Whitney - Comm Law Paper

Copyright © 2014 Whitney Yount 1

Book Banning and Homosexuality in Public Schools:
The Implications of Island Trees v. Pico in State Courts
Whitney Yount
High Point University

Introduction
For decades, the rights of public school teachers and students have been heavily debated
at both the state and federal levels. In recent years, one of the most significant legal issues
dealing with public education has been the banning of books in middle and high school libraries.
Specifically, book banning due to homosexual content has gained increased legal and media
attention as homosexuality has become a larger societal issue in itself, and the bans have raised
new ideas and questions about the legality of squelching free speech and the First Amendment
rights of public school students.
The American Library Association condemns censorship, and in an effort to raise
awareness of the issue, they keep track of the number of books that have been reported as
challenged or banned in either school or public libraries in any given year, as well as the reason
cited for the challenge. The ALA defines a "challenge" as "a formal, written complaint, filed
with a library or school, requesting that materials be removed because of content or
appropriateness."1
These challenges are not necessarily brought to fruition, and certainly not all
of them are legally contested, but the issue of book banning has received growing attention in
recent years nonetheless. Between 2000 and 2009, over 5,000 challenges were reported to the
ALA's Office for Intellectual Freedom.2
Of the 5,099 challenges reported, 361 were cited as
being challenged (at least in part) due to homosexuality.3
Although public opinion in the United States has shifted to become increasingly more
accepting of homosexuality over the last decade, many school districts and public library systems
are still concerned that by allowing children and young teenagers to be exposed to content
1
American Library Association, available at: http://www.ala.org/bbooks/frequentlychallengedbooks/top10
2
Id.
3
Id.

dealing with homosexuality, they will be unintentionally swaying the children's opinions of
homosexuals, an occurrence that is frequently challenged by parents and educators alike.
Between 2006 and 2009, at least 30 percent of the top ten most-challenged books each year cited
homosexuality as one of the reasons for the challenge4
- an astounding number considering that
gay marriage is now legal in over 30 US states.5
Although the average has been closer to 10
percent since 2010, many challenges and bans are still being issued at schools across the nation
each year.6
The issue of book banning due to homosexual content is important not only for
current students, but for future students and for the future of the United States. Freedom of
speech, especially speech that is found by some to be upsetting or uncomfortable, promotes
tolerance in society and encourages a more accepting and diverse culture through the promotion
of different opinions. This idea is reflected in what John Milton termed the “marketplace of
ideas”; in a “free and open encounter,” truth will win out.7
In 1982, the Supreme Court heard a case that has since become a precedent, albeit not a
very strong one, in regards to book banning in public schools. Island Trees Union Free School
District v. Pico was taken to the Supreme Court after a Nassau County, Long Island school board
voted to remove certain books from high school and junior high school libraries.8
The board’s
decision came shortly after some of its members attended a conference sponsored by the
conservative group Parents of New York United (PONYU), during which they were given a list
of books that were deemed “objectionable” and “improper fare for school students.”9
Upon their
return, the board temporarily removed some of the books and appointed a “Book Review
4
Id.
5
CNN.com, available at: http://www.cnn.com/interactive/us/map-same-sex-marriage/
6
American Library Association, available at: http://www.ala.org/bbooks/frequentlychallengedbooks/top10
7
John Milton, Areopagitica, in Areopagitica and Of Education [1644]
8
Legal Information Institute, available at: http://www.law.cornell.edu/supremecourt/text/457/853
9
Id.

