The Supreme Court was asked yesterday to decide a difficult and delicate question: how much authority should school boards have to determine what students will be allowed to read in the school library?
The question put directly to the court, amid a nationwide wave of book-banning controversies, was whether the First Amendment's guarantee of free speech protects a student's "right to read."
In oral arguments, the court was asked to give federal judges the authority to override, on those constitutional grounds, the decisions of local schools about which books belong in school libraries. The other side asked the court to reserve these decisions almost exclusively to the school boards as a necessary part of a school board's mission to "transmit moral, political and social values" to students.
The case at issue yesterday came from Long Island, N.Y., but is similar in most respects to confrontations taking place in communities across the country.
The choices faced by the court--involving schools, children and morality--are the sort that have caused turmoil over "judicial activism" in the past and have fueled efforts to strip the federal courts of some of their independence.
Yesterday's case began in September, 1975, when three members of the Board of Education of the Island Trees Union Free School District returned from a conservative book-banning conference with a list of "objectionable" books. The list of nine books included "The Fixer" by Bernard Malamud, "Slaughterhouse Five" by Kurt Vonnegut, "The Naked Ape" by Desmond Morris, "Down These Mean Streets" by Piri Thomas, and "Soul on Ice" by Eldridge Cleaver.
The board members checked the card catalogs for the junior and senior high school libraries in the district and, with little further ado, had copies of the nine books removed. They later explained, and their lawyer restated yesterday, that the books contained indecent material, objectionable references to ethnic groups or "vulgarities."
A group of four students, assisted by the American Civil Liberties Union, sued the school board to have the books returned. School officials argued that students of this age have no right under the First Amendment to read particular books in a school library and therefore the students had no right to a federal court trial. A U.S. District Court agreed, but the 2nd U.S. Circuit Court of Appeals sided with the students, ordering a trial on whether the school board had tried to impose its own biases and political views on the students.
If the Supreme Court goes along with the 2nd Circuit, it would set up the possibility of federal court fights whenever school boards ban books.
If ever there was a situation requiring "judicial restraint," said school board lawyer George W. Lipp Jr., this is it. "The school board is most certainly and assuredly" promoting a certain set of "political, moral and social" values when it bans books, Lipp said.
"And that is one of its jobs. That is the mission of the nation's 16,000 school districts," he said, and it "should not be subject to the intervention of the U.S. judiciary."
Lipp said the only restrictions on a school board are that it cannot systematically or rigidly attempt to impose a set of ideas or an ideology on its students.
Alan H. Levine, attorney for Steven A. Pico and the other students, agreed that school boards "must transmit values . . . but they may not ignore their obligation to respect diversity of values."
The school board in this case, he said, had banned books simply because they "gave offense" or contained vulgarities. "That is not a constitutional basis" for censoring, he told the court.
"Explain how it infringes the First Amendment," said Justice William H. Rehnquist. "Can you name one case?"
"No," said Levine. "But I believe the right to read a book is clearly inherent in any interpretation" of the First Amendment's guarantee of free speech.
"Do you think students have the same First Amendment rights as adults?" Justice Sandra Day O'Connor asked later.
"No," said Levine. "Their rights are somewhat different."
"Is it not the primary function of school boards to determine what is educationally suitable?" said Justice Lewis F. Powell Jr., addressing the court's dilemma in this case. "Are you saying the federal courts are better qualified than school boards?"
"No," said Levine. "I just don't think that a school board can cloak its political beliefs in the mantle" of determining what is educationally suitable.
The questioning focused on what standards the courts could use to determine when a school board was acting constitutionally and when it was not. Levine said it was a question of a school board's "motivation."
"If all that is required is an allegation of impure motivation," Lipp said for the school board, "the courts are going to be inundated . . . ."
The case, Board of Education, Island Trees Union Free School District No. 26 vs. Steven A. Pico et al., should be decided by early July.