Beyond the Schoolhouse Gate: Free Speech and the Inculcation of Values

Seven. Access to Information and Ideas

Seven Access to Information and Ideas [Some] authorized person or body has to make a determination as to vvhatthe library collection vvill be. It is predictable that no matter vvhat choice of books may be made by vvhatever segment of academe, some other person or group may vvell dissent. The 130 Chapter Seven ensuing shouts of book burning, vvitch hunting and violation of academic freedom hardly elevate this intramural strife to first amendment constitutional proportions. If it did, there vvould be a constant intrusion of the judiciary into the internal affairs of the school. Academic freedom is scarcely fostered by the intrusion of three or even nine federal jurists making curriculum or library choices for the community of scholars. Presidents Council, District 25 v. Community School Board While toleration and association disputes involve direct student expression , indoctrination disputes consider whether the First Amendment confers upon public school pupils a "right to receive" information and ideas from third parties. The bulk of disputes over such a right concern the removal of books from school libraries.1 Island Trees v. Pica The United States Supreme Court, in a 1982 plurality ruling, recognized a First Amendment "right to receive" for public school students . This case, entailing seven opinions, merits extensive discus- Access to Information and Ideas 131 sion, for it reflects the precarious nature and character of the right. In September 1975 a local school board justified the removal of the following books as "anti-American, anti-Christian, anti-Semitic, and just plain filthy": Slaughterhouse-Five, by Kurt Vonnegut, Jr. The Naked Ape, by Desmond Morris Down These Mean Streets, by Piri Thomas Best Short Stories ofNegro Writers, ed. by Langston Hughes Go Ask Alice, anonymous A Hero Ain't Nothin' but a Sandwich, by Alice Childress Soul on Ice, by Eldridge Cleaver A Reader for Writers, ed. by Jerome Archer The Fixer, by Bernard Malamud. The members of the board concluded that it was their duty and ethical obligation to protect students from moral danger as surely as from physical and medical dangers.2 Accordingly, the board ordered school officials to remove the books from school libraries and from the curriculum.3 Upholding the board's action, and stating that federal courts should not intervene in the daily operations of school systems, the district court granted administrators broad discretionary authority regarding educational policy.4 It concluded that removing the books did not constitute "viewpoint discrimination," proscribed by the First Amendment. While questioning the wisdom of the board's actions , the court concluded that they did not constitute a sharp and direct infringement of any First Amendment right.5 The Second Circuit Court of Appeals reversed, with a three-judge panel issuing three separate opinions.6 Delivering the opinion for the court, Judge Sifton found the board's criteria to be impermissibly broad and vague.? AconcurringJudge Newman found the actions to constitute impermissible viewpoint discrimination.8 A dissenting 132 Chapter Seven Judge Mansfield saw the actions as reasonable and constitutionally permissible.9 In a plurality opinion authored by Justice Brennan, the United States Supreme Court affirmed.10 The key question addressed: Does the First Amendment impose limitations upon the authority of a local school board to remove books from high school and junior high school libraries? The plurality noted that the issues raised were distinct from textbook, curricular issues in which school officials presumptively enjoy broad discretionary authority.H Furthermore, Justice Brennan stressed the special characteristics of a school library . For example, he noted that they embody "voluntary inquiry" as opposed to the mandatory character of classroom instruction. Thus, the plurality concluded that the inculcative function does not justify granting broad discretionary authority to school officials who seek to remove books from library shelves.12 The Court sharply distinguished between the removal of a book from the library and its initial acquisition. Removing books directly and sharply implicated the constitutional rights of students, for the First Amendment not only serves to foster individual self-expression but also to afford public access to discussion, debate, and the dissemination of information and ideas.13 While acknowledging the importance of the inculcative function, the Court nonetheless declared that the First Amendment limits the discretionary authority of school officials. More precisely, the plurality stated that the First Amendment entails a corollary right to receive ideas and information. This right to receive prepares students to participate in our pluralistic, often contentious society.14 Regarding school libraries...