Board of Education v. Pico/Concurrence Blackmun

by Harry Blackmun

JUSTICE BLACKMUN, concurring in part and concurring in the judgment.

While I agree with much in today's plurality opinion, and while I accept the standard laid down by the plurality to [p876] guide proceedings on remand, I write separately because I have a somewhat different perspective on the nature of the First Amendment right involved.

I

To my mind, this case presents a particularly complex problem because it involves two competing principles of constitutional stature. On the one hand, as the dissenting opinions demonstrate, and as we all can agree, the Court has acknowledged the importance of the public schools "in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests." Ambach v. Norwick, 441 U.S. 68"]441 U.S. 68, 76 (1979). See also ante at 863-864 (plurality opinion). Because of the essential socializing function of schools, local education officials may attempt "to promote civic virtues," Ambach v. Norwick, 441 U.S. at 80, and to "awake[n] the child to cultural values." 441 U.S. 68, 76 (1979). See also ante at 863-864 (plurality opinion). Because of the essential socializing function of schools, local education officials may attempt "to promote civic virtues," Ambach v. Norwick, 441 U.S. at 80, and to "awake[n] the child to cultural values." Brown v. Board of Education, 347 U.S. 483, 493 (1954). Indeed, the Constitution presupposes the existence of an informed citizenry prepared to participate in governmental affairs, and these democratic principles obviously are constitutionally incorporated into the structure of our government. It therefore seems entirely appropriate that the State use "public schools [to] . . . inculcat[e] fundamental values necessary to the maintenance of a democratic political system." Ambach v. Norwick, 441 U.S. at 77.

On the other hand, as the plurality demonstrates, it is beyond dispute that schools and school boards must operate within the confines of the First Amendment. In a variety of academic settings, the Court therefore has acknowledged the force of the principle that schools, like other enterprises operated by the State, may not be run in such a manner as to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943). While none of these cases defines the limits of a school board's authority [p877] to choose a curriculum and academic materials, they are based on the general proposition that

state-operated schools may not be enclaves of totalitarianism. . . . In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate.

Tinker v. Des Moines School Dist., 393 U.S. 503, 511 (1969).

The Court in Tinker thus rejected the view that "a State might so conduct its schools as to ‘foster a homogeneous people.'" Id. at 393 U.S. 511"]511, quoting Meyer v. Nebraska, 262 U.S. 390, 402 (1923). Similarly, 511, quoting Meyer v. Nebraska, 262 U.S. 390, 402 (1923). Similarly, Keyishian v. Board of Regents, 385 U.S. 589 (1967) — a case that involved the State's attempt to remove "subversives" from academic positions at its universities, but that addressed itself more broadly to public education in general — held that "[t]he classroom is peculiarly the ‘marketplace of ideas"'; the First Amendment therefore "does not tolerate laws that cast a pall of orthodoxy over the classroom." Id. at 603. And Barnette is most clearly applicable here: its holding was based squarely on the view that

[f]ree public education, if faithful to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction.

319 U.S. at 637. The Court therefore made it clear that imposition of "ideological discipline" was not a proper undertaking for school authorities. Ibid.

In combination with more generally applicable First Amendment rules, most particularly the central proscription of content-based regulations of speech, see Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), the cases outlined above yield a general principle: the State may not suppress exposure to ideas — for the sole purpose of suppressing exposure to those ideas — absent sufficiently compelling reasons. Because the school board must perform all its functions "within the limits of the Bill of Rights," Barnette, 319 U.S. at 637, this principle necessarily applies in at least a limited way to public education. Surely this is true in an extreme [p878] case: as the plurality notes, it is difficult to see how a school board, consistent with the First Amendment, could refuse for political reasons to buy books written by Democrats or by Negroes, or books that are "anti-American" in the broadest sense of that term. Indeed, JUSTICE REHNQUIST appears "cheerfully [to] concede" this point. Post at 907 (dissenting opinion).

In my view, then, the principle involved here is both narrower and more basic than the "right to receive information" identified by the plurality. I do not suggest that the State has any affirmative obligation to provide students with information or ideas, something that may well be associated with a "right to receive." See post at 887 (BURGER, C.J., dissenting); post at 915-918 (REHNQUIST, J., dissenting). And I do not believe, as the plurality suggests, that the right at issue here is somehow associated with the peculiar nature of the school library, see ante at 868-869; if schools may be used to inculcate ideas, surely libraries may play a role in that process. ^[1] Instead, I suggest that certain forms of state discrimination [p879] between ideas are improper. In particular, our precedents command the conclusion that the State may not act to deny access to an idea simply because state officials disapprove of that idea for partisan or political reasons. ^[2]

Certainly, the unique environment of the school places substantial limits on the extent to which official decisions may be restrained by First Amendment values. But that environment also makes it particularly important that some limits be imposed. The school is designed to, and inevitably will, inculcate ways of thought and outlooks; if educators intentionally may eliminate all diversity of thought, the school will "strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." Barnette, 319 U.S. at 637. As I see it, then, the question in this case is how to make the delicate accommodation between the limited constitutional restriction that I think is imposed by the First Amendment and the necessarily broad state authority to regulate education. In starker terms, we must reconcile the schools' "inculcative" function with the First Amendment's bar on "prescriptions of orthodoxy."

