Board of Education, Island Trees Union Free School District No. 26 v. Pico by Pico

PETITIONER:Board of Education, Island Trees Union Free School District No. 26
RESPONDENT:Pico by Pico
LOCATION:Island Trees School District

DOCKET NO.: 80-2043
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 457 US 853 (1982)
ARGUED: Mar 02, 1982
DECIDED: Jun 25, 1982

ADVOCATES:
Alan H. Levine – Argued the cause for the respondents
George W. Lipp, Jr. – on behalf of the Petitioners

Facts of the case

The Island Trees Union Free School District’s Board of Education (the “Board”), acting contrary to the recommendations of a committee of parents and school staff, ordered that certain books be removed from its district’s junior high and high school libraries. In support of its actions, the Board said such books were: “anti-American, anti-Christian, anti-Semitic, and just plain filthy.” Acting through his friend Francis Pico, and on behalf of several other students, Steven Pico brought suit in federal district court challenging the Board’s decision to remove the books. The Board won; the U.S. Court of Appeals for the Second Circuit reversed. The Board petitioned the U.S. Supreme Court, which granted certiorari.

Question

Did the Board of Education’s decision to ban certain books from its junior high and high school libraries, based on their content, violate the First Amendment’s freedom of speech protections?

Warren E. Burger:

We will hear argument next in Board of Education against Pico and others.

Mr. Lipp, you may proceed whenever you are ready.

George W. Lipp, Jr.:

Mr. Chief Justice, and may it please the Court, this case is here on certiorari from the Second Circuit, where a three-judge panel rendered a plurality decision containing a vigorous dissent, with the court afterwards split five to five on en banc consideration.

Although this case involves the guarantee of freedom of expression under the First Amendment of the Constitution, it does not involve the utterance of either pure or symbolic speech by any of the plaintiff Respondents in any manner.

It involves the alleged right of five public school students to receive the contents of nine books removed from the Island Trees Public School libraries and curriculum six years ago by the Petitioner school board.

The books’ contents have been described by Judge Mansfield, dissenting in the court below, as containing, with one exception, and I quote,

“indecent matter, vulgarities, profanities, explicit descriptions of sexual relations, some perverted, or disparaging remarks about blacks, Jews, or Christ. “

In your view, does it make any difference what is in the books?

George W. Lipp, Jr.:

I think that it makes very much difference what is in–

Suppose they barred the St. James version of the New Testament, and the Constitution of the United States, and the Declaration of Independence?

George W. Lipp, Jr.:

–It makes a difference, Mr. Chief Justice, what is in them, but I do think they must be taken as a whole, and each board member did read the full volumes that were involved, but it was these alleged profane, vulgar, indecent materials that caused their initial concern, and I am assuming caused the final action from plaintiff.

I am aware, Mr. Chief Justice, that there are many other books that do contain in varying degrees some vulgarities.

Mr. Lipp, perhaps I should ask your opposition this one, but are any of these named plaintiffs still in school?

George W. Lipp, Jr.:

One of them in still in school, Mr. Justice Blackmun, until this June, and will assumedly graduate in June.

There is a potential question of mootness.

Could I ask, just on the facts, did the action taken just remove the books from the library, or did it forbid their use in class, or as outside reading?

Suppose some of these books were assigned as outside reading, and the children were told, you can get it in the public library?

George W. Lipp, Jr.:

The resolution of the Board of Education, if I am not mistaken, was worded so that the books were to be removed from the curriculum and from the libraries.

I see, okay.

George W. Lipp, Jr.:

The issue of a teacher assigning that book for outside reading never arose.

There has been agreement by means of a 9-G statement that there has never been any threat of or discipline of any teacher or staff member with respect to these actions, nor would there be.

What were the ages of the five plaintiffs at the time the books were removed?

George W. Lipp, Jr.:

Mr. Justice Powell, the oldest was, if I am not mistaken, a senior at the time, and the plaintiffs were each year down from that, so I am assuming roughly 17, 16, 15, 14, and 13.

And the 13 and 14 were junior high school students?

George W. Lipp, Jr.:

They were, Mr. Justice Powell.

Did the same library serve both junior and senior high schools?

George W. Lipp, Jr.:

It did not, Mr. Justice.

There were separate libraries?

George W. Lipp, Jr.:

There were.

And all of these books were in the senior high school library?

George W. Lipp, Jr.:

If I am not mistaken, there were some of these books in the junior high school libraries also.

Would the record show?

George W. Lipp, Jr.:

It would show that, Mr. Justice.

How are the members of the school board… how do they acquire their positions as members?

George W. Lipp, Jr.:

They are… there are seven members on this school board.

It is a New York State school board.

They are… Two are elected each three years.

They are three-year terms that they serve.

At one time three are elected.

I would state to the Court, too, whether it is of any import, that five of the seven members are still on that board six years after the events complained of.

The Respondents have alleged merely that the school board used its own social, moral, and political values, and did not utilize educational criteria in arriving at their decisions with regard to the removal of these books.

The Respondents have stated that the board is promoting a favored set of values.

It most certainly and assuredly is.

The transmission of the moral, social, and political values of that community to the students in that school board’s charge is one of their primary functions.

It is a responsibility and duty of that school board.

The doctrine of content neutrality flies in the face of this basic mission, which I feel is a mission of the nation’s 16,000 school districts.

They are pluralistic school systems.

They are diverse.

They are very different, vastly different, each from the other, some naturally more like others, but they are very, very much pluralistic.

A true pall of orthodoxy will settle upon the nation’s school districts if they are not permitted to set themselves apart and be distinctive with regard to value emphasis by means of different curricular choices.

This ability to tailor local programs to local needs is healthy, and if it involves favoring certain values over others, it should not require the intercession of the federal judiciary, which has been occurring with increasing frequency, in part because of the tremendous conflict among the circuits of the nation.

Mr. Justice Powell has seen the importance of this and stated, and I quote, that

“no area of social concern stands to profit more from a multiplicity of viewpoints and from a diversity of approaches than does public education. “

Although this prescriptive model of public education, this transmission of community values that I have referred to, is at the foundation of our arguments as contrasted with the marketplace of ideas model, which is one that holds forth in the nation’s universities and colleges and is quite distinct–

Suppose you had a book, counsel, that had been the subject of criminal proceedings, and conviction of someone in connection with that book had been sustained, a criminal conviction.

Would you say that that book comes under this broad authority you suggest?

George W. Lipp, Jr.:

–This broad authority to place on a shelf resting or vested in a school district.

Even though–

George W. Lipp, Jr.:

Even though it is–

–the publisher has been… even though it has been found to be criminally pornographic, obscene?

