Guests: Levine, Alan; Lipp, George
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THE OPEN MIND
Host: Richard D. Heffner
Guests: Alan Levine with George Lipp
Title: “Censorship and School Libraries”
I’m Richard Heffner, your host on THE OPEN MIND. In a world of turmoil, stress, and rampant hostility, one in which the war of all against all that Thomas Hobbes described centuries ago now seems all too descriptive of man’s fate, there’s something wonderfully civilized and hopeful about Americans’ continuing capacity to debate and resolve great issues before the bar of justice. Indeed, just a few days before we recorded this program, two distinguished attorneys at law stood before the highest court in our land and respectively argued a case that touches upon some of the most profound issues that potently divide and unite those of us who embrace the continuing tension between majority rule and minority rights as basic to the good society. Now, I’m not a lawyer, and obviously neither are most of my viewers. And it would be all too simple for our minds to be boggled by the detailed legal precedents and references that of necessity characterize any case argued before the Supreme Court of the United States. Therefore, I’ve invited counsel who opposed each other this week to join us here on The Open Mind in the hope that they will help us understand the larger issues at stake in their case rather than focus only on the more minute legal arguments that characterize their brief in Board of Education, Island Trees Union Free School District Number 26 et al vs. Steven Pico et al.
My guests today are George W. Lipp, Jr., counsel for the Board of Education, and Alan H. Levine, counsel for Pico and the other students in what is bound to become a landmark case.
Gentlemen, thanks for joining me today. Forgive me for going on at such great length. And let me ask your permission to introduce to our viewers the case by another reading, this time from the New York Times story this week on the case that you argued, if I may. “The Supreme Court heard arguments today on whether the Constitution allows school boards to remove from school libraries books that they deem offensive. The case, which stems from a seven-year-old dispute in a Long Island District, has drawn national attention as a symbol of the increasing pressures on school libraries to tailor their contents to meet the demands of various interest groups. The board members of the island Trees Union Free School District removed nine books, including novels by Kurt Vonnegut and Bernard Malamud that had been identified as objectionable by a politically conservative parents’ organization, People of New York United. Five students sued the school board on the grounds that the board’s action violated various rights protected by the First Amendment. The Federal District Court dismissed the suit before trial on the grounds that no First Amendment right was at stake. The United States Court of Appeals for the Second Circuit ruled that the students were entitled to try to prove their case through a trial. The question for the justices is whether to allow the trial to proceed or whether, as the school board’s attorney argued today, there is no constitutional basis to challenge a determination by an elected school board on what the school library should contain. “A public school board’s mission,” the lawyer, George W. Lipp Jr, told the court, “is to transmit the community’s values to its youth. The mere allegation that any school board follows its own social, moral, and political values in making curricular decisions is not justicable”. He said. Alan H. Levine, the attorney for the students, told the justices that while school boards may give special regard to local values, they may not ignore their obligation to respect a diversity of values. Pressed by several justices to define the point at which the Constitution sets limits on educational decision-making, Mr. Levin said, “If they decide Silas Marner is a better book than The Fixer, there is no constitutional problem. But if they remove The Fixer solely because it contains a passage that offends certain groups, then the Constitution is involved”. The Fixer is the Malamud novel the school board took off the shelves.
Gentlemen, I don’t’ know whether you agree or disagree with that summary from the New York Times of your case, but let’s use that as a starting point. And let me begin the program, I guess, by asking you, Mr. Levine, a first question. And I jotted it down, because I wondered whether in this strong and well-argued brief of yours against the school board controls over what our children read and see and are taught in school, don’t you feel that the majority of any community through its duly representative, represented persons on the school board in this instance, have the right to protect by fostering those ideas and ideals and behavior patterns that they consider best? If not, what does it mean when we talk about governing by consent of the governed?