Committee” of parents and staff that was supposed to determine whether or not the books were
appropriate for the school library’s student audiences. However, the board largely ignored the
committee’s suggestions and proceeded to pull nine books out of the libraries, stating that the
books in question were “anti-American, anti-Christian, anti-Semitic, and just plain filthy.”10
The
students then challenged the ruling in district court on the grounds that the books may have
offended board members’ “social, political, and moral tastes” but did not, in fact, lack
educational value and therefore should not be removed from their schools. The case eventually
made its way to the Supreme Court, where the justices ruled 5-4 that students’ First Amendment
rights may be “directly and sharply implicated by the removal of books from the shelves of a
school library,” and thus the First Amendment limits the power of school boards to remove
books from middle and high school libraries.11
Since this decision, a number of other courts at
both the state and federal level have seen cases regarding similar issues and have interpreted
Pico for use in their decisions.
The purpose of this paper is to examine how lower courts, specifically at the state level,
have decided on the issue of school book bans due to homosexual themes and content. This
paper is divided into four sections. The first section contains an assessment of recent literature on
the subject of homosexuality and book banning in public schools, and it addresses the debates
brought up by the Pico decision in this context. The second lays out the research questions that
the remainder of the paper is based on, as well as the methods used for analysis of the issue. The
third section of the paper contains a study of state court cases relevant to the Pico decision and to
the issue of banning books in schools due to unpopular or morally questionable themes. The final
section of the paper is a discussion of the results of the case analysis and a conclusion regarding
10
Id.
11
Island Trees Union Free School District v. Pico, 457 U.S. 853 (1982).

the current state of the issue, as well as a discussion about the future of book banning in the
public school system.
Literature Review
As more challenges have been issued in public school libraries and homosexuality has
become a more widely-discussed and significant public issue, a number of legal scholars and
researchers have analyzed the Pico decision and provided commentary on the issue of book
banning due to homosexual content. Several scholars have acknowledged the shortcomings of
Pico as a precedent case, and criticisms of the Court’s decision are rampant. However, other
researchers suggest that Pico provided a substantial platform on which to base future legal
doctrine, at least in situations that primarily refer to library books, as opposed to required reading
or curriculum-based activity.
Kristi L. Bowman argues that if government speech doctrine was used as a deciding
factor in the Pico case - giving government an “absolute defense to an individual's free speech
claim when the government can claim that the individual's speech attempts to alter the
government's message”12
- the Court would have sided with the school board rather than the
students because the values in the books conflicted with the school system’s intended message;
however, Pico predated the idea of government speech doctrine and the seminal government
speech case, Rust v. Sullivan.13
Despite her argument that the case could feasibly have been
decided the other way (especially considering that the judges were split 5-4 in the decision, with
the fifth judge refusing even to rule on the First Amendment aspect of the case),14
Bowman also
12
Kristi L. Bowman, PRIVATIZING THE PUBLIC GOOD: EMERGING TRENDS IN K-16 EDUCATION: THE
GOVERNMENT SPEECH DOCTRINE AND SPEECH IN SCHOOLS, 48 Wake Forest L. Rev. 211 (2013)
13
Id.
14

argues that because the central goal of a school library is to provide resources and not
indoctrination, school boards cannot limit students “only to views that the government wishes to
convey.”15
Theresa J. Bryant also expresses her discontent with Pico as a precedent, saying that the
dicta established in the case should largely be ignored.16
While the Pico decision is quite clear in
its affirmation that a library, as a non-curriculum area of the school, should not be as regulated
for content based solely on the viewpoints and opinions of school board employees, it leaves in
its path a gaping theoretical hole: when, then, should books or speech be banned in schools? The
classroom certainly seems to be a place guided by curriculum, but what about in private
conversations between students and teachers? What about conversations taking place in the
classroom, but outside of the designated class time? Bryant argues that the inculcation of values
in the curriculum should be made in a positive way only, and that Pico should be limited solely
to the realm of book selection and removal, but “not through the censoring of all student and
teacher speech.”17
Cases regarding book selection in the classroom as well as the library have
since used Pico as precedent, as seen in the case analysis section of this paper, though the
decision has also been cited as rationale in school event and classroom film cases, contrary to
Bryant’s reasoning.
In her 2013 article in The Modern American, Madelyn Rodriguez asserts that “No Promo
Homo” laws violate the Equal Protection Clause of the First Amendment “and further
encourages the bullying and harassment of Lesbian, Gay, Bisexual, and Transgender students,”
15
Kristi L. Bowman, PRIVATIZING THE PUBLIC GOOD: EMERGING TRENDS IN K-16 EDUCATION: THE
GOVERNMENT SPEECH DOCTRINE AND SPEECH IN SCHOOLS, 48 Wake Forest L. Rev. 211 (2013)
16
Theresa J. Bryant, ARTICLE: MAY WE TEACH TOLERANCE? ESTABLISHING THE PARAMETERS OF
ACADEMIC FREEDOM IN PUBLIC SCHOOLS, 60 U. Pitt. L. Rev. 579 (1999)
17
Id.