George W. Lipp, Jr.:

–I would say that a school board would be subject to the federal and state laws with regard to obscenity, and although they might have the power, they certainly would be totally irrational and would subject themselves to criminal penalties, but do they have the power?

I would think that they might have the power, Mr. Justice.

The power to put it in or to take it out, which?

George W. Lipp, Jr.:

I do not find any distinction whatsoever with regard to the power to either put in or to take out.

There is, I know, in a number of the circuit court rules a concept of tenure once a book is on a library shelf.

I posit that they have equal power to either select curriculum materials or to remove curriculum materials.

Yes.

Mr. Lipp, would your view be that at some point a particular decision by a board which, if it were made to remove from student exposure all references in the library to a particular ideology, would be subject to examination in the federal courts?

Is there some place where you would draw the line?

George W. Lipp, Jr.:

Justice O’Connor, I most certainly am not asserting an absolute right, and there are a number of places where the line should be drawn.

Well, would you articulate those, then, from your point of view?

George W. Lipp, Jr.:

I will articulate them as best I can.

One would be where there is a comprehensive and obvious attempt to sanitize a whole body of thought, a whole doctrine of thought.

The Epperson case referred to that measure, in addition to referring to a sharp and direct implication with constitutional values, an attempt to establish a rigid and exclusive indoctrination, and exclusive is important.

In this instance, we are dealing with nine books out of thousands and thousands in this school’s libraries.

An attempt–

Would you say, Mr. Lipp, that under… just to get an example.

I was interested in the same question Justice O’Connor asked.

Would you say that it would be appropriate to remove all books in the library that contained any disparaging remarks about blacks or Jews?

George W. Lipp, Jr.:

–Absolutely not.

I don’t think so.

And I think it is obvious from the record that that is not the attempt.

I don’t think that you could remove all books that pertain to a particular religion, to a particular political party.

Well, would there be any review–

George W. Lipp, Jr.:

You cannot favor–

–Supposing they just removed one book.

Would there be ever any federal review of removal of one book?

George W. Lipp, Jr.:

–I think if that possibly were the only book, Mr. Justice Stevens, in the library pertaining to a substantive ideology, you might have some constitutional concern.

Well, supposing the one book you removed is removed because it has disparaging remarks about Jews and blacks in it.

George W. Lipp, Jr.:

Then you are into the possibility of mixed motivation, which the Mount Healthy case addressed, and it is possible that if there were–

Would you speak up, please, sir?

It is very hard to hear you when you are away from the microphone.

George W. Lipp, Jr.:

–Oh, I am sorry.

I was–

Please stay near the center of the two microphones.

George W. Lipp, Jr.:

–All right.

I was responding to Justice Stevens–

Yes.

George W. Lipp, Jr.:

–with regard to what I felt was the question concerning the possibility of mixed motivation, where if there were disparaging remarks in this book concerning blacks, Jews, or whomever, whether that would be a valid reason for removing it, even though it were the only book, Mr. Justice, that contained a certain ideology, was this the–

Well, the reason I ask the question is, you started your argument by quoting from Judge Mansfield–

George W. Lipp, Jr.:

–Yes.

–who pointed out that all the books but one were either vulgar or contained disparaging remarks about blacks, Jews, or Christ, and I thought, well, let’s just… it is a summary judgment case.

Let’s just concentrate on one book that meets that standard.

Is there any federal review of the board’s decision to do that?

George W. Lipp, Jr.:

If it made that standard, I think a school board would certainly have that right, because it is not banning an ideology, it is not banning a doctrine of thought.

It is not–

Well, would there ever be any federal basis for reviewing a board’s decision to remove one book on the ground that Judge Mansfield stated, and if so, what would the federal standard of review be?

George W. Lipp, Jr.:

–I would hope that there would not be, at least in the face of a complaint and a 9-G statement similar to that in this case, because what you are assuming obviously then is the next step, being a trial.

There are possibly circumstances where that would be justiciable and where it would raise a constitutional issue, but Justice… Judge Mansfield did not state that any one book had all of those elements in them.

I have read the books, and the elements referred to by Justice… Judge Mansfield had varying of those things that he was disparaged about, but no one book had a combination of disparaging remarks about blacks, Jews, and Christ.

One did refer to Christ disparagingly.

One or two referred to blacks disparagingly, and so forth, and there were obscenities and profanities throughout all.

So, there was a mixed bag with regard to these volumes.

I thought Judge Mansfield said there were… he didn’t rely on vulgarity for one of the books.

George W. Lipp, Jr.:

He said, with one exception, and that exception is one that contained A Modest Proposal, by Jonathan Swift, that the board felt in bad taste, and this board is a seven-man board.

What I am really trying to find out is, what is the standard that you ask the Court to adopt in deciding whether there is federal review of this kind of decision?

George W. Lipp, Jr.:

I would ask the Court first to hold that the mere allegation that the board or any board followed its own social, moral, and political values in making curricular decisions without further would not be justiciable.

I would also add that the rule that probably should be followed, aside from the balancing of conflicting interests, and I certainly admit that there are many important interests, but they are conflicting in this case, would be that of reasonably related to a legitimate state function.

Certainly, I don’t think you need to prove a compelling state interest.

We are not dealing here with a public forum.

George W. Lipp, Jr.:

We are not dealing here with disciplinary actions against anyone as a result, say, of teaching a proscribed volume.

We are dealing with a very, very unique environment, that of the public school.

Did I hear you to say political values?

If the board chose to remove books containing favorable references to Republicans because it was a good Democratic board, we should not let that go on to be examined?

George W. Lipp, Jr.:

No, Justice O’Connor.

The complaint referred to moral, social, and political values, and failure to follow educational criteria.

My position is initially that an examination of the record, and if the Justices choose, the books themselves, will indicate that there is absolutely no political motivation.

However, political in its good sense is not a prohibited action.

Politics is the study of government.

In the dictionary, the third definition of the word “political” is one that is pejorative, but certainly the mere fact that a… schools are instruments of political socialization for the students in them, so the mere existence or the mere allegation of the word “political” does not taint this action.

Mr. Lipp, how are books normally selected for the library in this school district?

George W. Lipp, Jr.:

The normal selection, Justice Powell, at least that with which I am familiar, and I represent more than one school district, is basically to permit the professional staff from lists submitted by publishers and professional journals to make these selections.

This is the customary way.

But I would immediately remind Mr. Justice Powell of the fact that in the Chelsey case, which is a lower court case, but in the Chelsey case, a federal judge found fit to restore what I do think most of the Court, if not all of the Court, will agree was a scurrilous vulgar poem to the school shelves, and in that case the librarian, who selected from 1,000 paperbacks the paperback containing this poem, had not even read the poem.

So, I don’t want you to endow faulty selection processes with constitutional protection.

But normally the school board would not have the time or the opportunity to review every book that goes into the library.

