the plurality also usefully recognized that while the question presented was narrow, the stakes were high. Quoting Justice Robert Jackson’s eloquence in the landmark West Virginia Board of Education v. Barnette decision, the Pico plurality cautioned that the Board’s considerable authority must be exercised within the boundaries of the Bill of Rights “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.” Students learn what they’re taught, and heavy-handed government intervention into the intellectual lives of students is its own dangerous lesson. Notably, Justice Breyer sounded a similar note this summer in his majority opinion in Mahanoy Area School District v. B.L., characterizing public schools as “the nurseries of democracy,” responsible for teaching students how to live with opposing viewpoints.

Unlike the classroom, information does not travel down a one-way street; in the library, students have the freedom to choose their own adventure.

So even though school boards “rightly possess significant discretion to determine the content of their school libraries,” Justice Brennan reasoned, “that discretion may not be exercised in a narrowly partisan or political manner.” To that end, the Pico plurality indicated that the procedure a school board employs to review and remove books matters, too, cautioning that Pico “would be a very different case if the record demonstrated that petitioners had employed established, regular, and facially unbiased procedures for the review of controversial materials.” But on the record here, no such procedure existed. In fact, the Board outright rejected the recommendation of its own committee. 

In his concurring opinion, Justice Blackmun framed the issue differently, but reached the same conclusion. Rejecting the plurality’s emphasis on the unique role of school libraries and students’ ability to access ideas, Justice Blackmun instead focused on what he deemed a “narrower and more basic” principle: the First Amendment’s fundamental bar against state-mandated orthodoxy. 

Justice Blackmun granted that school officials “must be able to choose one book over another” for a wide variety of “politically neutral reasons”: a book’s relevance to the curriculum, for example, or the quality of its writing, its appropriateness for students’ age groups, its use of “offensive language,” or simply because they believe one book to be “more important” than another. But for Justice Blackmun, that significant discretion had a limit: No matter what, “school officials may not remove books for the purpose of restricting access to the political ideas or social perspectives discussed in them, when that action is motivated simply by the officials’ disapproval of the ideas involved.” (Emphasis in original.) That’s a solid boundary, precisely aligned with what Justice Jackson called the “fixed star in our constitutional constellation”: the principle that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” 

Pico provides a guide today 

So what’s Pico’s bottom line? Taking the plurality and the concurring opinions in sum, Pico’s core rule reads like this: A school board may have less power in the library than it does in the classroom, and that power cannot be wielded to silence certain views. Whatever process a school has in place to review a book’s place on library shelves has to be unbiased and consistent. 

But the Court’s guidance seems too often to have been forgotten this past fall. In Katy, Texas, the book “New Kid” was removed from library shelves in October and a visit by author Jerry Craft was canceled after complaints that the work made “white children… feel like oppressors.”

To protect school libraries — and to keep the hope of a tolerant, pluralist democracy alive in the next generation of Americans — we should follow the course laid out by the Court in Pico. 

(In light of Texas’ anti-critical race theory law, passed in September, the school district may have been motivated by a desire to avoid political controversy.) In Utah, a selection of books including Vladmir Nabokov’s “Lolita and Toni Morrison’s “The Bluest Eye” were pulled after a mother complained about their content. In Virginia, school board members removed books dealing with LGBTQ themes and called for an immediate audit of school library holdings to eliminate what one member called “bad, evil-related material.”

Politically motivated book bans have even begun to take the form of sharply increasing the financial and administrative burdens associated with keeping targeted books. For example, on Oct. 25, the Texas House Committee on General Investigating sent a letter and list of 850 books to the Texas Education Agency and all Texas school districts asking them to identify how many copies of each book they have, their location, the amount of funds spent on them, and to:

identify any other books or content in your District, specifying the campus location and funds spent on acquisition, that address or contain the following topics: human sexuality, sexually transmitted diseases, or human immunodeficiency virus (HIV) or acquired immune deficiency syndrome (AIDS), sexually explicit images, graphic presentations of sexual behavior that is in violation of the law, or contain material that might make students feel discomfort, guilt, anguish, or any other form of psychological distress because of their race or sex or convey that a student, by virtue of their race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously. [Emphasis added.]

This administrative burden, seemingly designed to be onerous, effectively incentivizes simply removing books outright. And according to Holly Eberle of the ALA’s Office of Intellectual Freedom, the request is having the intended effect in some districts. As Michael Powell of The New York Times reports today in a powerful review of the chill felt by Texas school librarians and teachers, a school district in San Antonio “ordered 400 books taken off its shelves for a review” just this week.

Further examples abound. In too many instances, decisions to remove books are being made on an ad hoc basis, with school districts either motivated by or capitulating to the political pressures of the moment. (And as a reminder that political winds can change swiftly, just last December, conservative groups were the voices calling for controversial classics to be restored to K-12 curricula.) But rushing to the shelves at the behest of the loudest voices is no way to educate students either about the nation or their individual rights. To protect school libraries — and to keep the hope of a tolerant, pluralist democracy alive in the next generation of Americans — we should follow the course laid out by the Court in Pico.