Board of Education v. Pico/Dissent Rehnquist

JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and JUSTICE POWELL join, dissenting.

Addressing only those aspects of the constitutional question which must be decided to determine whether or not the District Court was correct in granting summary judgment, I conclude that it was. I agree fully with the views expressed by THE CHIEF JUSTICE, and concur in his opinion. I disagree with JUSTICE BRENNAN's opinion because it is largely hypothetical in character, failing to take account of the facts as admitted by the parties pursuant to local rules of the District Court for the Eastern District of New York, and because it is analytically unsound and internally inconsistent. [p905]

I A
JUSTICE BRENNAN's opinion deals far more sparsely with the procedural posture of this case than it does with the constitutional issues which it conceives to arise under the First Amendment. It first launches into a confusing, discursive exegesis on these constitutional issues as applied to junior high school and high school libraries, ante at 863-872, and only thereafter does it discuss the state of the record before the Court. Ante at 872-875. Because the record facts should always establish the limits of the Court's constitutional analysis, and are particularly relevant in cases where the trial court has granted summary judgment, I think that JUSTICE BRENNAN's approach violates our


 * long . . . considered practice not to decide abstract, hypothetical or contingent questions, or to decide any constitutional question in advance of the necessity for its decision.

Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945) (citations omitted).

When JUSTICE BRENNAN finally does address the state of the record, he refers to snippets and excerpts of the relevant facts to explain why a grant of summary judgment was improper. But he totally ignores the effect of Rule 9(g) of the local rules of the District Court, under which the parties set forth their version of the disputed facts in this case. Since [p906] summary judgment was entered against respondents, they are entitled to have their version of the facts, as embodied in their Rule 9(g) statement, accepted for purposes of our review. Since the parties themselves are presumably the best judges of the extent of the factual dispute between them, however, respondents certainly are not entitled to any more favorable version of the facts than that contained in their own Rule 9(g) statement. JUSTICE BRENNAN's combing through the record of affidavits, school bulletins, and the like for bits and snatches of dispute is therefore entirely beside the point at this stage of the case.

Considering only the respondents' description of the factual aspects of petitioners' motivation, JUSTICE BRENNAN's apparent concern that the Board's action may have been a sinister political plot "to suppress ideas" may be laid to rest. The members of the Board, in deciding to remove these books, were undoubtedly influenced by their own "personal values, morals, and tastes," just as any member of a school board is apt to be so influenced in making decisions as to whether a book is educationally suitable. Respondents essentially conceded that some excerpts of the removed books "contained profanities, some were sexually explicit, some were ungrammatical, some were anti-American, and some were offensive to racial, religious or ethnic groups."

Respondents also agreed that,


 * [a]lthough the books themselves [p907] were excluded from use in the schools in any way, [petitioners] have not precluded discussion about the themes of the books or the books themselves.

App. 140. JUSTICE BRENNAN's concern with the "suppression of ideas" thus seems entirely unwarranted on this state of the record, and his creation of constitutional rules to cover such eventualities is entirely gratuitous. Though, for reasons stated in Part II of this opinion, I entirely disagree with JUSTICE BRENNAN's treatment of the constitutional issue, I also disagree with his opinion for the entirely separate reason that it is not remotely tailored to the facts presented by this case.

In the course of his discussion, JUSTICE BRENNAN states:


 * Petitioners rightly possess significant discretion to determine the content of their school libraries. But that discretion may not be exercised in a narrowly partisan or political manner. If a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students. . . . The same conclusion would surely apply if an all-white school board, motivated by racial animus, decided to remove all books authored by blacks or advocating racial equality and integration. Our Constitution does not permit the official suppression of ideas.

Ante at 870-871 (emphasis in original). I can cheerfully concede all of this, but, as in so many other cases, the extreme examples are seldom the ones that arise in the real world of constitutional litigation. In this case, the facts, taken most favorably to respondents, suggest that nothing of this sort happened. The nine books removed undoubtedly did contain "ideas," but, in the light of the excerpts from them found in the dissenting opinion of Judge Mansfield in the Court of Appeals, it is apparent that eight of them contained demonstrable amounts of vulgarity and profanity, see 638 F.2d 404, 419-422, n. 1 (CA2 1980), and the ninth contained [p908] nothing that could be considered partisan or political, see id. at 428, n. 6. As already demonstrated, respondents admitted as much. Petitioners did not, for the reasons stated hereafter, run afoul of the First and Fourteenth Amendments by removing these particular books from the library in the manner in which they did. I would save for another day — feeling quite confident that that day will not arrive — the extreme examples posed in JUSTICE BRENNAN's opinion.