George W. Lipp, Jr.:

Normally, it does… It does not.

It does select textbooks, and most textbooks–

Right.

That is a different matter.

George W. Lipp, Jr.:

–Most textbooks–

That is required by law.

George W. Lipp, Jr.:

–Yes, but most textbooks also are in the library, and I know that this board does very carefully select textbooks.

It does not, has not in the past selected library books.

How many books are in this library?

George W. Lipp, Jr.:

I would say 7,000, give or take 1,000.

Would this board have authority to simply say, we will have no library at all in the school, just abolish the library?

George W. Lipp, Jr.:

The Chelsey case to which I just referred to, oddly enough, the Justice who restored the poem to the shelves did state that a district or a school district had the power to decide there is no library whatsoever.

In New York State–

What happens to the New York law?

George W. Lipp, Jr.:

–In New York State, of course, we must have a library.

If I am not mistaken, it is in the appendix to the brief.

It requires at least 1,000 volumes in each of the elementary and secondary school libraries.

We would not have that power in New York.

Nor would we assert it if we did have it.

Mr. Lipp, getting back to the standard which the First and Fourteenth Amendments impose on the board in a situation like this, I find in Judge Newman’s concurring opinion in the court of appeals some suggestion that precisely the same objective acts on the part of the board could be permissible or impermissible depending on the motive with which the board did them, and it struck me that test certainly has been applied in discrimination cases under the Fourteenth Amendment, but I haven’t seen it applied in First Amendment cases before.

George W. Lipp, Jr.:

I–

What position do you take on that?

George W. Lipp, Jr.:

–Mr. Justice Rehnquist, I have not seen it applied in book banning cases, of which there are now a number.

Motivation may have some bearing.

Certainly if the motivation again is to ban a theory or doctrine of thought, the motivation is to assert a rigid and exclusive indoctrination with regard to all areas of thought.

Do you find any authority supporting the proposition that something done with a good motive is all right but something done with a bad motive is not all right, if it is precisely the same thing that is done, in our First Amendment cases.

George W. Lipp, Jr.:

I do not know of anything supporting that proposition.

I also would add that it is my understanding or my experience that motivation is one of the most terribly difficult things to establish in law, and if all that is needed to compel a full-blown trial is merely an allegation of impure motivation, the federal courts are going to be inundated with just the very type of situation that I think the doctrine of judicial restraint and local control requires that we make every attempt to avoid, especially in the school environment.

I think Justice Newman… Judge Newman’s concurring opinion in the plurality is one that frightened me greatly, both with respect to the motivation situation and his suggestion that the trial court should look prospectively to see whether possibly there had been a suppression of ideas as a result of the action, even though apparently there was no intent to suppress.

That was a frightening concept, and I might remind the Court, with limited time, that there absolutely is no attempt to suppress ideas, and I am not making that statement from my own personal knowledge.

I am making that statement from the record.

There was a 9-G statement executed by the parties under the local rule in the Second Circuit that states, for all practical purposes, that there is no attempt to suppress records.

The 9-G statement said–

Would you refer us to a page in a book?

George W. Lipp, Jr.:

–Yes, I would.

There are four 9-G statements in the appendix, Justice O’Connor.

The latter, plaintiffs’ 9-G statement is at Page 142 of the appendix, and the statement to which I am referring is that, quote, and it is Paragraph 12,

“No teacher has been instructed not to discuss the books which were removed or to refrain from discussion or comment upon the ideas and positions they represent. “

And yet starting with subsequent, immediately subsequent to the decision of the circuit court, all I have been seeing in the briefs opposing my position is that we have suppressed ideas and we have suppressed points of view.

That was not even alleged in the complaint, and it has been agreed, and also in the other plaintiffs’ 9-G statement… it was worded somewhat differently… and that is at Page 128 of the joint appendix, there has been no suppression of ideas, and the record supports that.

I must say, in response to Justice Rehnquist, you indicate motive is entirely irrelevant.

Is that your view?

The motive for the removal?

The federal judge’s job is to go ahead and read the books and either agree or disagree?

Is that it?

George W. Lipp, Jr.:

This is what I certainly hope is not the federal court’s job–

Well, so do I.

George W. Lipp, Jr.:

–to read these volumes, and I think it is sad that Judge Mansfield–

But what is a federal judge to do when a complaint of this kind is made?

What are the issues that have to be faced?

George W. Lipp, Jr.:

–I think a federal judge is to attempt to ascertain under the Epperson doctrine whether there has been a sharp and direct conflict with constitutional values alleged.

I think he must ascertain from the face of the documents before the Court whether there has been a rigid and exclusive attempt at indoctrination, an allegation of that, or whether there has been an allegation of a comprehensive plan to ban the teaching of an ideology or a theory or a doctrine, but not a mere allegation that a board used its own moral, political, and social values.

This is their role, and if this Court finds that a full-blown trial is required as a result–

What if this complaint had been written this way, and said, well, we allege that the board removed a book that had some disparaging comments about blacks in it and was otherwise a very good book, and we think we have a right to have that book in the library.

That would be insufficient, I guess.

George W. Lipp, Jr.:

–I certainly think that would be insufficient, Mr. Justice–

Supposing it said, the board removed all books which contained any criticism of black people of any kind.

Would that be analogous?

George W. Lipp, Jr.:

–This becomes an attempt at banning an idea, the idea that blacks are fine people, and you could have a difficulty there, but you must also remember that we are… well, we are not only dealing with the possibility of religion or the possibility of creed, or with profanity.

We are dealing with books that might involve violence.

We are dealing with something such as A Modest Proposal, which this board, I feel, whether its wisdom… whether it was wise or not, and that is not for this Court to address, the wisdom of their actions, was in fact–

Well, has the board given us any… did the board act on the basis of any standards or any indication of just what rules it thought it was applying?

George W. Lipp, Jr.:

–This board did submit the issue to a committee for recommendation and–

But then they almost entirely ignored the committee’s recommendation.

George W. Lipp, Jr.:

–No, they did not almost entirely ignore, but again, it is in the record, Mr. Justice.

Well, pretty nearly.

George W. Lipp, Jr.:

They restored two of them.

The committee was split seriously, and they did give that committee certain guidelines.

Those guidelines were guidelines–

But did they follow any guidelines?

That is my question.

They gave the committee an assignment.

The committee came back.

And then they just went ahead and–

George W. Lipp, Jr.:

–Well, the guidelines were not–

–they could have done precisely the same thing without the committee.

George W. Lipp, Jr.:

–The guidelines were not extensive guidelines, because the State of New York did not even have guidelines at that time.

No, my question is, did the board act on the basis of any guidelines?

They gave guidelines to the committee, which presumably the committee followed, but then they did not follow the committee.

