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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 WHITE, concurring in the judgment.
CHIEF JUSTICE BURGER, with whom JUSTICE POWELL, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join, dissenting.
JUSTICE POWELL, dissenting.
JUSTICE REHNQUIST, with whom THE
CHIEF JUSTICE and JUSTICE POWELL join, dissenting.
JUSTICE BLACKMUN, concurring in part and concurring in the judgment.
While I agree with much in today's plurality opinion, and while
I accept the standard laid down by the plurality to guide proceedings
on remand, I write separately because I have a somewhat different
perspective on the nature of the First Amendment right involved.
I
To my mind, this case presents a particularly complex problem
because it involves two competing principles of constitutional
stature. On the one hand, as the dissenting opinions demonstrate,
and as we all can agree, the Court has acknowledged the importance
of the public schools "in the preparation of individuals
for participation as citizens, and in the preservation of the
values on which our society rests." Ambach v. Norwick, 441
U.S. 68, 76 (1979). See, also, ante, at 863-864 (plurality opinion).
Because of the essential socializing function of schools, local
education officials may attempt "to promote civic virtues,"
Ambach v. Norwick, 441 U.S., at 80, and to "[awaken] the
child to cultural values." Brown v. Board of Education, 347
U.S. 483, 493 (1954). Indeed, the Constitution presupposes the
existence of an informed citizenry prepared to participate in
governmental affairs, and these democratic principles obviously
are constitutionally incorporated into the structure of our government.
It therefore seems entirely appropriate that the State use "public
schools [to] . . . [inculcate] fundamental values necessary to
the maintenance of a democratic political system." Ambach
v. Norwick, 441 U.S., at 77.
On the other hand, as the plurality demonstrates, it is beyond
dispute that schools and school boards must operate within the
confines of the First Amendment. In a variety of academic settings
the Court therefore has acknowledged the force of the principle
that schools, like other enterprises operated by the State, may
not be run in such a manner as to "prescribe what shall be
orthodox in politics, nationalism, religion, or other matters
of opinion." West Virginia Board of Education v. Barnette,
319 U.S. 624, 642 (1943). While none of these cases define the
limits of a school board's authority to choose a curriculum and
academic materials, they are based on the general proposition
that "state-operated schools may not be enclaves of totalitarianism.
. . . In our system, students may not be regarded as closed-circuit
recipients of only that which the State chooses to communicate."
Tinker v. Des Moines School Dist., 393 U.S. 503, 511 (1969).
The Court in Tinker thus rejected the view that "a State
might so conduct its schools as to 'foster a homogeneous people.'"
Id., at 511, quoting Meyer v. Nebraska, 262 U.S. 390, 402 (1923).
Similarly, Keyishian v. Board of Regents, 385 U.S. 589 (1967)
-- a case that involved the State's attempt to remove "subversives"
from academic positions at its universities, but that addressed
itself more broadly to public education in general -- held that
"[the] classroom is peculiarly the 'marketplace of ideas'";
the First Amendment therefore "does not tolerate laws that
cast a pall of orthodoxy over the classroom." Id., at 603.
And Barnette is most clearly applicable here: its holding was
based squarely on the view that "[free] public education,
if faithful to the ideal of secular instruction and political
neutrality, will not be partisan or enemy of any class, creed,
party, or faction." 319 U.S., at 637. The Court therefore
made it clear that imposition of "ideological discipline"
was not a proper undertaking for school authorities. Ibid.
In combination with more generally applicable First Amendment
rules, most particularly the central proscription of content-based
regulations of speech, see Police Department of Chicago v. Mosley,
408 U.S. 92 (1972), the cases outlined above yield a general principle:
the State may not suppress exposure to ideas -- for the sole purpose
of suppressing exposure to those ideas -- absent sufficiently
compelling reasons. Because the school board must perform all
its functions "within the limits of the Bill of Rights,"
Barnette, 319 U.S., at 637, this principle necessarily applies
in at least a limited way to public education. Surely this is
true in an extreme case: as the plurality notes, it is difficult
to see how a school board, consistent with the First Amendment,
could refuse for political reasons to buy books written by Democrats
or by Negroes, or books that are "anti-American" in
the broadest sense of that term. Indeed, JUSTICE REHNQUIST appears
"cheerfully [to] concede" this point. Post, at 907 (dissenting
opinion).
