Board of Education v. Pico/Opinion of the Court

by William J. Brennan

JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion, in which JUSTICE MARSHALL and JUSTICE STEVENS joined, and in which JUSTICE BLACKMUN joined except for Part II-A-(1).

The principal question presented is whether the First Amendment ^[1] imposes limitations upon the exercise by a local [p856] school board of its discretion to remove library books from high school and junior high school libraries.

I

Petitioners are the Board of Education of the Island Trees Union Free School District No. 26, in New York, and Richard Ahrens, Frank Martin, Christina Fasulo, Patrick Hughes, Richard Melchers, Richard Michaels, and Louis Nessim. When this suit was brought, Ahrens was the President of the Board, Martin was the Vice President, and the remaining petitioners were Board members. The Board is a state agency charged with responsibility for the operation and administration of the public schools within the Island Trees School District, including the Island Trees High School and Island Trees Memorial Junior High School. Respondents are Steven Pico, Jacqueline Gold, Glenn Yarris, Russell Rieger, and Paul Sochinski. When this suit was brought, Pico, Gold, Yarris, and Rieger were students at the High School, and Sochinski was a student at the Junior High School.

In September, 1975, petitioners Ahrens, Martin, and Hughes attended a conference sponsored by Parents of New York United (PONYU), a politically conservative organization of parents concerned about education legislation in the State of New York. At the conference, these petitioners obtained lists of books described by Ahrens as "objectionable," App. 22, and by Martin as "improper fare for school students," id. at 101. ^[2] It was later determined that the High School library contained nine of the listed books, and that another listed book was in the Junior High School library. ^[3] In [p857] February, 1976, at a meeting with the Superintendent of Schools and the Principals of the High School and Junior High School, the Board gave an "unofficial direction" that the listed books be removed from the library shelves and delivered to the Board's offices so that Board members could read them. ^[4] When this directive was carried out, it became publicized, and the Board issued a press release justifying its action. It characterized the removed books as "anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy," and concluded that "[i]t is our duty, our moral obligation, to protect the children in our schools from this moral danger as surely as from physical and medical dangers." 474 F.Supp. 387, 390 (EDNY 1979).

A short time later, the Board appointed a "Book Review Committee," consisting of four Island Trees parents and four members of the Island Trees schools staff, to read the listed books and to recommend to the Board whether the books should be retained, taking into account the books' "educational suitability," "good taste," "relevance," and "appropriateness to age and grade level." In July, the Committee [p858] made its final report to the Board, recommending that five of the listed books be retained ^[5] and that two others be removed from the school libraries. ^[6] As for the remaining four books, the Committee could not agree on two, ^[7] took no position on one, ^[8] and recommended that the last book be made available to students only with parental approval. ^[9] The Board substantially rejected the Committee's report later that month, deciding that only one book should be returned to the High School library without restriction, ^[10] that another should be made available subject to parental approval ^[11] but that the remaining nine books should "be removed from elementary and secondary libraries and [from] use in the curriculum." Id. at 391. ^[12] The Board gave no reasons for rejecting the recommendations of the Committee that it had appointed.

Respondents reacted to the Board's decision by bringing the present action under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of New York. They alleged that petitioners had

ordered the removal of the books from school libraries and proscribed their use in the curriculum because particular passages in the books offended their social, political [p859] and moral tastes, and not because the books, taken as a whole, were lacking in educational value.

App. 4. Respondents claimed that the Board's actions denied them their rights under the First Amendment. They asked the court for a declaration that the Board's actions were unconstitutional, and for preliminary and permanent injunctive relief ordering the Board to return the nine books to the school libraries and to refrain from interfering with the use of those books in the schools' curricula. Id. at 5-6.