George W. Lipp, Jr.:

There is nothing in the record to indicate precisely what guidelines the board followed.

Well, why don’t we talk about what the district court thought, found, what basis they… didn’t the district court say that the books were banned because they contained vulgarity?

George W. Lipp, Jr.:

Yes.

And wasn’t that the–

George W. Lipp, Jr.:

Somewhat similar to Judge Mansfield.

–Wasn’t that his view of the record as to the reason?

George W. Lipp, Jr.:

Yes, it was.

As to the standard they used for banning these books?

George W. Lipp, Jr.:

It was In fact, he found that they may have been unwise, but in effect he used Voltaire’s–

Well, yes, but that was the standard he found they applied.

George W. Lipp, Jr.:

–Yes.

That they banned vulgar books.

George W. Lipp, Jr.:

Yes.

Is that what he found?

George W. Lipp, Jr.:

Yes, I think it is.

And did the court of appeals differ with that, say that, well, there should be a trial because we don’t agree with the district judge that–

George W. Lipp, Jr.:

The judge writing the plurality opinion in the court of appeals said there should be an investigation into the suppression of ideas, Judge Newman concurring.

–Well, that is just differing with the district judge.

George W. Lipp, Jr.:

Yes, it is.

And Judge Mansfield in a very vigorous: dissent found that the board acted admirably and responsibly.

With regard to the district judge, did the district judge hear any witnesses?

George W. Lipp, Jr.:

No, he did not.

He had a motion for summary judgment before him, to which I appended every document that I could find that I thought relevant.

The respondents here chose not to oppose any of the affidavit materials or any of the evidentiary materials, and that is what the record is before the court–

So he thought it was undisputed that they ban books on the… for vulgarity.

George W. Lipp, Jr.:

–Oh, absolutely.

There hasn’t been any comment about political motivation or–

Well, the district… the court of appeals thought there should be a trial on it.

George W. Lipp, Jr.:

–Until then.

But you can’t point to any standard that the school board had?

George W. Lipp, Jr.:

The record does not show that the board had regulations, which the circuit court seems to feel they should have had, because none were required.

I didn’t say regulations.

I said standards.

George W. Lipp, Jr.:

The standards, and I think this is an assumption, because it is not contained in the record, Mr. Justice Marshall, are the same that pertain to the committee that they appointed, because this was from their negotiations contract, and applied to a situation where a parent objected.

But isn’t it normal to have standards to govern?

George W. Lipp, Jr.:

At that time, six years ago, Justice Marshall, this was not a common occurrence.

I certainly, once this case is completed, am going to recommend that guidelines be adopted.

Well, isn’t it normal to say that we took this action because of such and such a violation of such and such a standard?

George W. Lipp, Jr.:

I don’t think so, because you are dealing, Justice Marshall, with so many facets.

You are dealing with such imponderables as morals, social values, ethics, that to standardize them, to regulate is going to be an unmanageable task.

How can you regulate without standards?

George W. Lipp, Jr.:

You can follow the rule of minimal rationality which one writer has suggested, or the rule of rationality, and an examination of the record will show this board to have been rational.

It couldn’t be just vulgarity, because I have a sneaking suspicion that once or twice during a year there is some vulgarity in the schoolyard there.

0 [Generallaughter.]

George W. Lipp, Jr.:

There… Your Honor is in error, but only with regard to the number of times.

This may be the case.

Yes, I know.

George W. Lipp, Jr.:

But they do not have to put their condemnation, their stamp of approval upon it, nor would it be permitted in the classroom, and a disciplinary action against these students would be constitutionally permissible for the use of that type of language.

Do you concede that when a school board puts a book in its library, it puts a stamp of approval on that book?

George W. Lipp, Jr.:

I say that there is some imprimatur.

It wants the students to read everything they can, good and bad?

George W. Lipp, Jr.:

Good and bad with regard to style, with regard to content, but not with regard–

Or good and bad with regard to the standards which, you don’t have.

George W. Lipp, Jr.:

–Well, I don’t think with regard to profanity and indecency, Mr. Justice.

I am reserving time–

Mr. Lipp?

George W. Lipp, Jr.:

–Yes, Justice O’Connor.

Is it your position that a school board could remove a book from the library solely on the grounds that it was offensive to a particular religion?

George W. Lipp, Jr.:

I would think that would be permissible, if there was no attempt to favor one religion over another.

Certainly I feel that that would be permissible.

Within the establishment clause?

George W. Lipp, Jr.:

That… well, that is what I stated.

That is the exception that I made.

If there is no indication of an attempt to establish a religion, in other words, to favor one over another, to inculcate in a particular religion.

That would make it a different situation.

Thank you, Mr. Chief Justice.

Warren E. Burger:

Mr. Levine.

Alan H. Levine:

Mr. Chief Justice, and may it please the Court, let me help to focus on where the parties disagree by first saying a few things about which we do agree.

Schools, of course, do transmit values.

Local school boards may, of course, give particular regard for the values of the local community that they serve.

What we say here is that they may not ignore their obligation to observe and respect a diversity of values.

Let me put to you in that connection the question I put to your friend.

Suppose that a particular look is involved which has already been found to be in violation of the criminal law as obscene, pornographic.

Could that be eliminated from the library?

Alan H. Levine:

Without question, Your Honor.

Why is the judgment of the jury in that case determinative other than theoretically it expresses the community’s standard?

Is that your theory?

Alan H. Levine:

The judgment of a jury is, first of all, a judgment that a book has fit into a very narrow exception to First Amendment protection, the obscenity standard.

The exception to First Amendent protection asserted by the defendants here is a very broad one.

They assert the power to ban books that give offense.

That doesn’t resemble the obscenity standard at all.

If a school… under New York law, if a school board took on the responsibility which it has been suggested they haven’t the time they do it, but suppose they did take the responsibility and said, here are 2,000 books that should be in the library, and no books are to be added except if they are cleared with the school board.

Could they lawfully do that under New York law?

Alan H. Levine:

I believe under New York law, and certainly there would be no constitutional exception to that process.

This isn’t a case about the constitutional right of a particular group of people to make that decision.

Alan H. Levine:

New York law gives the ultimate authority to the school boards, and if they had the time and the inclination, there is nothing to prevent them from doing that.

Suppose it were agreed that the school board decided to take off the shelves all books that they thought were vulgar, and that there is an agreement that, yes, these books are vulgar by anybody’s standards.

Your position is, I take it, that those books could not be removed consistent with the First Amendment.

Alan H. Levine:

The problem I have with your question, Your Honor, is that it is vulgar by everybody’s standard.

Now, I assume you mean some standard short of obscenity, since in response to the Chief Justice’s question–

Yes, it is short of obscenity, but let’s just say that it is full of words that most people would think are vulgar words.