Levine: Majorities have a lot of power. We are a democratic society, and majorities control in the congress, majorities control in local legislative bodies, majorities properly control on school boards. We have, however, a Bill of Rights which is designed to limit the power that majorities have. And the Bill of Rights applies as much to majorities of school board as it does to majorities of state legislatures or to the Congress. If a state decides to enact a law saying that one cannot read a book because it offends the majority, no one would have any doubt that the First Amendment would invalidate such a law. That’s in essence what the school board has done here. They have told children in the Island Trees School District that you cannot read a book because it offends the majority. They do have certain rights. They do control the school. They can give special regard to the values of the majority. However, they may not ignore the values of the minority. They have an obligation under the First Amendment to respect a diversity of values. That is as fundamental to a democratic society as majority rule.
Heffner: Mr. Lipp, you had a response, I’m sure, to that argument in the court the other day.
Lipp: The very diversity of value that Mr. Levine talks about is one of the most important concepts supporting the school district’s right to attempt to transmit is values and to establish its particular identity with regard to that community group, that school district group. The defendant school district in this case has no other identity but as a school district. School district affairs are the sole binding bond that affect the people that are resident in this district. They’re a unique people, as are all the other school districts in this nation which would be the normal, logical results of following Mr. Levine’s theory to a point that could be a point ad absurdum. There was a case up in Boston where a judge who stated that because some people did not object to a given poem, although he admitted that many people would object to it, this what I would term extremely vulgar poem was put back onto a school board shelf, library shelf by a federal judge. This is intrusion by the federal judiciary into public educational affairs. They cannot become super school boards. And the majority does have rights as well as the minority.
Heffner: You know, when…Mr. Levine, go ahead.
Levine: Sure there are, and nobody’s talking about school boards or schools being run by federal courts. School boards run schools.
Heffner: Why aren’t you willing to have this school board then run its schools?
Levine: They can run its schools. There are certain things they can’t do however.
Heffner: You mean run them, but…
Levine: Run them, but…precisely. The reason is this. It’s the Bill of Rights again. It’s the protection of the minority. What Mr. Lipp is suggesting is that minorities in the Island Trees School District, because of this special character of the Island Trees School Board have no rights. Now, it surely cannot be his proposition that when Democrats are in the minority out there and the Republicans are in the majority, that Republicans can decide to ban all books that mention the New Deal.
Lipp: Mr. Heffner, there are agreeably, unquestionably certain things that that school board cannot do. But one of them is not to attempt to keep vulgarity, profanity, bad taste and indecency, in their opinion – I am not arguing before any court nor will I argue now necessarily the wisdom of what they did. But they did and they did not do it for what I would consider constitutionally impermissible reasons, which I would think would be attempts to ban whole ideologies, whole doctrines of thought. They have the right to ban the teaching of Spanish or revoke, remove Spanish course from their curriculum. They have the right to cease teaching certain types of math certain types of foreign language and literature courses. There’s no reason under the sun why they cannot, using their own value measures, attempt to keep profanity out of their system. And if their taxpayers feel that they’ve done an improper thing, an incorrect thing, then the safety valve is the election booth where they can be removed from office.
Heffner: Don’t you believe, Mr. Levine, that the safety valve is the majority expressing its will?
Levine: No, no. the safety valve isn’t an election, because minorities don’t win elections. And so you can’t just leave the rights of the minority to the electoral process. Otherwise, you wouldn’t need the First Amendment. The First Amendment is there in recognition of the fact that majorities can exert their will through the political process, and minorities will be helpless unless they can look to the court. But we have some areas of agreement, and maybe we can narrow down our disagreement. Mr. Lipp is right. School boards can not teach Spanish or math. He says however that they can’t remove books simply because they express a forbidden political idea. I assume he agrees that a Republican school board can’t remove a book because it mentions the New Deal. We’re in agreement there.
Lipp: Unless it contains vulgarity also.
Lipp: Then we have a mixed motivation.
Levine: so then we’re down to political ideas. Now, the starting point with this case is that there is a good deal of political content to the school board’s decision.
Lipp: We disagree totally of course.
