 |
 |
 |
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).
JUSTICE BLACKMUN, concurring in part and concurring in the judgment.
JUSTICE WHITE, concurring in the judgment.
CHIEF JUSTICE BURGER, with whom JUSTICE POWELL, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join, dissenting.
JUSTICE REHNQUIST, with whom THE
CHIEF JUSTICE and JUSTICE POWELL join, dissenting.
JUSTICE POWELL, dissenting.
The plurality opinion today rejects a basic concept of public
school education in our country: that the States and locally elected
school boards should have the responsibility for determining the
educational policy of the public schools. After today's decision
any junior high school student, by instituting a suit against
a school board or teacher, may invite a judge to overrule an educational
decision by the official body designated by the people to operate
the schools.
I
School boards are uniquely local and democratic institutions.
Unlike the governing bodies of cities and counties, school boards
have only one responsibility: the education of the youth of our
country during their most formative and impressionable years.
Apart from health, no subject is closer to the hearts of parents
than their children's education during those years. For these
reasons, the governance of elementary and secondary education
traditionally has been placed in the hands of a local board, responsible
locally to the parents and citizens of school districts. Through
parent-teacher associations (PTA's), and even less formal arrangements
that vary with schools, parents are informed and often may influence
decisions of the board. Frequently, parents know the teachers
and visit classes. It is fair to say that no single agency of
government at any level is closer to the people whom it serves
than the typical school board.
I therefore view today's decision with genuine dismay. Whatever
the final outcome of this suit and suits like it, the resolution
of educational policy decisions through litigation, and the exposure
of school board members to liability for such decisions, can be
expected to corrode the school board's authority and effectiveness.
As is evident from the generality of the plurality's "standard"
for judicial review, the decision as to the educational worth
of a book is a highly subjective one. Judges rarely are as competent
as school authorities to make this decision; nor are judges responsive
to the parents and people of the school district. 1
The new constitutional right, announced by the plurality, is described
as a "right to receive ideas" in a school. Ante, at
867. As the dissenting opinions of THE CHIEF JUSTICE and JUSTICE
REHNQUIST so powerfully demonstrate, however, this newfound right
finds no support in the First Amendment precedents of this Court.
And even apart from the inappropriateness of judicial oversight
of educational policy, the new constitutional right is framed
in terms that approach a meaningless generalization. It affords
little guidance to courts, if they -- as the plurality now authorizes
them -- are to oversee the inculcation of ideas. The plurality
does announce the following standard: A school board's "discretion
may not be exercised in a narrowly partisan or political manner."
Ante, at 870. But this is a standardless standard that affords
no more than subjective guidance to school boards, their counsel,
and to courts that now will be required to decide whether a particular
decision was made in a "narrowly partisan or political manner."
Even the "chancellor's foot" standard in ancient equity
jurisdiction was never this fuzzy.
As JUSTICE REHNQUIST tellingly observes, how does one limit --
on a principled basis -- today's new constitutional right? If
a 14-year-old child may challenge a school board's decision to
remove a book from the library, upon what theory is a court to
prevent a like challenge to a school board's decision not to purchase
that identical book? And at the even more "sensitive"
level of "receiving ideas," does today's decision entitle
student oversight of which courses may be added or removed from
the curriculum, or even of what a particular teacher elects to
teach or not teach in the classroom? Is not the "right to
receive ideas" as much -- or indeed even more -- implicated
in these educational questions? 2
II
The plurality's reasoning is marked by contradiction. It purports
to acknowledge the traditional role of school boards and parents
in deciding what should be taught in the schools. It states the
truism that the 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.'" Ante, at 864. Yet when
a school board, as in this case, takes its responsibilities seriously
and seeks to decide what the fundamental values are that should
be imparted, the plurality finds a constitutional violation.
Just this Term the Court held, in an opinion I joined, that the
children of illegal aliens must be permitted to attend the public
schools. See Plyler v. Doe, ante, p. 202. Quoting from earlier
opinions, the Court noted that the "'public [school is] a
most vital civic institution for the preservation of democratic
system of government'" and that the public schools are "the
primary vehicle for transmitting 'the values on which our society
rests.'" Ante, at 221. By denying to illegal aliens the opportunity
"to absorb the values and skills upon which our social order
rests" the law under review placed a lifelong disability
upon these illegal alien children. Ibid.