Alan H. Levine:

–Well–

It may be that some people wouldn’t think they are vulgar, but most people would, but let’s just… isn’t your position, though, that just vulgarity is not subject to being banned by the–

Alan H. Levine:

–Just random instances of vulgarity in books such as these is not a constitutional basis for permanently proscribing a book from a school district.

–Well, I will put it to you this way.

Your position is that none of these books that are involved here could have been removed for “vulgarity”.

Alan H. Levine:

Absolutely.

And let me make–

Could you articulate the theory of your First Amendment claim?

I take it it is the students’ either freedom of speech or freedom of the press, which is the language used by the First Amendment, which is being infringed.

Now, could you explain how that infringes it?

Alan H. Levine:

–I assume you are asking a different question from Justice White’s, and that is simply what is the First Amendment right at stake here.

Yes.

Well, that was the next question, when you said yes.

0 [Generallaughter.]

Sorry to have interrupted you.

That’s all right.

Alan H. Levine:

Well, the right has been described in some courts and in some legal commentators as the right to receive information.

We have not asserted that right.

We think the right to read a book is so clearly inherent in First Amendment analysis that even though most book cases have been brought by book sellers, or book publishers, surely if the state deprived the citizenry of reading a book, the citizenry would have a right… a First Amendment right to protest that action.

Within the school context, of course, the Court has historically talked about the right of academic freedom, and even though those cases arise often with teachers, what the interest is that is underlying those academic freedom cases is an interest that students be exposed to diverse ideas, and it is that diversity, that threat of orthodoxy which is really at issue here.

There are no teachers parties to this case.

Alan H. Levine:

There are no teachers who are parties to this case.

What case from this Court do you think comes closest to supporting your position that the students are denied their First Amendment rights if books are taken off the shelf of a school library by the school board?

Alan H. Levine:

I think no case… this is the first time, of course, the issue is before the Court.

Alan H. Levine:

The lower courts have gone off in several different directions.

In this case, the analysis proceeds, we think, from a line of cases from Meyer versus Nebraska through West Virginia versus Barnette, Keyishian versus Board of Regents, and Tinker, all of which are concerned about the limits of a school board’s power to indoctrinate.

They recognize that that is a legitimate concern.

We concede that school boards may well give special regard to the values of a local community, but there are limits on that process.

Well, but this… this is quite different from Tinker, isn’t it–

Alan H. Levine:

Absolutely.

–where a form of expression was expressly prohibited?

I don’t understand any expression on the parts of the students has been prohibited here.

Alan H. Levine:

No, but I… I don’t think the Court, but for the special circumstance of this taking place in a school community, would have any question of Steven Pico’s right to complain about the state prohibiting a book store from selling books to certain people.

It is a–

Oh, I think that is true.

Alan H. Levine:

–It is a right to receive information, though I don’t think the analysis was just created with Virginia Board of Pharmacies.

I think it is historically assumed that the right to read a book is protected by the First Amendment.

But I take it Steven Pico can go to any number of stores on Long Island and get the books he wants.

Alan H. Levine:

It is possible.

The state of New York hasn’t prevented him from doing that.

Alan H. Levine:

It’s possible, but an agency of the state of New York has said that he cannot have access to that book in that school.

Well, your theory would certainly cover… mean, then, that a school board, if it participated, or even teachers, whoever is choosing the books that the school buys may not decide not to buy books because they are vulgar.

You must also say that.

Alan H. Levine:

Well, in response to your questions, I was going to get back to vulgarity, because it is the issue that the Court has focused on, and it is the cast in which the defendants prefer to put the case.

Well, it is also the cast the district court put it in.

Alan H. Levine:

Yes, but not the circuit court.

It is true it is the–

Well, I understand.

Alan H. Levine:

–it is the focus of Judge Mansfield’s dissent, but it is important to understand a couple of things, and why Judge Newman thought a trial–

Well, how about my question about acquisition of books?

Alan H. Levine:

–I don’t think–

Your theory would cover that, too.

Alan H. Levine:

–I do not think that if a school board said, we are not going to buy The Fixer, a Pulitzer Prize winner, National Book Award winner, because it contains, according to this record, eight dirty words out of 200 some odd pages, I don’t think that is a constitutionally defensible decision.

So you would say, yes, you would say that the board could not have decided constitutionally to ban any one of these books that is involved here, or decide not to buy any one of these books.

Alan H. Levine:

These books.

That’s correct.

There may be… there may be cases out there that are difficult in which the books are pervasively vulgar.

That is not these books, however.

Is it your position that there is a constitutional right to a particular book in a particular place?

Alan H. Levine:

Absolutely not, Your Honor.

And that is not the issue in the case, but here we go to Justice Rehnquist’s question of motivation before.

When can a book be removed?

When can it be substituted for another book?

Understand here these books were not removed because any other book was being substituted for them.

They got the names of these books from a list that they received at a conference.

They don’t know who authored the list.

They learned nothing about them except the exteriors, and then they removed them, but surely, at least for a book that is in the curriculum, and only one of these was, The Fixer, if they make the judgment, however quixotic, that Silas Marner is of better use in the English curriculum than The Fixer, they have absolutely no constitutional compulsion not to replace that book.

No constitutional principle interferes with that.

However, if they remove the book solely because it contains a passage that offends a particular group in the community, then the Constitution, then the First Amendment is concerned.

Now, what we have here about some of these books are explicitly political comments.

Cleaver’s Soul On Ice, the excerpts contain one passage of vulgarity out of the entire book.

But what else do the excerpts tell us?

That he is a Black Panther and considered a traitor to his country.

That is part of the reason that book was banned.

Mr. Levine, does your theory apply to textbooks as well as books in the library?

Alan H. Levine:

If you mean curricular books?

Yes.

Alan H. Levine:

In theory, yes, though the process would normally be very different, and therefore generally immune to constitutional scrutiny, because the process by which one book is chosen over another one will generally appear to be neutral.

There will not be suspect reasons.

Under state law, I suppose a state board of education gives the local boards the opportunity to select books within a group.

Or what is the procedure?

Alan H. Levine:

I–

I am talking now about textbooks.

Alan H. Levine:

–As far as I know, school districts are free to order whatever textbooks they want.

Alan H. Levine:

I don’t know if the procedure–

But if a pupil objected to a textbook or objected to one not being used as a textbook, I understand your theory would still be applicable.

Alan H. Levine:

–That’s right.

You are not asking me if New York law gives him any right.

No, no, New York law clearly does.

Alan H. Levine:

No, then.

No, I don’t think a student has a constitutional right not to read a book.

And what–

Alan H. Levine:

What–

–I beg your pardon.

Alan H. Levine:

–Our theory is simply that school boards don’t have the power to deprive a student of the right to read a book because–

Even… a school board has no right to determine which books shall be used in the various classes, if students object?

