Nevada Library Association

Nevada Library Association

Intellectual Freedom Handbook, 1999

The Big Issues in Pico v. Board of Education

(Board of Education, island Trees Union Free School District No. 26,
et al. v. Pico, By His Next Friend Pico, et al. 457 U.S. 853; 102 S. Ct. 2799)

Justice Burger, dissenting:

"Stripped to its essentials, the issue comes down to two important propositions: first, whether local schools are to be administered by elected school boards, or by federal judges and teenage pupils; and second, whether the values of morality, good taste, and relevance to education are valid reasons for school board decisions concerning the contents of a school library. In an attempt to place this case within the protection of the First Amendment, the plurality suggests a new 'right' that, when shorn of the plurality's rhetoric, allows this Court to impose its own views about what books must be made available to students.

"[The plurality] establish[es] the previously unheard of 'right' of access to particular books in the public school library. The apparent underlying basis of the...view seems to be that students have an enforceable 'right' to receive the information and ideas that are contained in...school library books...No such right, however, has previously been recognized...[t]he 'right to receive information and ideas'...does not carry with it the concomitant right to have those ideas affirmatively provided at a particular place by the government...In short, even assuming the desirability of the policy expressed by the plurality, there is not a hint in the First Amendment, or in any holding of this Court, of a 'right' to have the government provide continuing access to certain books.

"How are 'fundamental values' to be inculcated except by having school boards make content-based decisions about the appropriateness of retaining materials in the school library and curriculum...they may err, of course, and the voters may remove them. It is a startling erosion of the very idea of democratic government to have this Court arrogate to itself the power the plurality asserts today.

"The plurality also limits the new right by finding it applicable only to the removal of books once acquired. Yet if the First Amendment commands that certain books cannot be removed does it not equally require that the same books be acquired?"

Justice Rehnquist, dissenting:

"Justice Brennan would hold that the First Amendment gives high school and junior high school students a "right to receive ideas" in the school. This right is a curious entitlement. It exists only in the library of the school, and only if the idea previously has been acquired by the school in book form. It provides no protection against a school board's decision not to acquire a particular book, even though that decision denies access to ideas as fully as removal of the book from the library...

"It is the very existence of a right to receive information, in the junior high school and high school setting, which I find wholly unsupported by our past decisions and inconsistent with the necessarily selective process of elementary and secondary education...

"[T]he denial of access to ideas inhibits one's own acquisition of knowledge only when that denial is relatively complete. If the denied ideas are readily available from the same source in other accessible locations, the benefits to be gained from exposure to those ideas have not been foreclosed by the State. Our past decisions are thus unlike this case where the removed books are readily available to students and non students alike at the corner bookstore or the public library.

"As already mentioned, elementary and secondary schools are inculcative in nature. The libraries of such schools serve as supplements to this inculcative role. Unlike university or public libraries, elementary and secondary school libraries are not designed for freewheeling inquiry; they are tailored...to the teaching of basic skills and ideas...

"The final limitation placed by Justice Brennan upon his newly discovered right is a motive requirement: the First Amendment is violated only '[if] petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed' But bad motives and good motives alike deny access to the books removed. If Justice Brennan truly recognizes a constitutional right to receive information, it is difficult to see why the reason for the denial makes any difference.

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