The Oklahoma Bar Journal September 2022

as they comport with the demands of the First Amendment. Though discretion applied to curriculum, the “regime of voluntary inquiry” in school libraries did not lend itself to the same level of “absolute discretion.” 20 Traditional class room instruction is one where the teacher teaches, and the students listen; however, students are free to choose what they read from the school library. Before or after school or if there is free time, they can enter the library and make their own choices on what they want to learn and read what interests them either while still at school or at home on their own time. In short, it gives stu dents access to ideas from within the “nurseries of democracy.” 21 Instead, the plurality found that any discretion within the library setting cannot be “exercised in a narrowly partisan or political manner” or driven by a desire to remove ideas with which the board members might dis agree. 22 As emphasized by Justice Blackmun in his concurring opinion, decisions to censor ideas by removing school library books cannot be driven by a desire for political or societal orthodoxy.

In Pico , when the plurality examined the particular facts of the case in light of the motion for summary judgment standard, they found the evidence raised an issue of material fact as to whether the board members exceeded their discretion in removing the listed books. Though the board had an established policy, it ignored, without reason, the committee’s recommendation to remove only two of the books on the list. As Justice Brennan explained, had the record demonstrated that the board “had employed established, regular, and facially unbiased pro cedures for the review of contro versial materials,” this would have been a very different case. Yet, the board had agreed their decision was based, at least in part, on the books being “anti-American” and on their own personal values, morals and tastes, not any particu lar pedagogical concern. Justice Brennan’s opinion was joined by two other justices, with Justice Harry Blackmun joining in part and concurring in part. Justice Byron White concurred in result, but his concurrence was based on the procedural posture of the case. As no opinion was joined by a majority of the court, Pico is not a binding opinion; however, a framework can still be drawn from Pico that would appear to be in line with the court’s current jurispru dence. In fact, lower courts have continued to apply the plurality’s reasoning in Pico and have looked at whether the motivating factor for the removal was a disagree ment over ideas in the book or some pedagogical concern such as accuracy, “pervasive vulgar ity” or lewdness when taken in the context of the entire text. 23 Within our own 10th Circuit, the court seemed to accept the Pico decision as being the rule of the court. 24 Though there was no

reversed and the case went on appeal to the U.S. Supreme Court. On consideration by the court, a plurality agreed the board’s removal of the books violated the First Amendment free speech clause. 17 The plurality referred to Tinker for the fact that students maintain their rights to freedom of speech “at the schoolhouse gate” and found that these rights can be implicated when a school attempts to remove books from their librar ies. Not only does the Constitution protect speech but also the right to receive information and ideas. 18 Citing West Virginia Board of Education v. Barnette , the court stated that schools could not ban books from library shelves “sim ply 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 opinion.’” 19 The plurality made clear that the consideration of library materials is separate and apart from a school’s determina tion on curriculum. Within the curriculum, a school or the state has a legitimate inter est in promoting traditional moral, social and political values, so long

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THE OKLAHOMA BAR JOURNAL