II

In my view, we strike a proper balance here by holding that school officials may not remove books for the purpose of restricting access to the political ideas or social perspectives discussed in them, when that action is motivated simply by [p880] the officials' disapproval of the ideas involved. It does not seem radical to suggest that state action calculated to suppress novel ideas or concepts is fundamentally antithetical to the values of the First Amendment. At a minimum, allowing a school board to engage in such conduct hardly teaches children to respect the diversity of ideas that is fundamental to the American system. In this context, then, the school board must

be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,

Tinker v. Des Moines School Dist., 393 U.S. at 509, and that the board had something in mind in addition to the suppression of partisan or political views it did not share.

As I view it, this is a narrow principle. School officials must be able to choose one book over another, without outside interference, when the first book is deemed more relevant to the curriculum, or better written, or when one of a host of other politically neutral reasons is present. These decisions obviously will not implicate First Amendment values. And even absent space or financial limitations, First Amendment principles would allow a school board to refuse to make a book available to students because it contains offensive language, cf. FCC v. Pacifica Foundation, 438 U.S. 726, 757 (1978) (POWELL, J., concurring), or because it is psychologically or intellectually inappropriate for the age group, or even, perhaps, because the ideas it advances are "manifestly inimical to the public welfare." Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925). And, of course, school officials may choose one book over another because they believe that one subject is more important, or is more deserving of emphasis.

As is evident from this discussion, I do not share JUSTICE REHNQUIST's view that the notion of "suppression of ideas" is not a useful analytical concept. See post at 918-920 (dissenting opinion). Indeed, JUSTICE REHNQUIST's discussion itself [p881] demonstrates that "access to ideas" has been given meaningful application in a variety of contexts. See post at 910-920, 914 ("[e]ducation consists of the selective presentation and explanation of ideas"). And I believe that tying the First Amendment right to the purposeful suppression of ideas makes the concept more manageable than JUSTICE REHNQUIST acknowledges. Most people would recognize that refusing to allow discussion of current events in Latin class is a policy designed to "inculcate" Latin, not to suppress ideas. Similarly, removing a learned treatise criticizing American foreign policy from an elementary school library because the students would not understand it is an action unrelated to the purpose of suppressing ideas. In my view, however, removing the same treatise because it is "anti-American" raises a far more difficult issue.

It is not a sufficient answer to this problem that a State operates a school in its role as "educator," rather than its role as "sovereign," see post at 908-910 (REHNQUIST, J., dissenting), for the First Amendment has application to all the State's activities. While the State may act as "property owner" when it prevents certain types of expressive activity from taking place on public lands, for example, see post at 908-909, few would suggest that the State may base such restrictions on the content of the speaker's message, or may take its action for the purpose of suppressing access to the ideas involved. See Police Department of Chicago v. Mosley, 408 U.S. at 96. And while it is not clear to me from JUSTICE REHNQUIST's discussion whether a State operates its public libraries in its "role as sovereign," surely difficult constitutional problems would arise if a State chose to exclude "anti-American" books from its public libraries — even if those books remained available at local bookstores.

Concededly, a tension exists between the properly inculcative purposes of public education and any limitation on the school board's absolute discretion to choose academic materials. But that tension demonstrates only that the problem [p882] here is a difficult one, not that the problem should be resolved by choosing one principle over another. As the Court has recognized, school officials must have the authority to make educationally appropriate choices in designing a curriculum:

the State may "require teaching by instruction and study of all in our history and in the structure and organization of our government, including the guaranties of civil liberty, which tend to inspire patriotism and love of country."

Barnette, 319 U.S. at 631, quoting Minersville School District v. Gobitis, 310 U.S. 586, 604 (1940) (Stone, J., dissenting). Thus school officials may seek to instill certain values "by persuasion and example," 319 U.S. at 640, or by choice of emphasis. That sort of positive educational action, however, is the converse of an intentional attempt to shield students from certain ideas that officials find politically distasteful. Arguing that the majority in the community rejects the ideas involved, see post at 889, 891-892 (BURGER, C.J., dissenting), does not refute this principle:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials. . . .

Barnette, 319 U.S. at 638.

As THE CHIEF JUSTICE notes, the principle involved here may be difficult to apply in an individual case. See post at 889 (dissenting opinion). But on a record as sparse as the one before us, the plurality can hardly be faulted for failing to explore every possible ramification of its decision. And while the absence of a record "underscore[s] the views of those of us who originally felt that the cas[e] should not be taken," Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 559 (1957) (opinion of Harlan, J.), the case is here, and must be decided.

Because I believe that the plurality has derived a standard similar to the one compelled by my analysis, I join all but Part II-A(1) of the plurality opinion. [p883]

Notes

1. . As a practical matter, however, it is difficult to see the First Amendment right that I believe is at work here playing a role in a school's choice of curriculum. The school's finite resources — as well as the limited number of hours in the day — require that education officials make sensitive choices between subjects to be offered and competing areas of academic emphasis; subjects generally are excluded simply because school officials have chosen to devote their resources to one, rather than to another, subject. As is explained below, a choice of this nature does not run afoul of the First Amendment. In any event, the Court has recognized that students' First Amendment rights in most cases must give way if they interfere "with the schools' work or [with] the rights of other students to be secure and to be let alone," Tinker v. Des Moines School Dist., 393 U.S. 503, 508 (1969), and such interference will rise to intolerable levels if public participation in the management of the curriculum becomes commonplace. In contrast, library books on a shelf intrude not at all on the daily operation of a school.
2. . In effect, my view presents the obverse of the plurality's analysis: while the plurality focuses on the failure to provide information, I find crucial the State's decision to single out an idea for disapproval and then deny access to it.