Pico and K-2 schools

[Anuj Desai]

For anyone still interested in discussing this topic, Eugene and I had a
*long* off-list exchange about it that I've reproduced (in slightly edited
form) below.  The first message is mine interspersed with his responses, and
the second is my response to his response.  I'd welcome any comments,
whether off-list or on.

**Message 1**:

> > > I've been following this thread on conlawprof and wondered whether 
> > > reframing the question might prove useful.  It strikes me that one 
> > > way to view the constitutional question is to view it through the 
> > > lens of a clash between the
> > > *bureaucratization* of education/libraries and the
> > > *politicization* of education/libraries.  This requires
> > > distinguishing among government officials, between those who 
> > > are "politicians" and those who are "bureaucrats." [My point 
> > > is purely descriptive and so I've tried to describe the 
> > > concepts with words that could both be viewed as equally 
> > > pejorative (at least to some) so as to avoid skewing the 
> > > debate.  You can decide whether I've been successful.]

	My tentative thinking is that such a distinction would be a mistake.
Some people do make it, but I don't think courts should make it, at least as
a matter of constitutional law.  As you point out, bureaucrats have their
own political views; it's not that their decision is purely technoratic and
apolitical, and therefore good -- rather, it involves value judgments of
their own, judgments that are going to be at least partly driven by their
ideologies.  And if that's so, then why say, as a constitutional matter,
that these ideological judgments should be made by democratically
unaccountable bureaucrats rather than by democratically accountable board of
education members?

> > > To start, I think you are completely correct that many people 
> > > overstate the meaning of *Pico*.  This of course is the advantage 
> > > Justice Brennan had in writing the "principal" opinion.  [In fact, 
> > > one could even go further than you do and characterize it as 
> > > 3-1-1-4, rather than 4-1-4.  I often teach students in
> > > library school, and they just adore all the "right to 
> > > receive" language in Brennan's opinion.  It takes some doing to 
> > > convince them that three votes isn't really worth that much, since
> > > they seem to think it's a "Supreme Court" opinion, not "just"
> > > a concurrence.  I never use the word "plurality," since Chief 
> > > Justice Burger's dissent is as much - if not more - a "plurality" 
> > > opinion, since it had 4 votes for *all* of its reasoning!]  
> > > Nonetheless, I do think it's useful to look at
> > > *Pico* in part because I think we can read a little bit more
> > > into Justice White's opinion than you do but also because - 
> > > as Mark Rahdert implies when referring to Justice Blackmun's 
> > > opinion - the opinions do characterize the issue in ways that 
> > > continue to have resonance to many people, including (I 
> > > suspect) today's Court (notwithstanding the fact that Justice 
> > > Stevens is the only one left from the *Pico* Court).  
> > > 
> > > As for Justice White's opinion, I think the best way to 
> > > characterize it is as Justice Rehnquist does, as the equivalent of 
> > > a cert. denial on the merits.  Perhaps we might call it a "cert. 
> > > denial with precedential effect". As you say, Justice White simply 
> > > voted for remand.  But, he did vote
> > > - on the merits - for reversal of a summary judgment in a 
> > > circumstance in which the factual dispute was one about the 
> > > motivation of the school board as to why they removed the books 
> > > from the libraries.  So, although he explicitly eschews deciding 
> > > any question about the 1A, he does approve of the Second Circuit's 
> > > decision on the merits, and thus the Supreme Court's decision can 
> > > be said to *hold* that the factual dispute about motivation is a 
> > > *material* fact with respect to the students' constitutional 
> > > claim.

	I think we generally agree about this, but I'd quibble with the last
sentence; it seems to me that Justice White is only saying that the factual
dispute about motivation *may end up* being material to the ultimate test.
He says that he "see[s] no necessity" for "issu[ing] a dissertation on the
extent to which the First Amendment limits the discretion of the school
board to remove books from the school library," and suggests that if there
is a finding that the books were removed based on viewpoint, only then would
it be necessary "to address the First Amendment issues that may then be
presented."