Alan H. Levine:

–If students object, I don’t think is the relevant factor.

What I do mean to say is that that process of selecting one textbook over another will rarely, if ever, raise constitutional questions, and that is no part of this case.

That is not the process that went on at all here.

Nine books were banned totally from the library and the school district.

We don’t have the more difficult case, and the more difficult case, as far as I know, has not arisen in the lower courts.

But if it did arise, would your theory apply to it?

Alan H. Levine:

In the abstract, if we found… if the record says that we will not use a book by Eldridge Cleaver as a textbook because he is a Black Panther and considered disloyal to our country, my theory would apply.

Would it apply to what teachers teach in the classroom?

Suppose you had a teacher who had the same view about that book that you have just described, and refused to teach it.

Alan H. Levine:

Well, then you get into teachers’ constitutional rights and what they can be compelled to do.

Is there a conflict between pupils’ rights and teachers’ rights?

And who would resolve that?

Alan H. Levine:

Unless a school board could make a determination that a teacher could forego teaching a book as a matter of conscience, if… I mean, it would be difficult to allow a teacher to refuse a book simply because she thought that Eldridge Cleaver was disloyal.

I don’t think that comment or that view is entitled to any deference by the state.

Teachers often prepare their own outlines.

Alan H. Levine:

They do.

And use those primarily rather than the approved textbooks.

Alan H. Levine:

I have no doubt of that, Your Honor.

If a pupil disagrees with the outline used by the teacher, I take it she would have standing or he would have standing.

Alan H. Levine:

I don’t think that a student has any constitutional right not to read a book that is assigned by a teacher.

I don’t think this case presents what might otherwise be–

I know this case doesn’t, but I am testing–

Alan H. Levine:

–The limits of our position.

–the reach of your theory.

Alan H. Levine:

I understand, Your Honor.

Yes.

It seems to me–

Alan H. Levine:

I–

–Do you have any limiting principle?

How far does your theory… or where does it end?

Alan H. Levine:

–Our position I do not think is very… a very extensive one.

We do not deny that Island Trees has the right to transmit its local community values through the schools, including through the book selection process.

That’s not what this case is about.

All we say is that there are some limits on what they can do in the name of education, in the name of their good taste, in the name of preserving members of the community from taking offense.

Mr. Levine, what are those limits?

That is what Justice Powell and I would both like to know.

Alan H. Levine:

I’m sorry.

I didn’t hear you.

You say there are some limits.

What are the limits?

Alan H. Levine:

On what a school board can do?

Yes.

I assume you would say they can remove obscene books from the library, if they are illegal.

I think you answered that.

But are there any other books that they may remove from the library?

I thought you indicated pervasively vulgar ones, you thought.

Alan H. Levine:

I have no standard in mind, Your Honor, and obviously those cases get us into First Amendment quicksand, but there may be, there may be such a case, such a book which would fall within that category.

The problem is that if we defer entirely to school boards by saying, if they label it vulgar, that is the end of the case–

But you have already conceded that the school board could say, here are 2,000 books, which would exclude every book that they thought was borderline pornographic, obscene, or vulgar.

I understood you to say they could–

Alan H. Levine:

–I do not concede for a moment that they could ban every book that contains a vulgar word.

–No, you… then we’ve got to clear it up.

I thought you, in response to my earlier question, had said, if the school board put 2,000 books that they wanted in the library, and it excluded all the books that are in question here, that they could do that.

Now you say they can’t do that?

Alan H. Levine:

No, they can’t.

There is no–

Who is going to pick–

Alan H. Levine:

–There is no–

–Who is going to pick the–

Alan H. Levine:

–I am sorry.

I was not clear, Your Honor.

There is no constitutional obligation to buy these particular nine books.

That is not our theory at all.

We are dealing with motive, and in First Amendment–

–Well, what standard must the librarian use in picking these books?

Alan H. Levine:

–I have no idea.

One assumes… it is not in the record.

One assumes that the librarian consulted various rating journals.

What is in the record is that every single one of these books is recommended for use in high school libraries.

Who prepares the rating journals?

Alan H. Levine:

Organizations like the Wilson Library Journal, the School Library Journal, organizations of librarians and educators.

You haven’t mentioned the Pacifica Foundation case.

Do you think that has anything to do with this case?

Alan H. Levine:

It is, like this case, a case that raises the question of vulgarity.

It is not a radio case, and the Court exhibited particular concern for the special quality of radios intruding themselves into homes.

The Court exhibited particular concern for young six-year-old children who might hear these broadcasts.

The Court exhibited concern for a monologue that was pervasively vulgar, and that is where the phrase comes from.

None of these books are pervasively vulgar.

Alan H. Levine:

They have random instances of bad language.

Now, we don’t have to go so far as the Court did in Cohen versus California to say that each of these phrases in these books is protected, as the Court did say in Cohen.

What we do say is that you can’t ban an antiwar book because it reports about Cohen’s case, even if the school board calls it vulgar.

But there is something else to be said about this case, and I don’t want the Court simply to focus on vulgarity, because there is in the record, and Judge Newman was concerned about the ideological concerns, what they said about Cleaver.

They said about Malcolm X, whose essay had appeared in A Reader for Writers, that he was a traitor to his country, and this book equated him with the Founding Fathers.

In post-litigation, we asked him which of these books was anti-American, because a press release had said that one of the books was anti-American, and their example was a book called A Hero Ain’t Nothing But A Sandwich, a book by Alice Childress, a National Children’s Book Award winner.

And they quoted a passage in which a black school teacher, Nigeria Green, says to her class that George Washington was a slaveholder, and she muses about the irony of him, a Founding Father, having been a slaveholder.

Well, Mr. Levine, supposing that these nine books had been acquired by the school district, say, in 1970 or 1971 as a representative collection of the kind of protest literature of the sixties.

I am not sure they would all fit in that category–

Alan H. Levine:

No, I don’t think so.

–but supposing they would, and they had been kept there for ten years, and then there was a series of books published about the history of early New York, and there was a shelf space problem, and the school board decided to get rid of this collection of the sixties because it was somewhat passe, and to expose the students to the history of early New York, since they couldn’t do both.

Now, there, there is no problem of motivation at all, but you are getting rid of precisely the same books.

Alan H. Levine:

That’s right.

Do you get a different result?

Alan H. Levine:

No, I do not.

Now to your question about motivation to Mr. Lipp, it of course does come into First Amendment analysis in the discharge situation.

Men and women can get discharged from jobs for legitimate and illegitimate reasons.

We don’t talk about tenure here.

That disparaging phrase has been used by some of the courts rejecting our principles.

We simply say that as in the discharge situation, there are permissible and impermissible reasons for substituting books.