In my view, then, the principle involved here is both narrower
and more basic than the "right to receive information"
identified by the plurality. I do not suggest that the State has
any affirmative obligation to provide students with information
or ideas, something that may well be associated with a "right
to receive." See post, at 887 (BURGER, C. J., dissenting);
post, at 915-918 (REHNQUIST, J., dissenting). And I do not believe,
as the plurality suggests, that the right at issue here is somehow
associated with the peculiar nature of the school library, see
ante, at 868-869; if schools may be used to inculcate ideas, surely
libraries may play a role in that process. 1
Instead, I suggest that certain forms of state discrimination
between ideas are improper. In particular, our precedents command
the conclusion that the State may not act to deny access to an
idea simply because state officials disapprove of that idea for
partisan or political reasons. 2
Certainly, the unique environment of the school places substantial
limits on the extent to which official decisions may be restrained
by First Amendment values. But that environment also makes it
particularly important that some limits be imposed. The school
is designed to, and inevitably will, inculcate ways of thought
and outlooks; if educators intentionally may eliminate all diversity
of thought, the school will "strangle the free mind at its
source and teach youth to discount important principles of our
government as mere platitudes." Barnette, 319 U.S., at 637.
As I see it, then, the question in this case is how to make the
delicate accommodation between the limited constitutional restriction
that I think is imposed by the First Amendment, and the necessarily
broad state authority to regulate education. In starker terms,
we must reconcile the schools' "inculcative" function
with the First Amendment's bar on "prescriptions of orthodoxy."
II
In my view, we strike a proper balance here by holding that school
officials may not remove books for the purpose of restricting
access to the political ideas or social perspectives discussed
in them, when that action is motivated simply by the officials'
disapproval of the ideas involved. It does not seem radical to
suggest that state action calculated to suppress novel ideas or
concepts is fundamentally antithetical to the values of the First
Amendment. At a minimum, allowing a school board to engage in
such conduct hardly teaches children to respect the diversity
of ideas that is fundamental to the American system. In this context,
then, the school board must "be able to show that its action
was caused by something more than a mere desire to avoid the discomfort
and unpleasantness that always accompany an unpopular viewpoint,"
Tinker v. Des Moines School Dist., 393 U.S., at 509, and that
the board had something in mind in addition to the suppression
of partisan or political views it did not share.
As I view it, this is a narrow principle. School officials must
be able to choose one book over another, without outside interference,
when the first book is deemed more relevant to the curriculum,
or better written, or when one of a host of other politically
neutral reasons is present. These decisions obviously will not
implicate First Amendment values. And even absent space or financial
limitations, First Amendment principles would allow a school board
to refuse to make a book available to students because it contains
offensive language, cf. FCC v. Pacifica Foundation, 438 U.S. 726,
757 (1978) (POWELL, J., concurring), or because it is psychologically
or intellectually inappropriate for the age group, or even, perhaps,
because the ideas it advances are "manifestly inimical to
the public welfare." Pierce v. Society of Sisters, 268 U.S.
510, 534 (1925). And, of course, school officials may choose one
book over another because they believe that one subject is more
important, or is more deserving of emphasis.
As is evident from this discussion, I do not share JUSTICE REHNQUIST's
view that the notion of "suppression of ideas" is not
a useful analytical concept. See post, at 918-920 (dissenting
opinion). Indeed, JUSTICE REHNQUIST's discussion itself demonstrates
that "access to ideas" has been given meaningful application
in a variety of contexts. See post, at 910-920, 914 ("[education]
consists of the selective presentation and explanation of ideas").
And I believe that tying the First Amendment right to the purposeful
suppression of ideas makes the concept more manageable than JUSTICE
REHNQUIST acknowledges. Most people would recognize that refusing
to allow discussion of current events in Latin class is a policy
designed to "inculcate" Latin, not to suppress ideas.
Similarly, removing a learned treatise criticizing American foreign
policy from an elementary school library because the students
would not understand it is an action unrelated to the purpose
of suppressing ideas. In my view, however, removing the same treatise
because it is "anti-American" raises a far more difficult
issue.