which in turn leads to even more significant violations of the Equal Protection Clause.18
No
Promo Homo laws apply specifically to schools, and “restrict or eliminate any school based
instruction or activity that could be interpreted as positive about homosexuality,” including (as
relevant to Pico and the cases cited in section three of this paper), books, movies, and school-
wide events.19
However, proponents of the laws argue that discussions of homosexuality in a
school environment will teach children that homosexual behavior is acceptable, a stance that is
viewed negatively by many parents and educators.20
In their article “Gay Talk,” Stephen Elkind and Peter Kauffman express a similar opinion
to Rodriguez, arguing that under certain circumstances, a teacher’s interest in discussing
homosexuality with students may outweigh the school system’s interest in suppressing that
speech despite No Promo Homo laws, because bullying of LGBT children and teenagers is so
rampant in middle and high schools.21
They acknowledge that the school board has a right to
inculcate community values, as its decisions should be representative of the wishes of the voters
and local citizens, but alternatively, the board must comply with the First Amendment’s
imperatives, as laid out in Pico.22
However, Elkind and Kauffman hypothesize that as society
becomes more accepting of homosexuality and public opinion shifts more strongly toward gay
rights, “democratically-accountable school districts will continue leaning towards regulations
that encourage teachers to promote greater tolerance of homosexuality in the classroom.”23
18
Madelyn Rodriguez, ARTICLE: SEE NO EVIL, HEAR NO EVIL, SPEAK NO EVIL; STEMMING THE TIDE
OF NO PROMO HOMO LAWS IN AMERICAN SCHOOLS, 8 Am U. Modern Am. 29 (2013)
19
Id.
20
Id.
21
Stephen Elkind and Peter Kauffman, ARTICLE: Gay Talk: Protecting Free Speech for Public School Teachers,
43 J.L. & Educ. 147 (2014)
22
Id.
23
Id.

Stanley Ingber argued just five years after the Pico decision that “viewed from the the
traditional liberal first amendment perspective, Pico is either hopelessly confused or an abject
failure,” and as a precedent, it “did little to stabilize further a highly unsettled issue.”24
The
plurality decision of Pico clearly states that “respondents have not sought to compel their school
Board to add to the school library shelves any books that students desire to read,” but rather is
solely concerned with books’ removal from libraries;25
thus, it can be concluded that a school
board can decide at any point prior to purchasing a book for their libraries that the book is
inappropriate and therefore will not be made available to students. This conclusion concerns
Ingber, who believes that this decision “may encourage school boards simply to intensify their
pre-selection screening of books, thus avoiding the need to purge the library of unwanted
materials already purchased,"26
an act which still squelches the freedom of speech and prevents
open discussion at the junior high and high school level.
Overall, scholars tend to concur that while the precedent established in Pico is weak in
some areas, it does provide an often-applicable legal basis for combatting First Amendment
violations in elementary and secondary schools. It has been applied in a wide variety of cases at
both the state and federal level, some of which are not even related specifically to the banning of
books in schools, but instead to school-wide events, class discussions, or movies viewed in the
classroom. This paper contributes to the current literature on the subject by examining state cases
where homosexually-themed books and movies were used in school systems, and were then
challenged, and by then viewing those cases through their application of the Pico decision.
24
Stanley Ingber, ARTICLE: SOCIALIZATION, INDOCTRINATION, OR THE "PALL OF ORTHODOXY":
VALUE TRAINING IN THE PUBLIC SCHOOLS +, 1987 U. Ill. L. Rev. 15 (1987)
25
26
Stanley Ingber, ARTICLE: SOCIALIZATION, INDOCTRINATION, OR THE "PALL OF ORTHODOXY":
VALUE TRAINING IN THE PUBLIC SCHOOLS +, 1987 U. Ill. L. Rev. 15 (1987)