Now, you are saying the reasons I gave you in the hypothetical are not permissible?

Alan H. Levine:

No, those are permissible.

They are permissible.

Alan H. Levine:

They surely are.

No one is making a judgment there that this book is being eliminated because somebody in our community, or a group, or even the majority in our community will be offended by certain passages in it.

Well, then let me ask you the same question I asked Mr. Lipp.

If the precise same objective acts depend for their constitutional validity on the motivation of the people who perform the acts, in one case they are bad and in the other case they are good, what support do you find in our First Amendment cases for the result depending on motivation?

Can you name one case?

Alan H. Levine:

Aside from the discharge cases, no, but I think what those cases tell us is that the same act may be constitutional and unconstitutional depending on the reasons.

You can fire Mr. Doyle in Mount Healthy because he did something that he is not supposed to do as a teacher, but you can’t fire him because he advocates a certain point of view.

Alan H. Levine:

You can–

But those are two different acts, really.

Alan H. Levine:

–They are two different acts, but in resolving that constitutional question, one does have to look at motive, and in substituting a book, say, like Silas Marner for A Hero Ain’t Nothing But A Sandwich, it is one thing if they say Silas Marner is a better written book and we are going to use that in our curriculum.

It is something else to say, we are not going to have A Hero Ain’t Nothing But A Sandwich in our curriculum because it says an unpleasant historical fact.

That the First Amendment will not permit.

Well, I take it then you would always… anybody who could draft a complaint halfway decently could always get to the jury.

Alan H. Levine:

I am not sure that is true, at least–

Well, but I mean, if it is motivation that is on the front burner, it is a… you are always going to survive a summary judgment motion.

Alan H. Levine:

–Well, there is a doctrine in 1983 law where courts do scrutinize whether or not allegations are made in good faith, and of course that is an advocate’s obligation under the rules.

Yes.

Alan H. Levine:

But you may not get… you may get up to summary judgment in any case by a well-drafted complaint, but I don’t think that imposes great burdens on the courts.

Well, you are going to–

Alan H. Levine:

This cause of action has existed for eleven years, and there are about a dozen cases around the lower courts.

–Well, I am just suggesting that if motivation is the pivotal factor, you are going to get to trial a lot more often than if it were some objective matter.

Alan H. Levine:

It is entirely possible, but I repeat that I don’t think that this is a cause of action that invites a flood of litigation any more than it has in the past, and I think if the courts abdicate, if the federal courts say that anything school boards say and do about books is beyond judicial review, that you leave people remediless for the assertion of very important rights.

Mr. Levine, do you think that elementary and high school students have First Amendment rights which are the same as those of adults?

Alan H. Levine:

I do not.

I don’t quarrel for a minute, even if I could, with the Court’s decision in Ginsberg, which says there are variable obscenity standards, and I don’t think our position here challenges that at all.

Well, are not then the First Amendment rights of elementary and high school students somewhat different, and don’t we have to–

Alan H. Levine:

They are.

–look to that pretty closely?

Alan H. Levine:

They are.

Important to say two things, Your Honor.

One, no elementary school children in this case.

We are talking about high school children.

Two–

I thought originally some of the plaintiffs came from seventh or eighth grade, which is not high school.

Alan H. Levine:

–Junior high school.

That’s correct.

Junior high school.

Alan H. Levine:

Though the only book in the junior high school library hear was A Reader for Writers, the one about which they said Malcolm X was a traitor to his country, and it is not alleged it had any vulgarity whatsoever.

Let me say finally on the issue of vulgarity that aside from all these very explicitly political references in the record which led Judge Newman to think that a trial was warranted, there is also the critical fact that this post-litigation concern for vulgarity is somewhat suspect.

If this is a dominant concern of this school board, one would assume–

Well, it wasn’t post-litigation if the district judge thought that that is what the school board turned its actions on.

Alan H. Levine:

–Well, he didn’t make–

That wasn’t very post-litigation.

Alan H. Levine:

–He didn’t make… with respect, Your Honor, he didn’t make a finding that that was their justification.

He didn’t separate out political from vulgar.

What he said was, all of this was objected to because it offended their community values, and they have the right to do that, but the point I was going to make is, if that is their concern pre or post-litigation, one would have assumed that at some point the school board would have gone back to the library and seen if there were any other books with this kind of language.

They had never done so before, and they have never done so since.

Well, I take it then in your… in litigation that you would contemplate the federal court would have to decide, well, why were these books really taken off the shelves, and if they found that, well, they were taken off because the school board thought they were vulgar, then you would have to decide, the federal court would have to say, well, were they vulgar enough to warrant taking them off the shelf?

Alan H. Levine:

I know that is an unappetizing undertaking.

I see–

Well, isn’t that… that is what you would contemplate?

Alan H. Levine:

–I don’t know that a… I don’t–

I am not saying you are wrong.

I just want to know what you–

Alan H. Levine:

–I don’t know that a school board… a federal court has to read all these books.

What we have in this record is a concern with eight words in a book like The Fixer, and that is not a constitutionally permissible basis.

–Well, the court would have to decide whether that book then is vulgar or not.

Alan H. Levine:

The court may have to try and elucidate some standards, but I think the court has to begin with saying that a half-dozen vulgar words in the course of a book is not the basis for banning it.

Well, what you are saying, or let’s put it this way.

Is what you are saying that is between the federal judge and the elected school board, the latter prevails in the judgment of this book?

Alan H. Levine:

In a conflict between a local school board and a federal judge with regard to the banning of books, a local school board must abide by constitutional standards as interpreted by the federal courts.

That is our position, Your Honor.

But the thing you haven’t told us as far as… I have been listening rather carefully to your argument.

I don’t really know what your standard is.

Why under your view, if the school board had appointed a committee, as they did here, and they said, find out if there is too much… read the book as a whole and consider its literary value, see if it has any relevance to course material, and they had two or three other guidelines in there.

Supposing the committee had come back, as they did, and they maybe wrote a full report on each book, and then the committee followed the recommendations, as they did not here, and removed three books and kept five, or six, or whatever the number is.

You would say that was still unconstitutional.

Is that correct?

And say that you can’t dispute their judgment.

Each one, any impartial observer, a teacher, a book expert would agree that they had faithfully followed the standards.

Alan H. Levine:

If they–

What constitutional right of whom has been violated?

Alan H. Levine:

–If they made those judgments on the basis of the kinds of criteria, educational suitability, assuming that was fleshed out in relevance to the community, that would be perfectly permissible.

That process goes on–

Well, but you have said to us every book here has a… that is not what you said earlier in your argument.

Alan H. Levine:

–That… I am sorry–

You said earlier that your clients have a constitutional right to have all the books retained, even those that were unanimously rejected by the committee and by the board.