The District Court granted summary judgment in favor of petitioners. 474 F.Supp. 387 (1979). In the court's view, "the parties substantially agree[d] about the motivation behind the board's actions," id. at 391 — namely, that

the board acted not on religious principles, but on its conservative educational philosophy, and on its belief that the nine books removed from the school library and curriculum were irrelevant, vulgar, immoral, and in bad taste, making them educationally unsuitable for the district's junior and senior high school students.

Id. at 392.

With this factual premise as its background, the court rejected respondents' contention that their First Amendment rights had been infringed by the Board's actions. Noting that statutes, history, and precedent had vested local school boards with a broad discretion to formulate educational policy, ^[13] the court concluded that it should not intervene in "‘the daily operations of school systems'" unless "'basic constitutional values'" were "'sharply implicate[d],'" ^[14] and determined [p860] that the conditions for such intervention did not exist in the present case. Acknowledging that the "removal [of the books] . . . clearly was content-based," the court nevertheless found no constitutional violation of the requisite magnitude:

The board has restricted access only to certain books which the board believed to be, in essence, vulgar. While removal of such books from a school library may . . . reflect a misguided educational philosophy, it does not constitute a sharp and direct infringement of any first amendment right.

Id. at 397.

A three-judge panel of the United States Court of Appeals for the Second Circuit reversed the judgment of the District Court, and remanded the action for a trial on respondents' allegations. 638 F.2d 404 (1980). Each judge on the panel filed a separate opinion. Delivering the judgment of the court, Judge Sifton treated the case as involving "an unusual and irregular intervention in the school libraries' operations by persons not routinely concerned with such matters," and concluded that petitioners were obliged to demonstrate a reasonable basis for interfering with respondents' First Amendment rights. Id. at 414-415. He then determined that, at least at the summary judgment stage, petitioners had not offered sufficient justification for their action, ^[15] and concluded that respondents

should have . . . been offered an opportunity to persuade a finder of fact that the ostensible justifications for [petitioners'] actions . . . were simply pretexts for the suppression of free speech.

Id. at 417. ^[16] Judge Newman [p861] concurred in the result. Id. at 432-438. He viewed the case as turning on the contested factual issue of whether petitioners' removal decision was motivated by a justifiable desire to remove books containing vulgarities and sexual explicitness, or rather by an impermissible desire to suppress ideas. Id. at 4337. ^[17] We granted certiorari, 454 U.S. 891 (1981).

II

We emphasize at the outset the limited nature of the substantive question presented by the case before us. Our precedents have long recognized certain constitutional limits upon the power of the State to control even the curriculum and classroom. For example, Meyer v. Nebraska, 262 U.S. 390"]262 U.S. 390 (1923), struck down a state law that forbade the teaching of modern foreign languages in public and private schools, and Epperson v. Arkansas, 393 U.S. 97 (1968), declared unconstitutional a state law that prohibited the teaching of the Darwinian theory of evolution in any state-supported school. But the current action does not require us to reenter this difficult terrain, which Meyer and Epperson traversed without apparent misgiving. For as this case is presented to us, it does not involve textbooks, or indeed any books that Island [p862] Trees students would be required to read. ^[18] Respondents do not seek in this Court to impose limitations upon their school Board's discretion to prescribe the curricula of the Island Trees schools. On the contrary, the only books at issue in this case are library books, books that, by their nature, are optional, rather than required, reading. Our adjudication of the present case thus does not intrude into the classroom, or into the compulsory courses taught there. Furthermore, even as to library books, the action before us does not involve the acquisition of books. Respondents have not sought to compel their school Board to add to the school library shelves any books that students desire to read. Rather, the only action challenged in this case is the removal from school libraries of books originally placed there by the school authorities, or without objection from them.