Research Questions and Methods
This paper poses two significant questions. First, how have state courts interpreted Pico
in cases dealing with homosexual content in public school systems? Second, what legal
reasoning has been used to determine the outcome of the cases in question? This study attempts
to answer these questions by examining cases regarding homosexual themes in content used in
the public school system that have fallen at the state level and have cited Island Trees v. Pico,
using the computer-assisted legal research service LexisNexis.
Case Analysis
Since the precedent was established in 1982, 51 cases argued at the state level have cited
Pico. Of these, just three involved homosexual content and took place in a public school setting.
None of the three cases dealt specifically with library books; however, each found a way to apply
the decision made in Pico to the situation in question.
Less than three years after the Pico case was decided, plaintiffs in David O. Solmitz, et al.
v. Maine School Administrative District No. 59 planned a “Tolerance Day” at Madison High
School in Kennebec County, Maine, that was cancelled by school’s Board of Directors.27
The
event, which was planned after a homosexual boy was drowned by three high school students,
was created to expose the school’s students to the prejudice faced by various groups of
minorities, including homosexuals.28
Tolerance Day was planned as an event that would replace
the school’s regular class schedule for one day.29
The plaintiffs challenged the cancellation, and
the case ended up in the Supreme Judicial Court of Maine, where the court affirmed a lower
27
Solmitz v. Maine School Administrative Dist., 495 A.2d 812, 1985 Me. LEXIS 769 (Me. 1985)
28
Id.
29
Id.

court’s decision denying the plaintiffs injunctive relief, which would have allowed the event to
be held.30
The court found that the event was cancelled for reasons pertaining to “safety, order,
and security” rather than the controversial content of the event, and further, the cancellation was
not an attempt to suppress ideas nor to cast a “pall of orthodoxy” over the school, as per the
Keyishian decision.31,32
Pico had determined that the school board and administrators had control
over the school’s curricular decisions, and thus, because the event was scheduled during a
regular school day (and as such, would cause a disruption to the regularly-scheduled, compulsory
classes), the Board of Directors had every right to cancel the event.33
Shortly after the Solmitz case, a tenured high school teacher in Fairbanks, Alaska, was not
rehired at the beginning of a new school year due to violation of sick leave regulations, violation
of the school district’s book pre-approval policy, and violation of the school district’s lesson plan
policy.34
The teacher, Rex Fisher, challenged the school district, and the case, Fisher v.
Fairbanks North Star Borough School District, eventually made its way to the Supreme Court of
Alaska. Fisher had used an unapproved book, The Front Runner, in his American Minorities
class during a unit on homosexual rights.35
While he acknowledged that he had neither sought
nor gained approval to use the book in his class, he argued that it was a “supplementary printed
material” rather than a textbook, and thus did not require approval before use as per the school
district’s code; however, he had been warned in writing by a school administrator that he would
be required to submit any material used during the homosexual rights unit in advance, and
30
Id.
31
Keyishian v. Board of Regents, 384 U.S. 998, (1966).
32
Solmitz v. Maine School Administrative Dist., 495 A.2d 812, 1985 Me. LEXIS 769 (Me. 1985).
33
Id.
34
Fisher v. Fairbanks N. Star Borough Sch. Dist., 704 P.2d 213, 1985 Alas. LEXIS 291 (Alaska 1985).
35
Id.