Today the plurality drains much of the content from these apt
phrases. A school board's attempt to instill in its students the
ideas and values on which a democratic system depends is viewed
as an impermissible suppression of other ideas and values on which
other systems of government and other societies thrive. Books
may not be removed because they are indecent; extol violence,
intolerance, and racism; or degrade the dignity of the individual.
Human history, not the least that of the 20th century, records
the power and political life of these very ideas. But they are
not our ideas or values. Although I would leave this educational
decision to the duly constituted board, I certainly would not
require a school board to promote ideas and values repugnant to
a democratic society or to teach such values to children.
In different contexts and in different times, the destruction
of written materials has been the symbol of despotism and intolerance.
But the removal of nine vulgar or racist books from a high school
library by a concerned local school board does not raise this
specter. For me, today's decision symbolizes a debilitating encroachment
upon the institutions of a free people.
Attached as an Appendix hereto is Judge Mansfield's summary of
excerpts from the books at issue in this case.
APPENDIX TO OPINION OF POWELL, J.,
DISSENTING
"The excerpts which led the Board to look into the educational
suitability of the books in question are set out (with minor corrections
after comparison with the text of the books themselves) below.
The pagination and the underlinings are retained from the original
report used by the board. In newer editions of some of the books,
the quotes appear at different pages.
"1) SOUL ON ICE by Eldridge Cleaver
PAGE QUOTE
157-158 '. . . There are white men who will pay you to fuck their
wives. They approach you and say, "How would you like to
fuck a white woman?" "What is this?" you ask. "On
the up-and-up," he assures you. "It's all right. She's
my wife. She needs black rod, is all. She has to have it. It's
like a medicine or drug to her. She has to have it. I'll pay you.
It's all on the level, no trick involved. Interested?" You
go with him and he drives you to their home. The three of you
go into the bedroom. There is a certain type who will leave you
and his wife alone and tell you to pile her real good. After it
is all over, he will pay you and drive you to wherever you want
to go. Then there are some who like to peep at you through a keyhole
and watch you have his woman, or peep at you through a window,
or lie under the bed and listen to the creaking of the bed as
you work out. There is another type who likes to masturbate while
he stands beside the bed and watches you pile her. There is the
type who likes to eat his woman up after you get through piling
her. And there is the type who only wants you to pile her for
a little while, just long enough to thaw her out and kick her
motor over and arouse her to heat, then he wants you to jump off
real quick and he will jump onto her and together they can make
it from there by themselves.'
"2) A HERO AIN'T NOTHING BUT A SANDWICH by Alice Childress
PAGE QUOTE
10 'Hell, no! Fuck the society.'
64-65 'The hell with the junkie, the wino, the capitalist, the
welfare checks, the world . . . yeah, and fuck you too!'
75-76 'They can have back the spread and curtains, I'm too old
for them fuckin bunnies anyway.'
"3) THE FIXER by Bernard Malamud
PAGE QUOTE
52 'What do you think goes on in the wagon at night: Are the drivers
on their knees fucking their mothers?'
90 'Fuck yourself, said the blinker, etc.'
92 'Who else would do anything like that but a mother-fucking
Zhid?'
146 'No more noise out of you or I'll shoot your Jew cock off.'
189 'Also there's a lot of fucking in the Old Testament, so how
is that religious?'
192 'You better go fuck yourself, Bok, said Kogin, I'm onto your
Jew tricks.'
215 'Ding-dong giddyap. A Jew's cock's in the devil's hock.'
216 'You cocksucker Zhid, I ought make you lick it up off the
floor.'
"4) GO ASK ALICE by Anonymous
PAGE QUOTE
31 'I wonder if sex without acid could be so exciting, so wonderful,
so indescribable. I always thought it just took a minute, or that
it would be like dogs mating.'
47 'Chris and I walked into Richie and Ted's apartment to find
the bastards stoned and making love to each other . . . low class
queer.'
81 'shitty, goddamned, pissing, ass, goddamned beJesus, screwing
life's, ass, shit. Doris was ten and had humped with who knows
how many men in between . . . her current stepfather started having
sex with her but good . . . sonofabitch balling her'
83 'but now when I face a girl its like facing a boy. I get all
excited and turned on. I want to screw with the girl. . . .'