> > > I don't want to make too big of a deal about this, but it gets to 
> > > my key point, which is that I think *Pico* is primarily about the 
> > > motivation of the government actors. What I think is unstated in 
> > > *Pico* but is implied, at the very least in Justice Brennan's 
> > > statement of the facts (e.g. "the Board gave an 'unofficial 
> > > direction' that the listed books be removed"; "The Board gave no 
> > > reasons for rejecting the recommendations of the Committee that it 
> > > had appointed."), is that this particular book removal was highly
> > > irregular - even among book removals.  So, I do think the 
> > > case turned on this fact:  because the decision about these 
> > > books took place outside the ordinary procedures set up to 
> > > make school library collection decisions, the courts should 
> > > be skeptical of giving it the kind of 1A deference that we 
> > > ordinarily give to school or library officials.  In other 
> > > words, part of what the plurality is willing to defer to is 
> > > the *process* by which school library collection decisions 
> > > are made; they are not simply deferring to the "political 
> > > branches."  Put another way, questioning the motivation of 
> > > the school board members is implicitly saying that the school 
> > > board members ought to be deferring to the people whom they 
> > > hire to make these decisions, the bureaucrats.  This gets to 
> > > one difference between acquisition and removal beyond Brennan 
> > > or Blackmun (or Souter in *ALA v. US*, i.e. "we can smell a 
> > > rat" when there's a book *removal*), one that I suspect is
> > > important:  among government officials, *who* is making the 
> > > decision, bureaucrats or politicians?  Brennan never says 
> > > this of course, because there really isn't any support for 
> > > it, and it seems to go against the grain of how most people 
> > > view the deference here (i.e. deference to the local, 
> > > politically accountable government officials).  But on this 
> > > view we might even call the bureaucrats the "experts" and in 
> > > this way analogize the case to administrative law deference 
> > > based on "expertise."  What bothers some people about these 
> > > scenarios is the politicization of the process, not the 
> > > particular results (although in some cases I have no doubt 
> > > that they don't like the results either).
> > > 
> > > The key thing, then, is that the debate (in both *Pico* and in the 
> > > example you gave) is largely about who should be making decisions 
> > > about the content of the school library, but the debate is not 
> > > simply whether courts should be substituting their judgment for 
> > > that of the elected, politically accountable government officials, 
> > > but rather whether "bureaucrats" or "politicians" should be making 
> > > those decisions.  Those who find these book-removal situations 
> > > constitutionally problematic are largely opposing the 
> > > "politicization" of education and libraries, while those who don't 
> > > are largely saying that the education and library "bureaucrats" 
> > > need to have political constraints placed upon them when those 
> > > bureaucrats go beyond some politically acceptable outer boundary.  
> > > [It turns out, of course, that this debate also generally tracks 
> > > political orientation, since it is well-known that professionals 
> > > in the field of education and library studies are largely to the 
> > > left of the politicians.  I do think as an empirical matter they 
> > > are generally very conscious of that fact and thus go out of
> > > their way to overcome that bias - as best they can - in their 
> > > collection decisions, but the hypo you posited in your first 
> > > e-mail - i.e. pro-apartheid book - seems less likely as a 
> > > factual matter in part because of that bias.]  So, the First 
> > > Amendment question can largely be boiled down to one about 
> > > how much we want the courts to constrain politicians 
> > > vis-a-vis the education and library bureaucrats, rather than 
> > > how much we want the courts to constrain "school officials" 
> > > (i.e. thought of as a single category that includes both 
> > > elected officials and civil servants).
> > >

**Message 2**:

My own sense is that ultimately you're right.  If anything, in circumstances
in which a school board does something highly controversial, the public
input into the process and the public conversation about the role of the
schools are likely to be very high.  Relatedly, as Justice Rehnquist pointed
out in *Pico*, "following the removal from the school library of the books
at issue in this case, the local public library put all nine books on
display for public inspection."  His point was that this rendered the school
library removal irrelevant from the perspective of the books' availability.
My point would be that this would be an example of the public library
officials taking part in the democratic dialogue occasioned by the school
board's decision, an altogether good thing.

Having said that, I do think there are reasons to favor the bureaucrats over
the politicians.  The biggest reason is that, overall, the bureaucrats have
a process for making the decisions that is far more likely to promote First
Amendment values.  Their process is generally a comprehensive one, designed
for the whole curriculum/library collection, not piecemeal on a single book
basis.  As I mentioned before, the decisionmakers in that process are also
generally quite self-conscious of their possible biases and often act to
counter that bias.  There may be flaws in the process - indeed, as I noted
and as you rightly stress, those flaws may be systemic because of who the
decisionmakers are - but it may nonetheless be a better process than one
subject to political intervention, because permitting intervention by
politicians might skew the process even more, even though (or maybe even
*because*) they are democratically accountable.

