Thursday, July 27, 2006

School Board v. Pico:

What happens when the winning argument loses.

The federal court that ruled that Vamos a Cuba should be put back on school shelves relied on a 1982 Supreme Court case named School Board v. Pico. In a 5-4 decision that court ruled that "the Board could not restrict the availability of books in its libraries simply because its members disagreed with their idea content."

You might be asking: OK Henry, what's the point?

Well the point is that like many court decisions the Justices were very divided in their opinions. The most brilliant legal minds could not decide on the fundamental point made above. Well that's going to happen, but it shows us that the courts are not an infallible instrument. There is a tendency for people to want to believe that once the court decides something that it's "settled law". But the Supreme Court has ruled in favor of some things that, in retrospect, are repugnant like slavery and segregation. Thankfully the court's composition changed and eventually someone sucessfully challenged those precedents but in the meantime many, many years passed before the initial wrong could be righted.

All this is to set up the following excerpts from the dissenting opinion in the Pico case. I think it's instructive to know what the four dissenting Justices, including the Chief Justice, thought of this case.

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

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." 5 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. [...] 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. [...]

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 "[dislikes] 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. [...]

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. [...]

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. [...]

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. [...]

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 final limitation placed by JUSTICE BRENNAN upon his newly discovered right is a motive requirement: the First Amendment is violated only "[if] petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed." 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. [...]

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.
If you've hung around this long I'd like to direct your attention to Justice O'Connor's dissenting opinion.
JUSTICE O'CONNOR, dissenting. [...]

I do not personally agree with the Board's action with respect to some of the books in question here, but it is not the function of the courts to make the decisions that have been properly relegated to the elected members of school boards. It is the school board that must determine educational suitability, and it has done so in this case. I therefore join THE CHIEF JUSTICE's dissent.

I don't know, but that sounds a lot like what I said here.

So these were the arguments of the "losing" side. But they sound like winning arguments to me. And the really disturbing part is that Pico has been the law of the land for 24 years. I submit for your consideration the following:

If the court had ruled correctly (IMO) in favor of the school board, the people who sued the school board could have mobilized the citizenry and used the normal political channels (remove the school board members through elections and put the issue back on the table) to get their way and have the books reinstated in relatively short order. On the other hand the actual losers in this case had no recourse because now the decision was considered "settled law" and thus we have a warped vision of the first amendment as a right to receive rather than transmit information that persists to this day. Failing a constitutional amendment only a similar case taken up by a new Supreme Court could reverse this decision.

No, I'm not a constitutional scholar or a Supreme Court Justice, that's why I have quoted them extensively here. Have a problem with these opinions, take it up with them.


Srcohiba said...

There's more to the opinion by Judge Gold which you need to read to understand why the opinion came down as it did. Without getting into a legal discussion with y'all, which is what I get paid to do, to sum up the whole matter in a few words, the school board, as usual, "blew it."

School boards have the right to pick and choose those materials and books which are part of the curriculum.

The Pico plurality decision holds:

school boards have the discretion "to choose books to add to the libraries of their schools." However, "local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to 'prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.'" BOARD OF EDUCATION, ISLAND TREES UNION FREE SCHOOL DISTRICT NO. 26 v. PICO, 457 U.S. 853 (1982) citing West Virginia Board of Education v. Barnette, 319 U.S., at 642, 63 S.Ct., at 1187.

The other federal circuits have applied this language to the scenario similar to Miami.

The problem here is with the board, not the decision. Read it. You'll see that 1) the board did not follow its own procedures re: handling book complaints and for removal; 2) the board members changed their testimony (between the school board hearing) and their testimony before the court; first saying they wanted to remove the book because it offended them and because they disagreed with it; then saying it was a curriculum issue. The evidence demonstrated that the book was not part of any curriculum whatsoever. The board went so far to remove all of the books in the series without a hearing and without following procedure. The evidence presented was that all of the books were practically identical except for the photos.

As I've stated before, someone needs to review what they purchase. Had they not purchased the book at all; then no problem. Had they removed the book from curriculum, then no problem. But the boards inconsistent statements, their failure to follow procedure, their failure to abide by the recomendation of the school board attorney, has accomplished what?

1) the detestable ACLU will receive a buttload of money in fees from the School Board, rather me and all other taxpayers in Miami Dade County;
2) the litigation cost to the Board will be approx. $300K is this proceeds beyond the district court and to the court of appeals; money that I'm paying through my tax dollars which could have been used to better our kids' education;
3) the libs and those who love to defame us have a propoganda victory
4) the book will remain on the shelves which I'm sure was not checked out at all; and the author gets free publicity;
5) for those children ages 6-9 that may have checked out the book, I doubt that they'll be castro apologists when they get older.

had they not made a big deal of this thing, the book would have been gathering dust; the ACLU lawyers would be poorer; and the school board would have more money for education rather than litigation.

Sometimes it's more important to be practical than morally correct. A phyrric victory accomplishes nothing.

Henry "Conductor" Gomez said...


I agree with your assessment of the school board and the fact that they violated their own procedures has been pointed out to me. But I wanted to talk about this from a different perspective which is why I posted the feelings of the dissenting justices in the Pico case which was quoted in the Vamos case.

I pose the question: did the court get it right in 1982?

In my opinion it did not. And to take this debate to an even bigger picture level how much control should the courts have over democratically elected institutions?

The judiciary is the least democratic of the branches of government. And in some instances that's a good a thing. But there is also an enourmous amount of power there that ultimately doesn't answer to anyone.