I B
Considerable light is shed on the correct resolution of the constitutional question in this case by examining the role played by petitioners. Had petitioners been the members of a town council, I suppose all would agree that, absent a good deal more than is present in this record, they could not have prohibited the sale of these books by private booksellers within the municipality. But we have also recognized that the government may act in other capacities than as sovereign, and when it does, the First Amendment may speak with a different voice:


 * [I]t cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem, in any case, is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of concern, and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

Pickering v. Board of Education, 391 U.S. 563, 568 (1968). By the same token, expressive conduct which may not be prohibited by the State as sovereign may be proscribed by the State as property owner:


 * The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. [p909]

Adderley v. Florida, 385 U.S. 39, 47 (1966) (upholding state prohibition of expressive conduct on certain state property).

With these differentiated roles of government in mind, it is helpful to assess the role of government as educator, as compared with the role of government as sovereign. When it acts as an educator, at least at the elementary and secondary school level, the government is engaged in inculcating social values and knowledge in relatively impressionable young people. Obviously, there are innumerable decisions to be made as to what courses should be taught, what books should be purchased, or what teachers should be employed. In every one of these areas, the members of a school board will act on the basis of their own personal or moral values, will attempt to mirror those of the community, or will abdicate the making of such decisions to so-called "experts." In this connection, I find myself entirely in agreement with the observation of the Court of Appeals for the Seventh Circuit in Zykan v. Warsaw Community School Corp., 631 F.2d 1300, 1305 (1980), that it is "permissible and appropriate for local boards to make educational decisions based upon their personal social, political and moral views." In the very course of administering the many-faceted operations of a school district, the mere decision to purchase some books will necessarily preclude the possibility of purchasing others. The decision to teach a particular subject may preclude the possibility of teaching another subject. A decision to replace a teacher because of ineffectiveness may, by implication, be seen as a disparagement of the subject matter taught. In each of these instances, however, the book or the exposure to the [p910] subject matter may be acquired elsewhere. The managers of the school district are not proscribing it as to the citizenry in general, but are simply determining that it will not be included in the curriculum or school library. In short, actions by the government as educator do not raise the same First Amendment concerns as actions by the government as sovereign.

II
JUSTICE BRENNAN would hold that the First Amendment gives high school and junior high school students a "right to receive ideas" in the school. Ante at 867. 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, and it prohibits removal of previously acquired books only if the remover "dislike[s] the ideas contained in those books," even though removal for any other reason also denies the students access to the books. Ante at 871-872.

But it is not the limitations which JUSTICE BRENNAN places on the right with which I disagree; they simply demonstrate his discomfort with the new doctrine which he fashions out of whole cloth. 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.

II A
The right described by JUSTICE BRENNAN has never been recognized in the decisions of this Court, and is not supported by their rationale. JUSTICE BRENNAN correctly observes that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." [p911] Tinker v. Des Moines School District, 393 U.S. 503, 506 (1969). But, as this language from Tinker suggests, our past decisions in this area have concerned freedom of speech and expression, not the right of access to particular ideas. We have held that students may not be prevented from symbolically expressing their political views by the wearing of black arm bands, Tinker v. Des Moines School District, supra, and that they may not be forced to participate in the symbolic expression of saluting the flag, West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943). But these decisions scarcely control the case before us. Neither the District Court nor the Court of Appeals found that petitioners' removal of books from the school libraries infringed respondents' right to speak or otherwise express themselves.