The substantive question before us is still further constrained by the procedural posture of this case. Petitioners were granted summary judgment by the District Court. The Court of Appeals reversed that judgment, and remanded the action for a trial on the merits of respondents' claims. We can reverse the judgment of the Court of Appeals, and [p863] grant petitioners' request for reinstatement of the summary judgment in their favor, only if we determine that "there is no genuine issue as to any material fact," and that petitioners are "entitled to a judgment as a matter of law." Fed.Rule Civ.Proc. 56(c). In making our determination, any doubt as to the existence of a genuine issue of material fact must be resolved against petitioners as the moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157-159 (1970). Furthermore,

[o]n summary judgment the inferences to be drawn from the underlying facts contained in [the affidavits, attached exhibits, and depositions submitted below] must be viewed in the light most favorable to the party opposing the motion.

United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

In sum, the issue before us in this case is a narrow one, both substantively and procedurally. It may best be restated as two distinct questions. First, does the First Amendment impose any limitations upon the discretion of petitioners to remove library books from the Island Trees High School and Junior High School? Second, if so, do the affidavits and other evidentiary materials before the District Court, construed most favorably to respondents, raise a genuine issue of fact whether petitioners might have exceeded those limitations? If we answer either of these questions in the negative, then we must reverse the judgment of the Court of Appeals and reinstate the District Court's summary judgment for petitioners. If we answer both questions in the affirmative, then we must affirm the judgment below. We examine these questions in turn.

II A

The Court has long recognized that local school boards have broad discretion in the management of school affairs. See, e.g., Meyer v. Nebraska, supra, at 402; Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925). Epperson v. Arkansas, [p864] supra, at 104, reaffirmed that, by and large, "public education in our Nation is committed to the control of state and local authorities," and that federal courts should not ordinarily "intervene in the resolution of conflicts which arise in the daily operation of school systems." Tinker v. Des Moines School Dist., 393 U.S. 503, 507 (1969), noted that we have "repeatedly emphasized . . . the comprehensive authority of the States and of school officials . . . to prescribe and control conduct in the schools." We have also acknowledged that public schools are vitally important "in the preparation of individuals for participation as citizens," and as vehicles for "inculcating fundamental values necessary to the maintenance of a democratic political system." Ambach v. Norwick, 441 U.S. 68, 76-77 (1979). We are therefore in full agreement with petitioners that local school boards must be permitted "to establish and apply their curriculum in such a way as to transmit community values," and that "there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political." Brief for Petitioners 10. ^[19]

At the same time, however, we have necessarily recognized that the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment. In West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), we held that, under the First Amendment, a student in a public school could not be compelled to salute the flag. We reasoned:

Boards of Education . . . have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional [p865] freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.

Id. at 637.

Later cases have consistently followed this rationale. Thus, Epperson v. Arkansas invalidated a State's anti-evolution statute as violative of the Establishment Clause, and reaffirmed the duty of federal courts

to apply the First Amendment's mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry.

393 U.S. at 104. And Tinker v. Des Moines School Dist., supra, held that a local school board had infringed the free speech rights of high school and junior high school students by suspending them from school for wearing black armbands in class as a protest against the Government's policy in Vietnam; we stated there that the "comprehensive authority . . . of school officials" must be exercised "consistent with fundamental constitutional safeguards." 393 U.S. at 507. In sum, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," id. at 506, and therefore local school boards must discharge their "important, delicate, and highly discretionary functions" within the limits and constraints of the First Amendment.

The nature of students' First Amendment rights in the context of this case requires further examination. West Virginia Board of Education v. Barnette, supra, is instructive. There the Court held that students' liberty of conscience could not be infringed in the name of "national unity" or "patriotism." 319 U.S. at 640-641. We explained that

the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

Id. at 642. [p866] Similarly, Tinker v. Des Moines School Dist., supra, held that students' rights to freedom of expression of their political views could not be abridged by reliance upon an "undifferentiated fear or apprehension of disturbance" arising from such expression:

Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949); and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this . . . often disputatious society.

393 U.S. at 508-509. In short, "First Amendment rights, applied in light of the special characteristics of the school environment, are available to . . . students." Id. at 506.