therefore he had, in fact, violated the policy.36
The court cited Pico in its decision, stating that in
Pico, the school board was at fault solely because the library was a place of optional reading.37
It
therefore followed that items used in the classroom, a place of compulsory reading and learning,
were at the discretion of the school board and school administrators, and thus Fisher was found
to be at fault.
Board of Education of Jefferson County School District v. Alfred E. Wilder reached the
Supreme Court of Colorado after a high school teacher was fired for showing a film that violated
his district’s “controversial learning resource” policy.38
The film included sexual content,
profanity, and graphic violence, and it had not been pre-approved by a school administrator.39
The court found that the controversial learning resource policy was neither overbroad nor
impermissibly vague; additionally, it was not in violation of the First Amendment because the
district had a “legitimate pedagogical concern” in regulating the speech, a protection granted by
the Supreme Court in the landmark Hazelwood School District v. Kuhlmeier case.40
Because the
school board’s policy was protected by the First Amendment, the court held that the teacher’s
order of dismissal was to remain.41
The court cited Pico in this decision, recognizing that the
school had a “legitimate interest in controlling the ‘educational suitability’ of curricular
materials,”42
as the film was shown in a classroom, a place described by Pico as a setting for
compulsory learning.
36
Id.
37
Id.
38
Board of Educ. v. Wilder, 960 P.2d 695, 1998 Colo. LEXIS 470, 1998 Colo. J. C.A.R. 3475, 14 I.E.R. Cas. (BNA)
111 (Colo. 1998)
39
Id.
40
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).
41
Board of Educ. v. Wilder, 960 P.2d 695, 1998 Colo. LEXIS 470, 1998 Colo. J. C.A.R. 3475, 14 I.E.R. Cas.
(BNA) 111 (Colo. 1998)
42
Id.

In conclusion, although there are very few state-level cases that both deal with
educational materials being banned due to gay or lesbian content that also reference Pico in their
decision, the cases that have been tried with this criteria have found successful application for the
precedent despite its reputation as a somewhat weak standard among legal scholars and
researchers. However, it is not frequently cited because of its primary ruling, that the removal of
school library books (optional resources) due to “objectionable” or unpopular themes is
unconstitutional, but rather because of the assumption of the opposite - that the court’s ruling can
be interpreted as saying that classroom resources, which are by nature required, are within the
school board’s control and can thus be removed at any given time.
Discussion and Conclusion
Because this paper is specifically tailored to state-level cases that involved bans based on
homosexual content, it is difficult to make any overarching judgements on the future of book
banning cases in the United States. However, it seems that while Pico has been the recipient of a
substantial amount of legal criticism, it has also been widely applied in the courtroom, though
perhaps not in the way it was initially intended. Although Pico itself was decided against the
school board, thereby supporting the First Amendment right of free speech in the classroom, it
appears to be more often cited in cases that result in a victory for the school boards and
administrators involved. While this may not be the ideal application of the precedent case, and
does not necessarily promote free speech in public schools, it does support one of the main ideas
of the Pico dissents - that public school-related controversies should primarily be decided by

locally-elected school boards, which “should have the responsibility for determining the
educational policy of the public schools.”43
More clarification is needed in regard to what constitutes a “compulsory environment” -
while required reading or viewing classroom during class time undoubtedly falls into this
category, how would a court decide in an instance where students were instructed to pick one
book from a list of choices, if one or two were later deemed inappropriate? Similarly, what
would a court’s ruling be if a teacher and student discussed homosexuality outside of the
classroom - for instance, in a hallway between class periods? This clarification will likely allow
for a wider application of free speech in public schools.
In order for society to continue moving forward and become more accepting, a greater
tolerance of “non-traditional” lifestyles is essential. By allowing homosexual content to be read,
viewed, and discussed in a public school setting, courts would be partially responsible for this
increase in tolerance, and further, they would allow greater contributions to be made to the
marketplace of ideas. It is vital that in the years to come, courts continue to decide in favor of
expanding free speech and free expression in schools, rather than in a way that limits the
promotion of new ideas.
43

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