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?

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

Audio Transcription for Oral Argument - March 02, 1982 in Board of Education, Island Trees Union Free School District No. 26 v. Pico by Pico

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?