The Dec. 7 article asks, "How Would This Supreme Court Rule on Book Banning?," and says this in paragraphs 4, 5, and 7 (out of 7) (emphasis added):
All this raises the question of what the current Supreme Court would do if it were to decide to take up one of the simmering book-ban cases. The key precedent on the issue is Island Trees School District v. Pico, from 1982. That case arose out of the removal of ten books from public middle-school and high-school libraries in a school district on Long Island, New York, by the local board of education. Though Island Trees is forty years old, the case concerns books addressing the same themes included in today's bans: Richard Wright's "Black Boy," Kurt Vonnegut's "Slaughterhouse-Five," Eldridge Cleaver's "Soul on Ice," and titles by Bernard Malamud and Alice Childress. The vice-president of the local board, a retired New York City police sergeant, had deemed the books obscene, "anti-American," and "just plain filthy," though he admitted that he hadn't read them. In fact, he heard about them at a meeting of an organization called Parents of New York United (P.O.N.Y.U.), a conservative group from Watkins Glen, in far-western New York, which had compiled a list of objectionable books and given it to the Long Island school-board members. P.O.N.Y.U. is a precursor of sorts for Moms for Liberty, the modern conservative book-banning group from Florida. (Indeed, Governor Reynolds spoke alongside other state Republican lawmakers at an event hosted by Moms for Liberty at a middle school in Des Moines just months before passing the Iowa law.)
The Island Trees case made its way to the Supreme Court after a district-court judge in Brooklyn, appointed by Ronald Reagan, ruled in favor of the school board, finding that students had no right to access the books in question. The Second Circuit Court of Appeals reversed that ruling, and the Supreme Court took up the subsequent appeal. There, in a majority decision written by Justice William Brennan, the Court invalidated the ban, echoing a prior ruling that students do not surrender their First Amendment rights "at the schoolhouse gate." But the over-all ruling is hardly a model of judicial clarity. The decision was 5–4, with seven separate written opinions, including four dissents. The majority noted that citizens, including minors, have a right to receive information and ideas. Nevertheless, the opinion is limited to the removal of books that are already in a library, and the Court makes explicit that it is not ruling that school libraries must acquire any particular books. Moreover, Chief Justice Warren Burger wrote a dissent in which he made the evergreen argument that parents should have "influence, if not control" over their children's education, equating parental control to "democracy in a microcosm." He also suggested that children who are denied books in school libraries are not prevented from obtaining them: they can simply go to a bookstore and buy them. Finally and, perhaps, ominously, Burger asserts that there is no constitutional requirement that schools maintain libraries at all. "The board," he wrote, "could wholly dispense with the school library, so far as the First Amendment is concerned." …
This Supreme Court has been protective of some speech, particularly religious speech. (See Justice Neil Gorsuch's opinions upholding a public-high-school football coach's right to hold group prayer on the fifty-yard line, and in favor of a wedding-Web-site designer who feared being forced to work for same-sex couples.) But it's not clear what the current Court would do when the desire to ban speech—or, in the question of book banning, to restrict access to certain ideas—is articulated as a parental right. We know, from the Dobbs decision, that the conservative Justices are not averse to overruling settled precedent, even with regard to a constitutional right. And what about the voices of fundamentalist religious groups who are certain to weigh in on behalf of bans? Will the Court grant deference to a religion-based desire to restrict the information that all public-school students can have access to? It may be that those who favor bans will find a more receptive bench now than they did four decades ago.
But I think this is mistaken, because there was no majority decision in Pico, no settled precedent on the subject, and no majority judgment that children have a right to receive information from a school library.