84 'I'd rather screw with a guy . . . sometimes I want one of
the girls to kiss me. I want her to touch me, to have her sleep
under me.'
84 'Another day, another blow job . . . If I don't give Big Ass
a blow he'll cut off my supply . . . and LittleJacon is yelling,
"Mama, Daddy can't come now. He's humping Carla."
85 'Shit, goddamn, goddamn prick, son-of-a-bitch, ass, pissed,
bastard, goddamn, bullshit
94 'I hope you have a nice orgasm with your dog tonight.'
110 'You fucking Miss Polly pure
117 'Then he said that all I needed was a good fuck.'
146 'It might be great because I'm practically a virgin in the
sense that I've never had sex except when I've been stoned. .
. .'
"5) SLAUGHTERHOUSE FIVE by Kurt Vonnegut, Jr.
PAGE QUOTE
29 'Get out of the road, you dumb motherfucker.' The last word
was still a novelty in the speech of white people in 1944.
It was fresh and astonishing to Billy, who had never fucked anybody
. . .'
32 'You stake a guy out on an anthill in the desert -- see? He's
facing upward, and you put honey all over his balls and pecker,
and you cut off his eyelids so he has to stare at the sun till
he dies.'
34 'He had a prophylactic kit containing two tough condoms 'For
the prevention of disease only!' . . . He had a dirty picture
of a woman attempting sexual intercourse with a shetland pony.'
94 & 95 'But the Gospels actually taught this: Before you
kill somebody, make absolutely sure he isn't well connected .
. . The flaw in the Christ stories, said the visitor from outer
space, was that Christ who didn't look like much, was actually
the son of the Most Powerful Being in the Universe. Readers understood
that, so, when they came to the crucifixion, they naturally thought
. . . Oh boy -- they sure picked the wrong guy to lynch this time!
And that thought had a brother: There are right people to lynch.
People not well connected . . . . The visitor from outer space
made a gift to Earth of a new Gospel. In it, Jesus really WAS
a nobody, and a pain in the neck to a lot of people with better
connections then he had . . . . So the people amused themselves
one day by nailing him to a cross and planting the cross in the
ground. There couldn't possibly be any repercussions, the lynchers
thought . . . since the new Gospel hammered home again and again
what a nobody Jesus was. And then just before the nobody died
. . . . The voice of God came crashing down. He told the people
that he was adopting the bum as his son . . . God said this: From
this moment on, He will punish horribly anybody who torments a
bum who has no connections.'
99 'They told him that there could be no Earthling babies without
male homosexuals. There could be babies without female homosexuals.'
120 'Why don't you go fuck yourself? Don't think I haven't tried
. . . he was going to have revenge, and that revenge was sweet
. . . It's the sweetest thing there is, said Lazzaro. People fuck
with me, he said, and Jesus Christ are they ever fucking sorry.'
122 'And he'll pull out a gun and shoot his pecker off. The stranger'll
let him think a couple of seconds about who Paul Lazzaro is and
what life's gonna be like without a pecker. Then he'll shoot him
once in the guts and walk away. . . . He died on account of this
silly cocksucker here. So I promised him I'd have this silly cocksucker
shot after the war.'
134 'In my prison cell I sit . . . With my britches full of shit,
And my balls are bouncing gently on the floor. And I see the bloody
snag when she bit me in the bag . . . Oh, I'll never fuck a Polack
any more.'
173 'And the peckers of the young men would still be semierect,
and their muscles would be bulging like cannonballs.'
175 'They didn't have hard-ons . . . Everybody else did.'
177 'The magazine, which was published for lonesome men to jerk
off to.'
178 'and one critic said. . . . 'To describe blow-jobs artistically."
"6) THE BEST SHORT STORIES BY NEGRO WRITERS Ed. by Langston
Hughes
PAGE QUOTE
176 'like bat's shit and camel piss,'
228 'that no-count bitch of a daughter of yours is up there up
North making a whore of herself.'
237 'they made her get out and stand in front of the headlights
of the car and pull down her pants and raise her dress -- they
said that was the only way they could be sure. And you can imagine
what they said and what they did -- .'
303 'You need some pussy. Come on, let's go up to the whore house
on the hill.'
'Oh, these bastards, these bastards, this God damned Army and
the bastards in it. The sons of bitches!'