Despite JUSTICE BRENNAN's suggestion to the contrary, this Court has never held that the First Amendment grants junior high school and high school students a right of access to certain information in school. It is true that the Court has recognized a limited version of that right in other settings, and JUSTICE BRENNAN quotes language from five such decisions and one of his own concurring opinions in order to demonstrate the viability of the right-to-receive doctrine. Ante at 866-867. But not one of these cases concerned or even purported to discuss elementary or secondary educational institutions. JUSTICE BRENNAN brushes over this significant [p912] omission in First Amendment law by citing Tinker v. Des Moines School District for the proposition that "students too are beneficiaries of this [right-to-receive] principle." Ante at 868. But Tinker held no such thing. One may read Tinker in vain to find any recognition of a First Amendment right to receive information. Tinker, as already mentioned, was based entirely on the students' right to express their political views.

Nor does the right-to-receive doctrine recognized in our past decisions apply to schools by analogy. JUSTICE BRENNAN correctly characterizes the right of access to ideas as "an inherent corollary of the rights of free speech and press" which "follows ineluctably from the sender's First Amendment right to send them." Ante at 867 (emphasis in original). But he then fails to recognize the predicate right to speak from which the students' right to receive must follow. It would be ludicrous, of course, to contend that all authors have a constitutional right to have their books placed in junior high school and high school libraries. And yet, without such a right, our prior precedents would not recognize the reciprocal right to receive information. JUSTICE BRENNAN disregards this inconsistency with our prior cases and fails to explain the constitutional or logical underpinnings of a right to hear ideas in a place where no speaker has the right to express them.

JUSTICE BRENNAN also correctly notes that the reciprocal nature of the right to receive information derives from the fact that it "is a necessary predicate to the recipient's meaningful [p913] exercise of his own rights of speech, press, and political freedom." Ibid. (emphasis in original). But the 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. This fact is inherent in the right-to-receive cases relied on by JUSTICE BRENNAN, every one of which concerned the complete denial of access to the ideas sought. Our past decisions are thus unlike this case, where the removed books are readily available to students and nonstudents alike at the corner bookstore or the public library.

II B
There are even greater reasons for rejecting JUSTICE BRENNAN's analysis, however, than the significant fact that we have never adopted it in the past.


 * The importance of public schools in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests, has long been recognized by our decisions.

Ambach v. Norwick, 441 U.S. 68, 76 (1979). Public [p914] schools fulfill the vital role of teaching students the basic skills necessary to function in our society, and of "inculcating fundamental values necessary to the maintenance of a democratic political system." Id. at 77. The idea that such students have a right of access, in the school, to information other than that thought by their educators to be necessary is contrary to the very nature of an inculcative education.

Education consists of the selective presentation and explanation of ideas. The effective acquisition of knowledge depends upon an orderly exposure to relevant information. Nowhere is this more true than in elementary and secondary schools, where, unlike the broad-ranging inquiry available to university students, the courses taught are those thought most relevant to the young students' individual development. Of necessity, elementary and secondary educators must separate the relevant from the irrelevant, the appropriate from the inappropriate. Determining what information not to present to the students is often as important as identifying relevant material. This winnowing process necessarily leaves much information to be discovered by students at another time or in another place, and is fundamentally inconsistent with any constitutionally required eclecticism in public education.

JUSTICE BRENNAN rejects this idea, claiming that it "overlooks the unique role of the school library." Ante at 457 U.S. 869"]869. But the unique role referred to appears to be one of JUSTICE BRENNAN's own creation. No previous decision of this Court attaches unique First Amendment significance to the libraries of elementary and secondary schools. And in his paean of praise to such libraries as the "environment especially appropriate for the recognition of the First Amendment rights of students," ante at 868, JUSTICE BRENNAN turns to language about public libraries from the three-Justice plurality in Brown v. Louisiana, 383 U.S. 131 (1966), and to language about universities and colleges from 869. But the unique role referred to appears to be one of JUSTICE BRENNAN's own creation. No previous decision of this Court attaches unique First Amendment significance to the libraries of elementary and secondary schools. And in his paean of praise to such libraries as the "environment especially appropriate for the recognition of the First Amendment rights of students," ante at 868, JUSTICE BRENNAN turns to language about public libraries from the three-Justice plurality in Brown v. Louisiana, 383 U.S. 131 (1966), and to language about universities and colleges from Keyishian v. Board of Regents, 385 U.S. 589 (1967). Ante at 868. Not only is his [p915] authority thus transparently thin, but also, and more importantly, his reasoning misapprehends the function of libraries in our public school system.