Of course, courts should not "intervene in the resolution of conflicts which arise in the daily operation of school systems" unless "basic constitutional values" are "directly and sharply implicate[d]" in those conflicts. Epperson v. Arkansas, 393 U.S. at 104. But we think that the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library. Our precedents have focused

not only on the role of the First Amendment in fostering individual self-expression, but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas.

First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978). And we have recognized that "the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge." Griswold v. Connecticut, 381 U.S. 479, 482 (1965). In keeping with this principle, [p867] we have held that, in a variety of contexts, "the Constitution protects the right to receive information and ideas." Stanley v. Georgia, 394 U.S. 557, 564 (1969); see Kleindienst v. Mandel, 408 U.S. 753, 762-763 (1972) (citing cases). This right is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution, in two senses. First, the right to receive ideas follows ineluctably from the sender's First Amendment right to send them: "The right of freedom of speech and press . . . embraces the right to distribute literature, and necessarily protects the right to receive it." Martin v. Struthers, 319 U.S. 141, 143 (1943) (citation omitted).

The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers, and no buyers.

Lamont v. Postmaster General, 381 U.S. 301, 308 (1965) (BRENNAN, J., concurring).

More importantly, the right to receive ideas is a necessary predicate to the recipient's meaningful exercise of his own rights of speech, press, and political freedom. Madison admonished us:

A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors must arm themselves with the power which knowledge gives.

9 Writings of James Madison 103 (G. Hunt ed.1910). ^[20] [p868] As we recognized in Tinker, students too are beneficiaries of this principle:

In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. . . . [S]chool officials cannot suppress "expressions of feeling with which they do not wish to contend."

393 U.S. at 511 (quoting Burnside v. Byars, 363 F.2d 744, 749 (CA5 1966)). In sum, just as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner, such access prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members. Of course all First Amendment rights accorded to students must be construed "in light of the special characteristics of the school environment." Tinker v. Des Moines School Dist., 393 U.S. at 506. But the special characteristics of the school library make that environment especially appropriate for the recognition of the First Amendment rights of students.

A school library, no less than any other public library, is "a place dedicated to quiet, to knowledge, and to beauty." Brown v. Louisiana, 383 U.S. 131, 142 (1966) (opinion of Fortas, J.). Keyishian v. Board of Regents, 385 U.S. 589 (1967), observed that "‘students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding.'" ^[21] The school library is the principal locus [p869] of such freedom. As one District Court has well put it, in the school library,

a student can literally explore the unknown, and discover areas of interest and thought not covered by the prescribed curriculum. . . . Th[e] student learns that a library is a place to test or expand upon ideas presented to him, in or out of the classroom.

Right to Read Defense Committee v. School Committee, 454 F.Supp. 703, 715 (Mass.1978). Petitioners emphasize the inculcative function of secondary education, and argue that they must be allowed unfettered discretion to "transmit community values" through the Island Trees schools. But that sweeping claim overlooks the unique role of the school library. It appears from the record that use of the Island Trees school libraries is completely voluntary on the part of students. Their selection of books from these libraries is entirely a matter of free choice; the libraries afford them an opportunity at self-education and individual enrichment that is wholly optional. Petitioners might well defend their claim of absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values. But we think that petitioners' reliance upon that duty is misplaced where, as here, they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom, into the school library and the regime of voluntary inquiry that there holds sway.

II B

In rejecting petitioners' claim of absolute discretion to remove books from their school libraries, we do not deny that local school boards have a substantial legitimate role to play in the determination of school library content. We thus must turn to the question of the extent to which the First Amendment places limitations upon the discretion of petitioners to remove books from their libraries. In this inquiry, we [p870] enjoy the guidance of several precedents. West Virginia Board of Education v. Barnette stated:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. . . . If there are any circumstances which permit an exception, they do not now occur to us.

