Judicial Clairvoyance and the First Amendment: The Role of Motivation in Judicial Review of Book Banning in the Public Schools
![handle is hein.journals/unilllr1983 and id is 743 raw text is: JUDICIAL CLAIRVOYANCE AND THE FIRST AMENDMENT:
THE ROLE OF MOTIVATION IN JUDICIAL REVIEW
OF BOOK BANNING IN THE PUBLIC SCHOOLS
I. INTRODUCTION
Recently, local school boards' removal of books from school li-
braries has generated heated public controversy and considerable legal
debate. Book banning brings two democratic principles into sharp con-
flict. Few traditions are as well-entrenched in American society as lo-
cal control over public education.' On the other hand, few notions are
as anti-democratic as library censorship.
School boards have broad discretion to supervise the functioning
of public schools. Local educational authorities' pedagogical decisions
deserve judicial deference.2 When a school board removes books from
a school library because the books are anti-Christian or anti-Ameri-
can,3 however, the board's action resembles ideological repression
more than pedagogical discretion. One school board in Illinois went so
far as to convey the books it had banned to a local senior citizens group
for a public burning.4
At some point, a school board's abuse of discretion becomes so
flagrant that the courts must intervene. The first amendment prohibits
any elected official from prescrib[ing] what shall be orthodox in poli-
tics, nationalism, religion, or other matters of opinion. . . .' Even in
the uniquely restricted environment of primary and secondary school
systems, school boards may not exercise their discretion free from con-
stitutional constraints.
The Supreme Court addressed this problem recently in Board of
Education v. Pico,6 but the Justices failed to agree on a solution. In
i. See Ambach v. Norwick, 441 U.S. 68, 75-78 (1979). The Supreme Court noted that
[t]he 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, long has been recognized by our
decisions . I... Id at 76. Courts usually refrain from interfering with government decisions
regarding substantive educational policy. See San Antonio School Dist. v. Rodriguez, 411 U.S. I.
35-36, 42-43 (1973). See also Diamond, The First Amendment and Public Schools: The Case
Against Judicial Intervention, 59 TEX. L. REV. 477, 499-500 (1981). See generally V. THAYER,
FORMATIVE IDEAS IN AMERICAN EDUCATION (1965).
2. See Epperson v. Arkansas, 393 U.S. 97, 104 (1968). The Supreme Court recognized that
[bly and large, public education in our Nation is committed to the control of state and local
authorities. Id
3. The local board of education responsible for removing nine books from its schools' li-
braries included these epithets in a press release issued to explain why the books were removed.
For the full text of the press release, see Pico v. Board of Educ., 474 F. Supp. 387, 390-91
(E.D.N.Y. 1979), rev'd, 638 F.2d 404 (2d Cir. 1980), aft'd, 102 S. Ct. 2799 (1982).
4. Zykan v. Warsaw Community School Corp., 631 F.2d 1300, 1302 n.2 (1980).
5. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
6. 102 S. Ct. 2799 (1982).](ViewImageLocal?handle=hein.journals/unilllr1983&div=35&collection=&method=preview&ext=.png&size=3)
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Judicial Clairvoyance and the First Amendment: The Role of Motivation in Judicial Review of Book Banning in the Public Schools
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