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, as the public school curriculum is tailored, to the teaching of basic skills and ideas. Thus, JUSTICE BRENNAN cannot rely upon the nature of school libraries to escape the fact that the First Amendment right to receive information simply has no application to the one public institution which, by its very nature, is a place for the selective conveyance of ideas.

After all else is said, however, the most obvious reason that petitioners' removal of the books did not violate respondents' right to receive information is the ready availability of the books elsewhere. Students are not denied books by their removal from a school library. The books may be borrowed from a public library, read at a university library, purchased at a bookstore, or loaned by a friend. The government as educator does not seek to reach beyond the confines of the school. Indeed, following the removal from the school library of the books at issue in this case, the local public library put all nine books on display for public inspection. Their contents were fully accessible to any inquisitive student.

II C
JUSTICE BRENNAN's own discomfort with the idea that students have a right to receive information from their elementary or secondary schools is demonstrated by the artificial limitations which he places upon the right — limitations which are supported neither by logic nor authority and which are inconsistent with the right itself. The attempt to confine the right to the library is one such limitation, the fallacies of which have already been demonstrated. [p916]

As a second limitation, JUSTICE BRENNAN distinguishes the act of removing a previously acquired book from the act of refusing to acquire the book in the first place:


 * [N]othing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools. [O]ur holding today affects only the discretion to remove books.

Ante at 871-872 (emphasis in original). If JUSTICE BRENNAN truly has found a "right to receive ideas," ante at 866-867, however, this distinction between acquisition and removal makes little sense. The failure of a library to acquire a book denies access to its contents just as effectively as does the removal of the book from the library's shelf. As a result of either action, the book cannot be found in the "principal locus" of freedom discovered by JUSTICE BRENNAN. Ante at 868.

The justification for this limiting distinction is said by JUSTICE BRENNAN to be his concern in this case with "the suppression of ideas." Ante at 871. Whatever may be the analytical usefulness of this appealing sounding phrase, see Part II-D, infra, the suppression of ideas surely is not the identical twin of the denial of access to information. Not every official act which denies access to an idea can be characterized as a suppression of the idea. Thus, unless the "right to receive information" and the prohibition against "suppression of ideas" are each a kind of Mother-Hubbard catch phrase for whatever First Amendment doctrines one wishes to cover, they would not appear to be interchangeable.

JUSTICE BRENNAN's reliance on the "suppression of ideas" to justify his distinction between acquisition and removal of books has additional logical pitfalls. Presumably the distinction is based upon the greater visibility and the greater sense of conscious decision thought to be involved in the removal of a book, as opposed to that involved in the refusal to acquire a book. But if "suppression of ideas" is to be the talisman, one would think that a school board's public announcement of its refusal to acquire certain books would have every bit as much [p917] impact on public attention as would an equally publicized decision to remove the books. And yet only the latter action would violate the First Amendment under JUSTICE BRENNAN's analysis.

The final limitation placed by JUSTICE BRENNAN upon his newly discovered right is a motive requirement: the First Amendment is violated only "[i]f petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed." Ante at 871 (emphasis in original). 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. Of course JUSTICE BRENNAN's view is that intent matters because the First Amendment does not tolerate an officially prescribed orthodoxy. Ante at 870-872. But this reasoning mixes First Amendment apples and oranges. The right to receive information differs from the right to be free from an officially prescribed orthodoxy. Not every educational denial of access to information casts a pall of orthodoxy over the classroom.

It is difficult to tell from JUSTICE BRENNAN's opinion just what motives he would consider constitutionally impermissible. I had thought that the First Amendment proscribes content-based restrictions on the marketplace of ideas. See Widmar v. Vincent, 454 U.S. 263, 269-270 (1981). JUSTICE BRENNAN concludes, however, that a removal decision based solely upon the "educational suitability" of a book or upon its perceived vulgarity is "‘perfectly permissible.'" Ante at 871 (quoting Tr. of Oral Arg. 53). But such determinations are based as much on the content of the book as determinations that the book espouses pernicious political views.

Moreover, JUSTICE BRENNAN's motive test is difficult to square with his distinction between acquisition and removal. If a school board's removal of books might be motivated by a desire to promote favored political or religious views, there is [p918] no reason that its acquisition policy might not also be so motivated. And yet the "pall of orthodoxy" cast by a carefully executed book acquisition program apparently would not violate the First Amendment under JUSTICE BRENNAN's view.