As I've demonstrated the Supreme court has made monstruous rulings that have affected the lives of millions of people only to have some court 30 or 40 or 50 years down the line revoke the so called settled law. The slow pace of change in the judiciary (lifetime appointments) creates this system in which wrongs are not righted for many many years.

So let me posit this question to you. If the court was wrong in Pico, that is that the freedom to transmit speech does not equate to an absolute freedom to receive speech (at least in a school setting) then would it be a "waste of time and money" to take a case like the one we have now all the way to the supreme court to try and overturn Pico?

Henry "Conductor" Gomez said...

I recognize by the way that the merits of this case may make it so that it's not an ideal test of Pico (because of bureaucratic bumbling) but at some point it seems to me that it would be worthwhile to challenge this case for all the reasons the dissenting justices said.

And here's the clincher to me. The board could have refused to purchase the book in the first place on ANY grounds including disagreeing with the content but once they bought and stocked the book they are constricted by an artificial test doesn't make sense. To me there is an untindended consequence here. The process of acquiring books can become highly politicized because once a book is in circulation it will be virtually impossible to remove it. Pandora's box.

Srcohiba said...

As Judge Gold states and as other Circuit Courts of Appeal hold, the Pico decision written by Judge Brennan was 4 votes. Justice (White I believe), concurred in the Judgment only. The Courts have held that as a result, they should apply Brennan's opinion.

As far as Pico is concerned, given the right test case, it could be decided differently today. But is the cost of the fight worth it? To take this case all the way to the Supremes, and assuming the Supremes take it, will cost the Board a fortune. And if the Board wins, then all they get is vindication of the decision. The do not get fees from the ACLU. The taxpayer bears the cost.

Had the Board handled this thing appropriately by their own rules, and not by those seeking political gain, they may have a decent test case.

As for the Court, who has the ultimate say so on the constitutionality of laws and conduct, the umpire as Justice Roberts put it, someone will always disagree with an opinion. Some opinions are buttressed on solid legal bedrock and others do not. For example, the Texas Sodomy Case which overruled the Bowers decision, in my professional opinion, the result was correct, the majority opinion was wrong. O'Conner's concurring opinion is what I feel should have carried the day.

But I disagree with those pundits that say the court is out of control and all that jazz. It's bunk coming from idealogues and the media which never report correctly what the court rules.

How our system works is quite beautiful. If the Supreme Court issues an opinion we don't like, then you have a remedy: 1) amend the law through the legislature; or 2) amend the constitution.

Srcohiba said...

Actually the system does work. Dred Scott was a terrible opinion. It led to the Civil War which led to the 13th, 14th, and 15th amendments. Prior to those amendments, slavery was not unconstitutional; it was a state issue.

As for Brown, I think you're confusing Plessy v. Ferguson which was the 19th century decision which gave us nearly 60 years of seperate but equal. Fortunately, the COurt had the courage to overrrule it in Brown where the Supremes held that seperate is inherently unequal and unconstitutional under the 14th Amendment Equal Protection Clause.

Remember, that the Constitution is only applicable to the govt.

Where people disagree is primarily on what constitutes a fundamental right. Most people agree that the bill of rights and the 13-15th amendments confer fundamental rights to the people. Where people differ is with the right to privacy.

There is no explicit right to privacy in the constitution. Yet the court in 50 years of precedent starting with Griswald (which challeneged laws prohibiting sale of condoms) and up to Roe and its progeny, has held that there is a right to privacy in the penumbras of the consitution. It's complicated stuff. But I'm sure the majority of the folks in this country would crap in their pants if all of a sudden, the Court held there is no constitutional right to privacy.

If that did happen, they'd have to amend the constitution to fix it.

Amending the laws is done all the time. In 1987, the US Supreme COurt overruled 30 years of civil rights precedents. Then congress in 1991 amended the laws to put them back to how they felt they should be. It's how it works.

But I just wish that critics would study the process and the history rather than attack the system based solely on what pundits say. I like to try to educate which is why I post these type of message.


Henry "Conductor" Gomez said...

Well we can agree to disagree. I don't think amending the law is a solution because the first challenge in court will result in a ruling that cites the Pico precedent. And amending the constitution is an extremely high barrier to cross. When the court creates "rights" that are not expicitly stated in the constitution their efforts result in a de facto amendment to the constitution.

I think our system works but it's not beautiful. It wasn't beautiful for Dred Scott or for Plessy in the Plessy v. Ferguson case.

I'm not an attorney but my field of study in college was economics and my area of interest was antitrust economics which is directly linked with antitrust law. And I have read the cases that the Warren court ruled on and they are laughable today.

I agree the media does a shit job educating people about the way the legal system works.

Henry "Conductor" Gomez said...

Yes, I confused Plessy with Brown. I have edited my original comment. For some reason the comments are appearing out of order. No intent to confuse just one of the quirks in blogger.

Boli-Nica said...

The dissenting opinion however does leave open the 1st Amendemnt concern.

I would think that prior cases decided under established First Amendment doctrine afford adequate guides in this area

"[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.

Basically, the record in this case -including the minutes of the Boards agenda, trasncripts of the meetings, and memo's between it and the administration, was overwhelmingly that the book was removed for expressing -- an unpopular idea or opinion. And that is what the Judge concluded.
- It was basically Frank Bolanos silly charade that did it in - his paws are all over the memos that the judge cited in his decision.
So even under a stricter interpretation, a Court might have found against the district, particularly when the issue was not over vulgarity, and the record so clearly showed a political motivation.