Levine: At least until we have a trial. Right now what we have in the record is the following. One of the books is Soul On Ice about Eldridge Cleaver. There is in the record of this case one vulgar passage in all of Cleaver to which there is reference. What else we know however is that there is a leaflet upon which the defendants acted, the defendant’s school board acted which says Eldridge Cleaver, a Black Panther, not allowed to live in this country.
Heffner: May I just ask you this question Mr. Levine? Are you suggesting that if we were talking only about vulgarity and not talking about politics you would accept the school board’s authority?
Levine: No, no. we haven’t reached that yet.
Lipp: We’ve not even able to agree before the US Supreme Court to that proposition…
Levine: I at least want to get us to agree on the political part of the case. Once we agree on that we’re halfway home because then you have to have a trial.
Lipp: We are nowhere if Mr. Levine insists, as he has, only subsequent to the Circuit Court decision to talk about political motivation. He is tarring this school board with a brush that was applied at a conference that the school board, three of their members went to at the suggestion of one of the regents of the State of New York, one of the 12 people that control education in the State of New York, suggested…
Heffner: Is that good or bad?
Lipp: …suggested that they attend this conference. They attended a conference. They obtained a four-page…
Heffner: Mr. Lipp, you make it seem like a conspiracy.
Levine: Mr. Lipp, you know…
Lipp: Well no, Mr. Levine is attempting to make it sound almost like a conspiracy. And this is why I’m attempting to give the factual background as quickly as possible. In that they attended this conference, and at a table, or on a table at this conference was a list of objectionable materials in some thirty-odd volumes. The title on the list was the name of some school district in upstate New York, I think one of them took this home, was upset by the excerpts. In fact, the one that took this four-page document home had read four of the books, including Soul On Ice, which I must add certainly does have a passage that could be quite offensive, and it’s quite a lengthy passage. But again, the wisdom is not at issue. They’re not attempting to ban the thoughts expressed by Cleaver, but they did bring this material…
Levine: they are banning his book. Of course they’re…
Lipp: Of course they’re banning his book.
Levine: When you s aid it…George, when…
Lipp: There were 17,000 books left in that library.
Levine: But you said they’re not trying to ban Cleaver’s thoughts. Now, here’s his book containing his thoughts. They’re banning it. Of course they’re banning it.
Lipp: Mr. Levine, you have not…
Heffner: Wait a minute, wait a minute. Gentlemen, let me exercise, all right, now that’s precisely the point. Now let’s, you’re both saying somewhere you draw a line. Is that fair?
Levine: Okay. The reason you don’t…
Lipp: This is the first I’ve heard Mr. Levine admit that a line could be drawn shy of legal obscenity.
Levine: The reason that you don’t have vulgarity as the issue in this case though – I’ll address myself to it, I’m not avoiding it – is this school board removed these books that they got on a list of objectionable books at this conference that Mr. Lipp’s referred to. They’ve never removed another book from school library since, never gone to the library to see if there are any other books with vulgarity, never had before. So one asks, one properly asks if this is a school board so concerned with vulgarity, why aren’t they seeing if any of their other books…
Lipp: Mr. Levine, I could not make that comment in the US Supreme Court. I didn’t think I could make it in response to your brief because it would be bringing new information in. very simple reason why they didn’t do it. I told them that I would shoot them if they so much as dared touch another book until this issue was resolved. And that was their attorney’s advice to them. What’s going to happen subsequent to the resolution of this case…
Levine: Why hadn’t they ever done it before if they were so concerned?
Lipp: Just because they didn’t do it before are they depriving them a right that they have?
Levine: I think it casts doubt upon that, their motivation.
Lipp: Oh Mr. Levine, you would love to try this case and have a circus made out of and put these people on the stand and attempt to make fools of them.
Levine: George, George, that’s not fair. I don’t want to make a circus, nor do I want to…
Lipp: It would become a media item…
Heffner: Is this what goes on in the Supreme Court?
Levine: Not at all. It’s very dignified.