319 U.S. at 642. This doctrine has been reaffirmed in later cases involving education. For example, Keyishian v. Board of Regents, supra, at 603, noted that "the First Amendment . . . does not tolerate laws that cast a pall of orthodoxy over the classroom;" see also Epperson v. Arkansas, 393 U.S. at 104-105. And Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274 (1977), recognized First Amendment limitations upon the discretion of a local school board to refuse to rehire a nontenured teacher. The school board in Mt. Healthy had declined to renew respondent Doyle's employment contract, in part because he had exercised his First Amendment rights. Although Doyle did not have tenure, and thus "could have been discharged for no reason whatever," Mt. Healthy held that he could

nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms.

Id. at 283-284. We held further that. once Doyle had shown

that his conduct was constitutionally protected, and that this conduct was a "substantial factor" . . . in the Board's decision not to rehire him,

the school board was obliged to show

by a preponderance of the evidence that it would have reached the same decision as to respondent's reemployment even in the absence of the protected conduct.

Id. at 287.

With respect to the present case, the message of these precedents is clear. 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 [p871] written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books. 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. Thus, whether petitioners' removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners' actions. If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners' decision, ^[22] then petitioners have exercised their discretion in violation of the Constitution. To permit such intentions to control official actions would be to encourage the precise sort of officially prescribed orthodoxy unequivocally condemned in Barnette. On the other hand, respondents implicitly concede that an unconstitutional motivation would not be demonstrated if it were shown that petitioners had decided to remove the books at issue because those books were pervasively vulgar. Tr. of Oral Arg. 36. And again, respondents concede that, if it were demonstrated that the removal decision was based solely upon the "educational suitability" of the books in question, then their removal would be "perfectly permissible." Id. at 53. In other words, in respondents' view, such motivations, if decisive of petitioners' actions, would not carry the danger of an official suppression of ideas, and thus would not violate respondents' First Amendment rights.

As noted earlier, nothing 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. Because we are concerned in this case with the suppression of ideas, our holding [p872] today affects only the discretion to remove books. In brief, we hold that 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." West Virginia Board of Education v. Barnette, 319 U.S. at 642. Such purposes stand inescapably condemned by our precedents.

II C

We now turn to the remaining question presented by this case: do the evidentiary materials that were before the District Court, when construed most favorably to respondents, raise a genuine issue of material fact whether petitioners exceeded constitutional limitations in exercising their discretion to remove the books from the school libraries? We conclude that the materials do raise such a question, which foreclose summary judgment in favor of petitioners.

Before the District Court, respondents claimed that petitioners' decision to remove the books "was based on [their] personal values, morals and tastes." App. 139. Respondents also claimed that petitioners objected to the books in part because excerpts from them were "anti-American." Id. at 140. The accuracy of these claims was partially conceded by petitioners, ^[23] and petitioners' own affidavits lent further support to respondents' claims. ^[24] In addition, the [p873] record developed in the District Court shows that, when petitioners offered their first public explanation for the removal of the books, they relied in part on the assertion that the removed books were "anti-American," and "offensive to . . . Americans in general." 474 F.Supp. at 390. ^[25] Furthermore, while the Book Review Committee appointed by petitioners was instructed to make its recommendations based upon criteria that appear on their face to be permissible — the books' "educational suitability," "good taste," "relevance," and "appropriateness to age and grade level," App. 67 — the Committee's recommendations that five of the books be retained and that only two be removed were essentially rejected by petitioners, without any statement of reasons for doing so. Finally, while petitioners originally defended their removal decision with the explanation that "these books contain obscenities, blasphemies, brutality, and perversion beyond description," 474 F.Supp. at 390, one of the books, A Reader for Writers, was removed even though it contained no such language. 638 F.2d at 428, n. 6 (Mansfield, J., dissenting). [p874]