Alan H. Levine:

–Depending on the reasons they give, Justice Stevens.

If these books–

Well, I am saying to you, supposing they gave the reasons that the committee followed the standards and applied those standards.

Alan H. Levine:

–Then we wouldn’t have this case.

My–

But would you have a constitutional objection to what they did?

Alan H. Levine:

–Absolutely not, Your Honor.

What I am saying is that if the committee–

Well, then, I don’t understand how you can now claim a constitutional right to have all the books restored to the shelves.

Alan H. Levine:

–Because of the reasons they gave for removing these books.

Because they considered the books solely on the basis of excerpts.

Mr. Lipp says before we agree that they must be considered as a whole.

There is not a shred of evidence in this record that any of these books were considered as a whole.

Well, they read the whole books, according to the affidavits.

Alan H. Levine:

They say they read the whole books, though–

Well, don’t we have to accept that as true?

You didn’t file any countervailing affidavits.

Alan H. Levine:

–No, we took that position, however, and there are depositions in this record, and indeed, the 9-G statement, the Southern… the Eastern District’s local rule in summary judgment cases says that some of these books were banned on the basis of isolated themes, even when the theme of the entire book was to the contrary.

Well, that doesn’t mean the person read only the isolated theme.

Alan H. Levine:

It is entirely possible, but it is clear that he made the judgment on the basis of the isolated passage.

Mr. Levine, let me pursue the subject you were discussing with Justice Stevens.

I have Page A-97, the district court’s opinion, A-97, top of the page, sort of the concluding statement by the district judge.

What he says is, the pleadings, affidavits, and so forth demonstrate that the nine books, and I am omitting a word or two, were removed because they were irrelevant, vulgar, immoral, and in bad taste, making them educationally unsuitable for the district’s junior and senior high school students.

Now, I understand, of course, that you don’t agree that they were educationally unsuitable.

My question is, is not it the primary function of a school board to determine what is educationally suitable, and let’s assume for the moment that you answer that in the negative.

Alan H. Levine:

No, I don’t.

Are you saying that federal courts are better qualified to answer that question that school boards?

Alan H. Levine:

I do not whatsoever.

I would like to think we are, but I know we aren’t.

Alan H. Levine:

No, and I don’t think the federal courts are better suited to do that, Your Honor.

Well, what do we do then?

Alan H. Levine:

What has happened… First of all we take issue with the district judge’s conclusion.

We did not concede that in summary judgment.

That is his reading of the record, and he draws those inferences, though Judge Newman was not at all willing to abide by those inferences.

Well, at least we have two judges one way and two the other, don’t we?

Alan H. Levine:

Well, we do have that, but there is simply no disputing what they say here about Cleaver and about Malcolm X and about George Washington being a slaveholder.

That is all in the record.

That is not about vulgarity.

But somebody has to make a decision as to what is educationally suitable.

Alan H. Levine:

I don’t think that a school board can cloak its political concerns in the mantle of educational suitability.

They may say that, and they may want the Court to believe that is what went on here, but they did in fact make some very explicit political judgments.

Well, on Page A-107, the court made an even narrower… drew an even narrower inference from the facts.

“The board has restricted access only to certain books which the board believed to be, in essence, vulgar. “

That was his assessment of what the board did.

That is Judge Pratt’s assessment.

That’s correct.

I… Like Judge–

–I know you disagree with that.

Alan H. Levine:

Well, the reason, Your Honor, is, there isn’t a claim that there is a single vulgar word in all of A Reader for Writers.

There is nothing said about A Reader for Writers that suggests vulgarity.

Of course, you say all of these books should go back on the shelves.

Alan H. Levine:

That’s correct.

Thank you, Your Honor.

Warren E. Burger:

Thank you, counsel.

Do you have anything further, Mr. Lipp?

George W. Lipp, Jr.:

Yes, I do, very briefly, Mr. Chief Justice.

I would like to lay to rest the allegations of political motivation.

I would like to do it by stating that I have read all of the books involved very recently.

I have read the one book that is allegedly to have referred to Malcolm X.

That was a different edition.

The board banned a book that had absolutely no reference to Malcolm X.

That was the book that contained A Modest Proposal.

With regard to A Hero Ain’t Nothing But A Sandwich, not–

On that book, Mr…. that book, did you refer… that one was not vulgar.

Is that correct?

George W. Lipp, Jr.:

–That is correct.

There is no vulgarity at all in that book?

George W. Lipp, Jr.:

Their feeling is that it was–

So the banning of that book cannot be justified on vulgarity grounds.

George W. Lipp, Jr.:

–That is correct.

They felt it was in bad taste.

Now, what is the ground for banning it?

Just bad taste?

George W. Lipp, Jr.:

Yes.

Now, supposing they took… would it be permissible for them to take every book out of the library they thought was in bad taste?

What does bad taste mean?

George W. Lipp, Jr.:

If they felt that that bad taste was related to educational suitability, I would think they would have that right, as long as they are not–

Could they take every book out of the library that contained the word “ain’t”?

0 [Generallaughter.]

George W. Lipp, Jr.:

–They would be very foolish, and if that were the sole… if that were the sole–

Well, the judge here says they were foolish.

George W. Lipp, Jr.:

–If that were the sole reason–

That is the sole reason.

They don’t want the children to form the bad habit of using the word “ain’t”.

I was taught that was a vulgar word.

0 [Generallaughter.]

George W. Lipp, Jr.:

–If that were the sole reason, Mr. Justice Stevens, I… I still question whether that would–

Well, I really want… this is a serious question.

I am not playing games.

George W. Lipp, Jr.:

–I realize that.

Would that be a sufficient reason to be a total answer to a constitutional objection?

George W. Lipp, Jr.:

I think it would, because it does not address a doctrine of thought, an ideology or favor a political party or religion, and so forth.

I want also to add that not only did the other book, A Hero Ain’t Nothing But A Sandwich, refer to George Washington in what the board felt was disparaging terms, it was laced with obscenities.

The political excerpts that Mr. Levine has said–

What if they barred the Declaration of Independence and the Constitution, which also recognize slavery?

George W. Lipp, Jr.:

–Well, the political motivation that Mr. Levine is saying “they” had was motivation of the Randolph New York State School District that had a list of excerpts with these comments, their own comments, sitting on a table at this conference that the board went to at the request of a regent of the state of New York.

I want to remind the Court that there are substantial limitations upon the requirement for content neutrality, among which are the Young against American Mini-Theaters case, where Mr. Justice Stevens wrote the majority decision.

We have, of course, the fact that juveniles do not have rights equal with adults.

You have many, many areas where there are erosions upon this so-called absolute right that it appears that Mr. Levine is claiming.

It is not absolute, especially in the area of public education.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.