Heffner: One at a time.
Lipp: You said earlier that we could give and take.
Heffner: Go a little further. But I still want to go, you said you would get to the issue…
Levine: Okay, let’s talk about vulgarity.
Heffner: If you are willing to say that a line can be drawn and then identified, a line at which the community through its duly elected representatives can say, “We’re going to take this book off; we’re going to leave that book there”. Are you willing to say that? I don’t want you to, I’m just asking what would you do.
Levine: I’ll give you some thoughts on that. I’m not sure I can define it a precise line, which puts me in good company. The court talks in principles all the time and has difficulty coming up with precise lines. Let me say first what they cannot do. The Fixer is a Pulitzer Prize and National Book Award winner that according to the record has eight dirty words in it. You cannot ban a book in a school district any more than you can ban it from a bookstore simply because it contains eight dirty words. Now…
Heffner: Nine? Ten? Twelve?
Levine: No, no, no, no.
Lipp: Precisely my response, Mr. Heffner.
Levine: No, none of those. Now, do you get up at…
Lipp: Eight hundred?
Levine: …which you talk about pervasive vulgarity, something that a book that comes close to being obscene for minors, that’s an entirely different question. And I don‘t know what the Court’s going to do with that. But they have to draw those lines all the time. There is a doctrine of obscenity that is no more precise than this. The point is, what the court has consistently required and should be required of this school board is that they consider a book as a whole. And the notion that they can ban a book because of a handful of dirty words in it is a notion that, it stems from the assumption that if students read these words, they’re going to think, “Well, it’s okay to use them”.
Heffner: I have to ask you one follow-up question.
Heffner: When they consider a book in its entirety…
Heffner: …are you willing to accept the authority and the ability of these representatives of the majority to ban a book? Are you really saying as long as they consider it as a whole they can do it then?
Levine: anything that any state official does, any government official, is always subject to judicial review. Now, if a court here says you’ve got to consider the book as a whole, they go back and look at The Fixer and they say, “Oh, yeah, we read it as a whole, and it’s filthy as a whole”.
Heffner: I really wasn’t thinking of playing a game. I was really…
Levine: I know.
Heffner: …thinking of the doctrine here that you are willing to espouse, are you willing to say, are you ready to say, and if you are I’d be surprised, whether there really is that kind of time. If we say we took it in its entirety it could be banned.
Levine: The reason i say that is there is a doctrine of obscenity for minors which is different from obscenity for adults. That is the court has held that books that may be protected for adult shave different protections for minors based on their age. And there is no doubt that certain books which may otherwise be constitutionally protected might not be as you get lower and lower in the age group.
Heffner: This was a school library, wasn’t it?
Levine: This is a high school library, yes.
Lipp: But someone has to make the decision. Once Mr. Levine agrees that short of legal obscenity there are some things that certain people are entitled, or certain people in charge of school libraries, the school board, can take off the shelves, then the only question becomes who should do it, who has the right? And there is no one but the board. The professionals are tenured people] they’re not even residents of the community. And I do want to address something he said earlier in a second. Secondly, the question then becomes how do you make this determination? Now, we are not talking only about obscenity, profanity and vulgarity. What is one man’s vulgarity is another man’s lyric. What we are talking about is this whole value transmission mission of the school boards in this nation. You’re dealing with ethical concepts. You are dealing with the depiction – or not depiction, but in words – the depiction possibly of violence. You’re dealing with social concepts. There is no way to regulate, there is no possible way to regulate either the number of vulgar words or what one district considers ethical and something that they want to spend more time on than some other history. There’s no way to make these fine distinctions. You must give them blanket authority as long as they do not…
Levine: Abuse that authority.
Lipp: …abuse it by rigid and exclusive indoctrination or banning ideologies. Mr. Levine has agreed that we did not ban the teaching of any theory or doctrine. He agreed that we never threatened a teacher or a student with discipline because of it. He has agreed that we’re still free…
Levine: I have said that your clients removed books because of their political content and because of the political views of their authors.