It is not a sufficient answer to this problem that a State operates
a school in its role as "educator," rather than its
role as "sovereign," see post, at 908-910 (REHNQUIST,
J., dissenting), for the First Amendment has application to all
the State's activities. While the State may act as "property
owner" when it prevents certain types of expressive activity
from taking place on public lands, for example, see post, at 908-909,
few would suggest that the State may base such restrictions on
the content of the speaker's message, or may take its action for
the purpose of suppressing access to the ideas involved. See Police
Department of Chicago v. Mosley, 408 U.S., at 96. And while it
is not clear to me from JUSTICE REHNQUIST's discussion whether
a State operates its public libraries in its "role as sovereign,"
surely difficult constitutional problems would arise if a State
chose to exclude "anti-American" books from its public
libraries -- even if those books remained available at local bookstores.
Concededly, a tension exists between the properly inculcative
purposes of public education and any limitation on the school
board's absolute discretion to choose academic materials. But
that tension demonstrates only that the problem here is a difficult
one, not that the problem should be resolved by choosing one principle
over another. As the Court has recognized, school officials must
have the authority to make educationally appropriate choices in
designing a curriculum: "the State may 'require teaching
by instruction and study of all in our history and in the structure
and organization of our government, including the guaranties of
civil liberty, which tend to inspire patriotism and love of country.'"
Barnette, 319 U.S., at 631, quoting Minersville School District
v. Gobitis, 310 U.S. 586, 604 (1940) (Stone, J., dissenting).
Thus school officials may seek to instill certain values "by
persuasion and example," 319 U.S., at 640, or by choice of
emphasis. That sort of positive educational action, however, is
the converse of an intentional attempt to shield students from
certain ideas that officials find politically distasteful. Arguing
that the majority in the community rejects the ideas involved,
see post, at 889, 891-892 (BURGER, C. J., dissenting), does not
refute this principle: "The very purpose of a Bill of Rights
was to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and
officials . . . ." Barnette, 319 U.S., at 638.
As THE CHIEF JUSTICE notes, the principle involved here may be
difficult to apply in an individual case. See post, at 889 (dissenting
opinion). But on a record as sparse as the one before us, the
plurality can hardly be faulted for failing to explore every possible
ramification of its decision. And while the absence of a record
"[underscores] the views of those of us who originally felt
that the [case] should not be taken," Ferguson v. Moore-McCormack
Lines, Inc., 352 U.S. 521, 559 (1957) (opinion of Harlan, J.),
the case is here, and must be Decided.
Because I believe that the plurality has derived a standard similar
to the one compelled by my analysis, I join all but Part II-A(1)
of the plurality opinion.
---- Begin EndNotes ----
1 As a practical matter, however,
it is difficult to see the First Amendment right that I believe
is at work here playing a role in a school's choice of curriculum.
The school's finite resources -- as well as the limited number
of hours in the day -- require that education officials make sensitive
choices between subjects to be offered and competing areas of
academic emphasis; subjects generally are excluded simply because
school officials have chosen to devote their resources to one
rather than to another subject. As is explained below, a choice
of this nature does not run afoul of the First Amendment. In any
event, the Court has recognized that students' First Amendment
rights in most cases must give way if they interfere "with
the schools' work or [with] the rights of other students to be
secure and to be let alone," Tinker v. Des Moines School
Dist., 393 U.S. 503, 508 (1969), and such interference will rise
to intolerable levels if public participation in the management
of the curriculum becomes commonplace. In contrast, library books
on a shelf intrude not at all on the daily operation of a school.
I also have some doubt that there is a theoretical distinction
between removal of a book and failure to acquire a book. But as
Judge Newman observed, there is a profound practical and evidentiary
distinction between the two actions: "removal, more than
failure to acquire, is likely to suggest that an impermissible
political motivation may be present. There are many reasons why
a book is not acquired, the most obvious being limited resources,
but there are few legitimate reasons why a book, once acquired,
should be removed from a library not filled to capacity."
638 F.2d 404, 436 (CA2 1980) (Newman, J., concurring in result).
2 In effect, my view presents
the obverse of the plurality's analysis: while the plurality focuses
on the failure to provide information, I find crucial the State's
decision to single out an idea for disapproval and then deny access
to it.
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