Standing alone, this evidence respecting the substantive motivations behind petitioners' removal decision would not be decisive. This would be a very different case if the record demonstrated that petitioners had employed established, regular, and facially unbiased procedures for the review of controversial materials. But the actual record in the case before us suggests the exact opposite. Petitioners' removal procedures were vigorously challenged below by respondents, and the evidence on this issue sheds further light on the issue of petitioners' motivations. ^[26] Respondents alleged that, in making their removal decision petitioners ignored "the advice of literary experts," the views of "librarians and teachers within the Island Trees School system," the advice of the Superintendent of Schools, and the guidance of publications that rate books for junior and senior high school students. App. 128-129. Respondents also claimed that petitioners' decision was based solely on the fact that the books were named on the PONYU list received by petitioners Ahrens, Martin, and Hughes, and that petitioners "did not undertake an independent review of other books in the [school] libraries." Id. at 129-130. Evidence before the District Court lends support to these claims. The record shows that, immediately after petitioners first ordered the books removed from the library shelves, the Superintendent of Schools reminded them that "we already have a policy . . . designed expressly [p875] to handle such problems," and recommended that the removal decision be approached through this established channel. See n. 4, supra. But the Board disregarded the Superintendent's advice, and instead resorted to the extraordinary procedure of appointing a Book Review Committee — the advice of which was later rejected without explanation. In sum, respondents' allegations and some of the evidentiary materials presented below do not rule out the possibility that petitioners' removal procedures were highly irregular and ad hoc — the antithesis of those procedures that might tend to allay suspicions regarding petitioners' motivations.

Construing these claims, affidavit statements, and other evidentiary materials in a manner favorable to respondents, we cannot conclude that petitioners were "entitled to a judgment as a matter of law." The evidence plainly does not foreclose the possibility that petitioners' decision to remove the books rested decisively upon disagreement with constitutionally protected ideas in those books, or upon a desire on petitioners' part to impose upon the students of the Island Trees High School and Junior High School a political orthodoxy to which petitioners and their constituents adhered. Of course, some of the evidence before the District Court might lead a finder of fact to accept petitioners' claim that their removal decision was based upon constitutionally valid concerns. But that evidence, at most, creates a genuine issue of material fact on the critical question of the credibility of petitioners' justifications for their decision: on that issue, it simply cannot be said that there is no genuine issue as to any material fact.

The mandate shall issue forthwith.

Affirmed.