Lipp: You did not.
Levine: I have said that and we are prepared to prove your complaint…
Lipp: Your complaint states that they used their own political, moral and social values
Levine: But we’re past the complaint. This is ac se that is…
Lipp: But you, oh, in your brief of course, you said many things…
Heffner: Gentlemen, let me ask you something. When I was a young man and maybe knew better and maybe didn’t know well enough, I edited Tocqueville’s Democracy in America because I was interested in this question of the tyranny of the majority. And i think that’s what you, Mr. Levine, have been addressing yourself to.
Levine: Trying to.
Heffner: You’re saying, “Never mind the numbers”. You’re talking about the tyranny of those numbers and the rights of those who are not in the majority. And Tocqueville said, “I know of no country in which there is so little independence of mind and real freedom of discussion as in America”. But then he went on to say the barriers against the tyranny of the majority had to do to a considerable extent with reducing the level at which government operated upon citizens, and which citizens operated upon citizens to the lowest possible level, the community. Here we have a community. And here we have the area of where presumably, if you let the people there govern, you are avoiding the larger problems that come with a great nation that has great majorities that override minorities. What are you going to do? How sympathetic are you with the needs and the aspirations of these people in this school district?
Levine: Terribly, terribly. I’ve been involved in these cases elsewhere, and I have a sense that what has animated the school board’s actions is what animated school boards’ actions in Drake, North Dakota where Kurt Vonnegut’s Slaughterhouse Five was also banned and burned. And in part what it is is about small communities resisting this inexorable process that we see going on all around us in which there is increasing urbanization and suburbanization and small towns losing their children to big cities and losing small-town values. I’m very sympathetic to that. I am not sympathetic, however to the notion that you can stop that process by closing off children’s minds to the world out there.
Heffner: How would you, because you are sympathetic with those needs, how would you deal with those needs?
Levine: By making small-community life more appealing by not trying to adapt small communities or incorporate into small communities’ big-city life. I think small towns have something special to offer.
Heffner: And they seem to want to preserve it.
Levine: And they seem to, and I think they have the right to. But we must resist their attempt to do so by denying to children the right to know about the world out there.
Heffner: But Mr. Lipp, don’t you have some sympathy for or concern about this tension between the rights of the majority that you represent, but the rights too of the minorities Mr. Levine has talked about?
Lipp: Mr. Heffner, there is an intense need for the Supreme Court to balance tremendously conflicting interests in this case. I would never sit here and say that, why, it’s obvious that we have the right that we have or that we’re asserting, or it’s obvious to anyone that what has occurred is a normal and natural thing and a wise thing. It involves tremendously conflicting values. It involves the reduced constitutional rights of juveniles. It involves the minority/majority conflict. It involves this very important concept of the transmission of community values as contrasted with colleges and universities where you have a marketplace of ideas and anything does go there and should go. You have also a sociological phenomenon today where our nation’s schools are in trouble. They’re losing students to private schools because of the disciplinary problems, because of the lack of traditional values apparently, so my clients believe. They are in a unique community. They are not similar to Great Neck, Scarsdale, other communities that may have totally different library collections.
Heffner: The uniqueness of the community, I gather, doesn’t give someone extra rights or deprive anyone of extra rights under the Constitution.
Lipp: It gives them the rights to by curricular choices to indicate that community’s preferred values.
Levine: I agree. I agree. And there’s no…
Heffner: Fifteen seconds.
Levine: …reason why they can’t shape their curriculum to reflect their community’s values. But they can’t deny the right to know about other communities’ values.
Heffner: Gentlemen, I wish we could go on and on, because there’s so much to be said about this, as you’ve both pointed out. Thank you so much for joining me today, Mr. Alan Levine, Mr. George Lipp. Thanks, too, to you in the audience. I hope you’ll join us again next time on THE OPEN MIND. Meanwhile, as another old friend used to say, “Good night and good luck.”