The Oklahoma Bar Journal September 2022

the court found that a law com pelling students to salute the U.S. flag and recite the pledge was a violation of their First Amendment rights. 9 Later, in Tinker v. Des Moines Community Independent School District, the court strongly reiterated those constitutional pro tections when it famously declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 10 When stu dents were suspended for wearing black arm bands to protest the U.S.’ involvement in Vietnam, the court affirmed that students’ First Amendment rights remain, even within the school setting. Under the standard established in Tinker , student speech could only be restricted if it created a substantial disruption to the school’s ability to carry out its educational program. In the decades following Tinker , the court considered other situ ations involving student speech and created additional exceptions to when student speech could be limited. In Bethel v. Fraser , the court considered student speech that was filled with sexual innuendos and delivered at a student assembly. Looking to Tinker , the court stated the First Amendment does not require that public schools sur render control to students; rather, students’ rights are curtailed by the schools’ “countervailing interest in teaching students the boundaries of socially appropriate behavior.” 11 Lewd or vulgar language could be prohibited within the school setting, even though an adult’s speech might be protected in a sim ilar scenario. Later, in Hazelwood v. Kuhlmeier and Morse v. Frederick, the court created two additional excep tions: school sponsored/curricular speech and speech advocating illegal activity. 12

those protections, parents, stu dents and school employees have successfully challenged a num ber of practices and restrictions, including government-sponsored prayer and other religious obser vances, required recitation of the Pledge of Allegiance and certain compulsory education require ments. 5 Even within the highly discretionary area of curriculum, courts have struck down laws that prevent ideas from being taught within the classroom based on a violation of the First Amendment. 6 Oklahoma public schools have seen their own fair share of book removals. In 1960, Tulsa Public Schools terminated a teacher who had assigned The Catcher in the Rye (admittedly a book whose under age protagonist drinks, curses and hires a prostitute, though doing little else than talking) to her 11th grade English class. Though she was later reinstated, she resigned, and the book was removed. 7 More recently, from the period of July 1, 2021, to March 31, 2022, two Oklahoma school districts banned 43 books from their libraries. 8 Some of those titles included Brave New World , Of Mice and Men , Lord of the Flies , I Know Why the Caged Bird Sings and The Bluest Eye , books that are considered classic literary works. As in the examples above, private citizens have their own pro tected right to object, but what legal standard applies when parents or the school board demand materials be removed from the school library, and are the First Amendment rights of students implicated? In West Virginia Board of Education v. Barnette , the court recognized that students maintain some constitutional protections within the public school setting. Pronouncing that, “No official … can prescribe what shall be ortho dox in politics, nationalism, reli gion or other matters of opinion,”

BOARD OF EDUCATION V. PICO It wasn’t until 1982 that the court first considered a challenge to the removal of materials from a school library. Unfortunately, the court’s decision offered little in terms of a clear test and resulted in a plurality determination with out a binding opinion. In Board of Education v. Pico, a Long Island public school board removed 11 titles from the school library that they considered to be “anti-American, anti-Christian, anti-Semitic, and just plain filthy.” 13 The board members had been provided with lists of “objectionable” books while attending a conference for parents concerned with education legis lation. When the board members discovered some of those books were in their own school libraries, they directed that the books be removed so they could personally review them. 14 Additionally, the board appointed a “Book Review Committee” consisting of parents and school personnel to make a recommendation to the board on the appropriateness of the books. The committee was instructed to consider educational suitability, good taste, relevance and appro priateness to age and grade level in making their recommendation. 15 When the committee could only agree that two of the 11 books on the list be removed from the librar ies, the board rejected the commit tee’s recommendation, returning only one title to the shelves and making another subject to parent approval. The nine other books on the list were banned, though the board gave no explanation for why it ignored the commit tee’s recommendation. 16 When students in the district appealed, the trial court granted summary judgment for the board members relying on the line of cases that curricular decisions were given great discretion. The 2nd Circuit

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THE OKLAHOMA BAR JOURNAL