Forty years ago, the Supreme Court handed down their decision in Board of Education v. Pico, a landmark case on censorship in schools. While the Supreme Court ruled in favor of the Island Trees students, the decision was not as decisive as it could have been. The lack of a uniform and clear decision from the highest court left the field open for our current wave of censorship attempts.
To fully understand the Pico decision, we need to look at how it came about.
“Objectionable” and “improper fare for school students”
In the fall of 1975, school board members from the Island Trees school district attended a conference sponsored by a politically conservative parent group. At the conference, they were given a list of books the parent group found “objectionable” and “improper fare for school students”. The members of the school board took it upon themselves to review the library collections, after hours and without staff present, to compare the list against what was accessible to students and found eleven of the “objectionable” books on the shelves.
Slaughterhouse-Five, by Kurt Vonnegut, Jr. The Naked Ape, by Desmond Morris Down These Mean Streets, by Piri Thomas Best Short Stories of Negro Writers, edited by Langston Hughes Go Ask Alice, of anonymous authorship Laughing Boy, by Oliver LaFarge Black Boy, by Richard Wright A Hero Ain't Nothin' but a Sandwich, by Alice Childress Soul on Ice, by Eldridge Cleaver A Reader for Writers, edited by Jerome Archer
In February of 1976, in a closed meeting, the Board directed the Superintendent of Schools, as well as the Principals of both the Junior and High schools to remove the books so the Board could read them. When the actions of the Board attracted media attention, they put out a press release to justify their actions, stating that the books were “anti-American, anti-Christian, anti-Semetic, and just plain filthy,” concluding “[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”.
In March, the Board appointed a “Book Review Committee” comprised of eight members: four Island Tree parents and four members of school staff, to read the books and give their recommendations to the Board based on “educational suitability,” “good taste,” “relevance,” and “appropriateness to age and grade level”. By July 1976 the committee had reached a decision: five of the books should be returned to the libraries, two should be removed completely, one should be retained but should require parental approval to check out, and two they were undecided about. The Board rejected the majority of their recommendations, returning one book to the libraries, keeping a second with the understanding it could be checked out only with parental approval, and the other nine were removed completely.
In January 1977, five students, led by Steven Pico, sued the Island Trees Board of Education in U.S. District Court for violating their First Amendment rights. The District Court found in favor of the School Board immediately, saying the Board had the authority to remove anything they found vulgar, in bad taste, immoral, or irrelevant. The students, aged 13 to 17 at the time the books were removed, appealed. Two more judgements, and a second appeal later, the case was presented in front of the Supreme Court on March 2, 1982. The Supreme Court announced their decision on June 25, 1982, six years after the books were removed from the schools.
“In brief, we hold that local school boards may not remove books from school library shelves 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.” Such purposes stand inescapably condemned by our precedents.”Justice William Brennan
The Supreme Court’s Decision
Justice William Brennan announced the Court’s decision, saying it boiled down to the intent of the School Board when they removed the items: if it was to deny access to ideas they disagreed with, it was a First Amendment violation.
While the Supreme Court found in favor of Steven Pico and the other students, there were seven different opinions written regarding the decision. Justices Thurgood Marshall, John Paul Stevens, and Byron White concurred with the decision; Justice Harry Blackmum concurred in part; and Chief Justice Burger, and Justices Lewis Powell, William Rehnquist, and Sandra Day O’Connor dissented, rejecting the right of the students to have access to particular books. Justice Rehnquist in his dissenting opinion said students don’t have the right of access in school to anything beyond what their educators think is necessary.
The decision, while technically in favor of Steven Pico and his fellow students, should have been the final answer on the issue. However, it was not definitive nor clear enough to dissuade or prevent repeated censorship attempts by school boards and parents alike in the intervening decades. Additionally, the decision states materials cannot be removed if they violate a governing body’s personal political or social views; it does not protect materials that are removed under the argument of vulgarity or education suitability, nor does it protect materials that have yet to be added to collections in schools. The Justices discussed at length the right to receive information and what was considered appropriate scope of authority by school boards to control the information available to students; however, they did not show a clear majority in their decision. Legal articles surrounding the Pico case show how nebulous some of the word choices used in the decision were; subsequent challenges in lower courts have used those unfortunate word choices to erode the Supreme Court’s decision in later cases.
In essence, the Supreme Court decided this particular case but failed to do so in a way that was clear and final that would prevent future censorship attempts by governing bodies—the fallout of which we are now seeing nationwide. With state legislatures passing censorship laws in multiple states, it is only a matter of time before the battle for access reaches the Supreme Court once more.
Kicking the Can to 2022
The latest wave of challenges we have seen recently take advantage of the loophole left in the Supreme Court’s ruling by using justifications and language related to “educational appropriateness” and “pornographic material.” The language choice should not come as a surprise. Using this framework, the challenges aren’t technically based on personal political views or values, but whether something is “appropriate” or “pornographic” (the apparent modern-day equivalent of vulgar), the clear loopholes left in the decision. Perhaps more frightening are the laws passing at the state legislative level in several states across the country. Tennessee’s HB 2666/SB 2247 in particular stands out, where not only is the state trying to censor access, but the bill’s sponsor also flat out admitted he’d burn materials he found offensive. Florida’s CS/HB 1467 caused the Brevard Public Schools to remove the app Epic from its computer system as a preemptive move, sparking alarm by parents at how quickly electronic resources that had gotten children through the pandemic could be taken away with the flip of a switch. The parallels from forty years ago are numerous, but the problem remains the same: a loud minority of people are pushing to censor what students have access to in schools on unprecedented levels. While we can look at the Pico decision to draw some comfort, it does not mean the same case would play out similarly with today’s Supreme Court. All we can do is keep fighting for open access, and hope the legacy of Pico continues to be one of victory for the First Amendment, rather than a memory of what we once had.
Nia Thimakis is a substitute librarian in the Carroll County Public Library system in Maryland. She has been active on state and ALA divisions and round tables since 2016, and has had a strong opinion against banning books since she was young. Lucky enough to attend schools that believed in access to typically banned materials, and growing up in a house that supported uncensored reading, she believes access should not be a matter of luck or circumstance. She has experience in nonprofits, technical writing, instructional design, and has a love for exploring coffee shops with her daughter.