Notes

1. . The Amendment provides in pertinent part that "Congress shall make no law . . . abridging the freedom of speech, or of the press." It applies to the States by virtue of the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 666 (1925); Grosjean v. American Press Co., 297 U.S. 233, 244 (1936).
2. . The District Court noted, however, that petitioners "concede that the books are not obscene." 474 F.Supp. 387, 392 (EDNY 1979).
3. . The nine books in the High School library were: Slaughter House Five, by Kurt Vonnegut, Jr.; The Naked Ape, by Desmond Morris; Down These Mean Streets, by Piri Thomas; Best Short Stories of Negro Writers, edited by Langston Hughes; Go Ask Alice, of anonymous authorship; Laughing Boy, by Oliver LaFarge; Black Boy, by Richard Wright; A Hero Ain't Nothin' But A Sandwich, by Alice Childress; and Soul On Ice, by Eldridge Cleaver. The book in the Junior High School library was A Reader for Writers, edited by Jerome Archer. Still another listed book, The Fixer, by Bernard Malamud, was found to be included in the curriculum of a 12th grade literature course. 474 F.Supp. at 389, and nn. 4.
4. . The Superintendent of Schools objected to the Board's informal directive, noting:
5. . The Fixer, Laughing Boy, Black Boy, Go Ask Alice, and Best Short Stories by Negro Writers. 474 F.Supp. at 391, nn. 7.
6. . The Naked Ape and Down These Mean Streets. 474 F.Supp. at 391, n. 8.
7. . Soul On Ice and A Hero Ain't Nothin' But A Sandwich. 474 F.Supp. at 391, n. 9.
8. . A Reader for Writers. 474 F.Supp. at 391, n. 11. The reason given for this disposition was that all members of the Committee had not been able to read the book. Id. at 391.
9. . Slaughter House Five. 474 F.Supp. at 391, n. 10.
10. . Laughing Boy. 474 F.Supp. at 391, n. 12.
11. . Black Boy. 474 F.Supp. at 391, n. 13.
12. . As a result, the nine removed books could not be assigned or suggested to students in connection with school work. Id. at 391. However, teachers were not instructed to refrain from discussing the removed books or the ideas and positions expressed in them. App. 131.
13. . 474 F.Supp. at 396-397, citing Presidents Council, District 25 v. Community School Board No. 25, 457 F.2d 289 (CA2 1972); James v. Board of Education, 461 F.2d 566, 573 (CA2 1972); East Hartford Educational Assn. v. Board of Education, 562 F.2d 838, 856 (CA2 1977) (en banc).
14. . 474 F.Supp. at 395, quoting Presidents Council, District 25 v. Community School Board No. 25, supra, at 291 (in turn quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)).
15. . After criticizing "the criteria for removal" employed by petitioners as "suffer[ing] from excessive generality and overbreadth," and the procedures used by petitioners as "erratic, arbitrary and free-wheeling," Judge Sifton observed that "precision of regulation and sensitivity to First Amendment concerns" were "hardly established" by such procedures. 638 F.2d at 416.
16. . Judge Sifton stated that it could be inferred from the record that petitioners'
17. . Judge Mansfield dissented, id. at 419-432, based upon a distinctly different reading of the record developed in the District Court. According to Judge Mansfield, "the undisputed evidence of the motivation for the Board's action was the perfectly permissible ground that the books were indecent, in bad taste, and unsuitable for educational purposes." Id. at 430. He also asserted that, in reaching its decision "the Board [had] acted carefully, conscientiously and responsibly after according due process to all parties concerned." Id. at 422. Judge Mansfield concluded that
18. . Four of respondents' five causes of action complained of petitioners'
19. . Respondents also agree with these propositions. Tr. of Oral Arg. 28, 41.
20. . For a modern version of this observation, see A. Meiklejohn, Free Speech and Its Relation to Self-Government 26 (1948):
21. . 385 U.S. at 603, quoting Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (opinion of Warren, C.J.).
22. . By "decisive factor," we mean a "substantial factor" in the absence of which the opposite decision would have been reached. See Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 287 (1977).
23. . Petitioners acknowledged that their "evaluation of the suitability of the books was based on [their] personal values, morals, tastes and concepts of educational suitability." App. 142. But they did not accept, and thus apparently denied, respondents' assertion that some excerpts were objected to as "anti-American." Ibid.
24. . For example, petitioner Ahrens stated:
25. . When asked to give an example of "anti-Americanism" in the removed books, petitioners Ahrens and Martin both adverted to A Hero Ain't Nothin' But A Sandwich, which notes at one point that George Washington was a slaveholder. See A. Childress, A Hero Ain't Nothin' But A Sandwich 43 (1973); Deposition of Petitioner Ahrens 89; Deposition of Petitioner Martin 20-22. Petitioner Martin stated:
26. . We have recognized in numerous precedents that, when seeking to distinguish activities unprotected by the First Amendment from other, protected activities, the State must employ "sensitive tools" in order to achieve a precision of regulation that avoids the chilling of protected activities. See, e.g., Speiser v. Randall, 357 U.S. 513, 525-526 (1958); NAACP v. Button, 371 U.S. 415, 433 (1963); Keyishian v. Board of Regents, 385 U.S. 589, 603-604 (1967); Blount v. Rizzi, 400 U.S. 410, 417 (1971). In the case before us, the presence of such sensitive tools in petitioners' decisionmaking process would naturally indicate a concern on their part for the First Amendment rights of respondents; the absence of such tools might suggest a lack of such concern. See 638 F.2d at 416-417 (opinion of Sifton, J.).