II D
Intertwined as a basis for JUSTICE BRENNAN's opinion, along with the "right to receive information," is the statement that "[o]ur Constitution does not permit the official suppression of ideas." Ante at 871 (emphasis in original). There would be few champions, I suppose, of the idea that our Constitution does permit the official suppression of ideas; my difficulty is not with the admittedly appealing catchiness of the phrase, but with my doubt that it is really a useful analytical tool in solving difficult First Amendment problems. Since the phrase appears in the opinion "out of the blue," without any reference to previous First Amendment decisions of this Court, it would appear that the Court for years has managed to decide First Amendment cases without it.

I would think that prior cases decided under established First Amendment doctrine afford adequate guides in this area without resorting to a phrase which seeks to express "a complicated process of constitutional adjudication by a deceptive formula." Kovacs v. Cooper, 336 U.S. 77, 96 (1949) (Frankfurter, J., concurring). A school board which publicly adopts a policy forbidding the criticism of United States foreign policy by any student, any teacher, or any book on the library shelves is indulging in one kind of "suppression of ideas." A school board which adopts a policy that there shall be no discussion of current events in a class for high school sophomores devoted to second-year Latin "suppresses ideas" in quite a different context. A teacher who had a lesson plan consisting of 14 weeks of study of United States history from 1607 to the present time, but who, because of a week's illness, is forced to forgo the most recent 20 years of American history, may "suppress ideas" in still another way. [p919]

I think a far more satisfactory basis for addressing these kinds of questions is found in the Court's language in Tinker v. Des Moines School District, where we noted:


 * [A] particular symbol — black armbands worn to exhibit opposition to this Nation's involvement in Vietnam — was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.

393 U.S. at 510-511.

In the case before us, the petitioners may, in one sense, be said to have "suppressed" the "ideas" of vulgarity and profanity, but that is hardly an apt description of what was done. They ordered the removal of books containing vulgarity and profanity, but they did not attempt to preclude discussion about the themes of the books or the books themselves. App. 140. Such a decision, on respondents' version of the facts in this case, is sufficiently related to "educational suitability" to pass muster under the First Amendment.

II E
The inconsistencies and illogic of the limitations placed by JUSTICE BRENNAN upon his notion of the right to receive ideas in school are not here emphasized in order to suggest that they should be eliminated. They are emphasized because they illustrate that the right itself is misplaced in the elementary and secondary school setting. Likewise, the criticism of JUSTICE BRENNAN's newly found prohibition against the "suppression of ideas" is by no means intended to suggest that the Constitution permits the suppression of ideas; it is rather to suggest that such a vague and imprecise phrase, while perhaps wholly consistent with the First Amendment, is simply too diaphanous to assist careful decision of cases such as this one. [p920]

I think the Court will far better serve the cause of First Amendment jurisprudence by candidly recognizing that the role of government as sovereign is subject to more stringent limitations than is the role of government as employer, property owner, or educator. It must also be recognized that the government as educator is subject to fewer strictures when operating an elementary and secondary school system than when operating an institution of higher learning. ''Cf. Tilton v. Richardson'', 403 U.S. 672, 685-686 (1971) (opinion of BURGER, C.J.). With respect to the education of children in elementary and secondary schools, the school board may properly determine in many cases that a particular book, a particular course, or even a particular area of knowledge is not educationally suitable for inclusion within the body of knowledge which the school seeks to impart. Without more, this is not a condemnation of the book or the course; it is only a determination akin to that referred to by the Court in Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926): "A nuisance may be merely a right thing in the wrong place, — like a pig in the parlor instead of the barnyard."

III
Accepting as true respondents' assertion that petitioners acted on the basis of their own "personal values, morals and tastes," App. 139, I find the actions taken in this case hard to distinguish from the myriad choices made by school boards in the routine supervision of elementary and secondary schools.


 * Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.

Epperson v. Arkansas, 393 U.S. 97, 104 (1968). In this case, respondents' rights of free speech and expression were not infringed, and, by respondents' own admission, no ideas were "suppressed." I would leave to another day the harder cases. [p921]