Thought of in terms of political orientation, it is true that we can think
of the politicization of these decisions as "countering" the bias of the
bureaucrats (i.e. in simple left-right terms).  On the other hand, it might
be that the politicization will force the bureaucrats to be more risk-averse
than they otherwise would be and thus more likely to avoid controversy in
their initial decisions, irrespective of where on the political spectrum the
controversy comes from, i.e. by allowing the politicization of a few
decisions, we might homogenize and thus narrow the end results.  [Although I
think your pro-apartheid example is unlikely, I think it's certainly
possible for the process to result in a high school library with, for
example, Charles Murray's "The Bell Curve."  In that example, it's not hard
to imagine where the opposition would come from.]  No matter how the
constitutional law comes out, the elected officials don't have the time to
intervene at the individual book level except in very rare cases.
Bureaucrats are clearly going to be making the vast majority of the
decisions and so insulating them from political control at the
individual-book level might improve their decisions.  If that's correct,
then *Pico* might promote a better process for decision making in an arena
with First Amendment implications.  Under that view, it is the
politicization itself - not any particular decision about particular books -
that "contracts the spectrum of available knowledge" because of a belief
that a politicized process will invariably result in the dissemination of a
narrower spectrum of knowledge than an insulated process.

That's all quite nebulous and not easily captured in constitutional
doctrine, and the difficulty of creating a concrete doctrine that does more
good than harm is one of the reasons I ultimately think the courts should
stay out of the issue.  [And, I say that even though I feel relatively
confident that the politicians will make worse decisions than the
bureaucrats the vast majority of the time they decide it's worth their while
to intervene at the individual-book level.]  It's also dependent on an
empirical assumption about how the bureaucrats will act (though, to be fair,
lots of constitutional law is based on similar unsupported but intuitively
plausible assumptions about how people act).  But, I do think my description
captures the instincts of those who favor placing constitutional constraints
on the school board.

In short, I'm probably a bit more sympathetic to the improper procedures
argument here than you may be.  As with other 1A doctrines, e.g.
content-based laws triggering strict scrutiny, I think the point of the
court's intervention here is to police improper motive and policing the
irregular procedures is a decent proxy for that.  But I don't for a minute
believe the vulgarity v. suppression-of-ideas distinction that forms the
crux of the *Pico* remand.  [In that sense, I think Justice Powell got it
right when he asked rhetorically, "Would the plurality require--as a
constitutional matter--that the board delegate unreviewable authority to
such a committee?"  Chief Justice Burger also made a very similar point:
"The school board's error appears to be that it made its own determination
rather than relying on experts."  I think at the level of individual books,
that is exactly what the plurality was thinking, but it obviously couldn't
impose that as a matter of constitutional law.]

I do think, though, that ultimately where one falls in this case depends to
a large extent on whether one views education policy as something that
should be left to the "experts" or debated in the public sphere.  In short,
is it policy or politics?  This is where I think a comparative perspective
does help in understanding the constitutional question.  Americans - with a
huge home-school movement and a panoply of private schools - generally view
education policy as inherently contestable and thus not something to be left
to the experts (even though for nearly all decisions, they do in fact leave
things to the experts ... in part because a good deal of education policy
does in fact take some expertise).  In my view, the constitutional
principles ought to reflect that fact.

PS  Not to quibble with your quibble, but ... I agree with you completely
about what Justice White said.  I was focused on what Justice White did -
i.e. irrespective of what Justice White said, the actual holding of the
Court was to affirm the 2nd Circuit, after it reversed a grant of summary
judgment where the Board's motivation was the only material factual dispute
on the constitutional question.  I agree that, had the case returned to the
Court (or had some other case come to the Court), Justice White personally
would not have felt bound by anything.  Nonetheless, I think we can say that
the case *held* that the school board's motivation matters for purposes of
the First Amendment.  Or, at the very least, I do think that's how a
conscientious lower court judge ought to read it, even if you are right that
my quibble has no place in determining the answer to the fundamental
constitutional question (i.e. for society at the Supreme Court level or in
discussions among con law professors).

Anuj C. Desai
University of Wisconsin Law School
975 Bascom Mall
Madison, WI 53706
USA
 
Spring 2006:
National Taiwan University College of Law
21 Hsu-Chow Road
Taipei City 100 TAIWAN
 
acdesai at wisc.edu
www.anujdesai.org
Papers:  http://ssrn.com/author=337441