436 'he produced a brown rag doll, looked at her again, then grabbed
the doll by its legs and tore it part way up the middle. Then
he jammed his finger into the rip between the doll's legs. The
other men laughed. . . .'
444 'The pimps, hustlers, lesbians, and others trying to misuse
me.'
462 'But she had straight firm legs and her breasts were small
and upright. No doubt if she'd had children her breasts would
be hanging like little empty purses.'
464 'She first became aware of the warm tense nipples on her breasts.
Her hands went up gently to clam them.' 'In profile, his penis
hung like a stout tassle. She could even tell that he was circumcised.'
406 'Cadillac Bill was busy following Luheaster around, rubbing
her stomach and saying, "Magic Stomach, Magic Stomach, bring
me a little baby cadillac."' 'One of the girls went upstairs
with Red Top and stayed for about forty-five minutes.'
"7) BLACK BOY by Richard Wright
PAGE QUOTE
70-71 'We black children -- seven or eight or nine years of age
-- used to run to the Jew's store and shout:
. . . Bloody Christ Killers
Never trust a Jew
Bloody Christ Killers
What won't a Jew do . . .
Red, white and blue
Your pa was a Jew
Your ma a dirty dago
What the hell is you?'
265 'Crush that nigger's nuts, nigger!' 'Hit that nigger!'
'Aw, fight, you goddam niggers!' 'Sock 'im, in his f-k-g-piece!'
'Make 'im bleed!'
"8) LAUGHING BOY by Oliver LaFarge
PAGE QUOTE
38 'I'll tell you, she is all bad; for two bits she will do the
worst thing.'
258-9 'I was frightened when he wanted me to lie with him, but
he made me feel all right. He knew all about how to make women
forget themselves, that man.'
"9) THE NAKED APE by Desmond Morris
PAGE QUOTE
73-74 'Also, the frontal approach provides the maximum possibility
for stimulation of the female's clitoris during the pelvic thrusting
of the male. It is true that it will be passively, stimulated
by the pulling effect of the male's thrusts, regardless of his
body position in relation to the female, but in a face-to-face
mating there will in addition be the direct rhythmic pressure
of the male's pubic region on to the clitoral area, and this will
considerably heighten the stimulation . . .' 'So it seems plausible
to consider that face-to-face copulation is basic to our species.
There are, of course, a number of variations that do not eliminate
the frontal element: male above, female above, side by side, squatting,
standing, and so on, but the most efficient and commonly used
one is with both partners horizontal, the male above the female.
. . .'
80 '. . . This broadening of the penis results in the female's
external genitals being subjected to much more pulling and pushing
during the performance of pelvic thrusts. With each inward thrust
of the penis, the clitoral region is pulled downwards and then
with each withdrawal, it moves up again. Add to this the rhythmic
pressure being exerted on the clitoris region by the pubic region
of the frontally copulating male, and you have a repeated massaging
of the clitoris that -- were she a male -- would virtually be
masturbatory.'
94-99 '. . . If either males or females cannot for some reason
obtain sexual access to their opposite numbers, they will find
sexual outlets in other ways. They may use other members of their
own sex, or they may even use members of other species, or they
may masturbate. . . .'
"10) READER FOR WRITERS . . ."
638 F.2d 404, 419-422, n. 1 (CA2 1980) (Mansfield, J., dissenting).
---- Begin EndNotes ----
1 The plurality speaks of the
need for "sensitive" decisionmaking, pursuant to "regular"
procedures. See ante, at 874, n. 26, and 875. One wonders what
indeed does this mean. In this case, for example, the board did
not act precipitously. It simply did not agree with the recommendations
of a committee it had appointed. Would the plurality require --
as a constitutional matter -- that the board delegate unreviewable
authority to such a committee?
2 The plurality suggests that
the books in a school library derive special protection under
the Constitution because the school library is a place in which
students exercise unlimited choice. See ante, at 868-869. This
suggestion is without support in law or fact. It is contradicted
by this very case. The school board in this case does not view
the school library as a place in which students pick from an unlimited
range of books -- some of which may be inappropriate for young
people. Rather, the school library is analogous to an assigned
reading list within which students may exercise a degree of choice.
|
|
|
© 1995 - 2009, Touro Law Center