WEXNER v. ANDERSON UNION HIGH SCHOOL DISTRICT BOARD OF TRUSTEES

Reset A A Font size: Print

Court of Appeal, Third District, California.

V.I. WEXNER et al., Plaintiffs and Appellants, v. ANDERSON UNION HIGH SCHOOL DISTRICT BOARD OF TRUSTEES et al., Defendants and Appellants.

No. C000001.

Decided: April 25, 1989

Ann Brick, Howard, Rice, Nemerovski, Canady, Robertson & Falk, Elizabeth S. Salveson, Peter J. Busch, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, San Francisco, and Franklin S. Cibula, Redding, for plaintiffs and appellants. Clyde Small, Redding, for defendants and appellants.

May a California school district forbid high school students to read books contained in the school library collection on the ground they are not “socially acceptable to the people [of the district]”? 1  The Anderson Union High School District Board of Trustees (Board) answered “yes” to this question.   It voted on that ground to remove five works of author/poet Richard Brautigan from the library of Anderson Union High School after a committee of school administrators reported them to be unacceptable to the local community.   Several students, two teachers, and the publisher of some of the books (plaintiffs) brought suit for injunctive and declaratory relief challenging the legal validity of the Board action.   The matter was adjudicated in the trial court in summary judgment proceedings.   We will affirm the portion of the judgment holding that the books could not be removed from the library and reverse portions of the judgment which endorse a prior parental consent mechanism and permit the Board to bar “classroom” use of the books.

FACTS

At the time the lawsuit was brought, plaintiff V.I. Wexner was a teacher at Anderson Union High School.   Joining him as plaintiffs are another teacher, three Anderson High students, and a publisher of some of the books in dispute.   Defendants are the Anderson Union High School District Board of Trustees and its members, the district's superintendent, the principal of the high school;  and members of the school's Administrative Council and Professional Relations Committee.

Wexner taught developmental reading at the high school.   The class was elective, its purpose being to develop students' reading skills and to increase their interest in and enjoyment of reading.   There was no assigned reading list;  students were free to select books from the school library facility or those kept in Wexner's classroom, or to bring books from home.   Students received credit for the reading they accomplished and submitted book reports.   Wexner sometimes suggested books he thought would interest students based on conversation and the student's prior book reports.   He informed the students that they should discontinue any book they found distasteful, embarrassing, offensive, or boring.   Under the district's policies, teachers had initial authority to select supplementary instructional materials suitable for classroom use.

Among the materials available to students in the developmental reading class were seven books by Richard Brautigan which Wexner had ordered and reordered over a period of years for placement in his classroom and the school library.   Brautigan is an established author and poet whose works have garnered a measure of critical acclaim.   Plaintiffs' motion for summary judgment includes various laudatory reviews of his works.   One of the books removed by the Board, Trout Fishing in America, is listed in Books for You:  A Booklist for Senior High School Students, a publication of the National Council of Teachers of English which recommends books for use by English teachers.   Trout Fishing is also listed in The Best of the Best:  1960–1974, a publication of the Young Adults Services Division of the American Library Association which recommends books with special appeal for high school students.   Of 128 California high school librarians who answered a survey on the Brautigan books in issue, 64 reported their libraries contained one or more of these works.

Two books by Brautigan came to the attention of the school principal.   He became concerned because their titles, The Abortion:  An Historical Romance 1966 and The Pill Versus the Springhill Mine Disaster, were suggestive of controversial sex education materials he viewed as inappropriate for the developmental reading course.   The principal investigated all seven Brautigan books, and after reading copies, instructed Wexner to deliver all of them for review pursuant to the school district's Academic Freedom Policy then in effect.2

The books were first referred to the Professional Relations Committee, composed of the current and four immediate past presidents of the teachers' association at the high school.   In written reports, the committee determined that four of the books (The Abortion, The Pill, Trout Fishing in America, and Rommel Drives on Deep into Egypt ) contained “repeated, explicit sexual references and/or scenes” which “the general public would deem unsuitable for children.”   It, however, found the three remaining books (Revenge of the Lawn, In Watermelon Sugar, and A Confederate General from Big Sur ) to be unobjectionable for school use.

The Administrative Council, composed of school administrators, also reviewed the books.   In its opinion, all seven books were not “socially acceptable to the people within the Anderson Union High School District because of obscenities and sexual references.”

Both the Professional Relations Committee and the Administrative Council submitted their findings and recommendations to the Board.   The Board summarily upheld the joint findings that The Abortion, The Pill, Trout Fishing, and Rommel were unacceptable.   The Board independently considered the three remaining Brautigan books about which the opinion of the two advisory bodies diverged.   After a series of meetings, the Board found A Confederate General to be inappropriate for school use;  the Board, however, restored for use, Revenge and Watermelon Sugar.

This lawsuit followed, and plaintiffs challenge the actions of defendants in removing the five Brautigan books as violative of their rights under the First Amendment to the United States Constitution and article 1, section 2, of the California Constitution.   They also make subsidiary claims that defendants' action violated the due process and equal protection clauses of the federal and state Constitutions.   Plaintiffs seek a declaration that the Board's action violated these constitutional provisions and seek an injunction prohibiting the defendants from barring use of the books in the developmental reading classes and compelling the return of the books to the library.

The trial court granted summary judgment in favor of plaintiffs on the First Amendment ground.   It accepted plaintiffs' premise that, because the books were not legally obscene as to minors and posed no “material and substantial threat of disruption of or harm to the educational process,” their removal from the school library violated plaintiffs' constitutional rights as a matter of law.   Accordingly, the court ordered the books returned to the school library.   However, on its own initiative, the trial court suggested that the books could be placed in a restricted area, inaccessible to minor students unless they furnished evidence of parental consent.   Also on its own initiative, the trial court opined that the Board has discretion to prohibit classroom discussion of the books if used by students in the developmental reading course.

Plaintiffs appeal from the judgment to the extent it authorizes restrictive conditions on library access to and on classroom use of the five Brautigan books.   Defendants cross-appeal and urge reversal of the judgment.

DISCUSSION

I

“The governing board of each school district or community college district shall provide school library services for the pupils and teachers of the district by establishing and maintaining school libraries or by contractual arrangements with another public agency.”  (Ed.Code, § 18100.)

Defendants claim that embedded in this charge is the statutory authority to remove books from the library collection which are deemed offensive or socially unacceptable to the people of the district.   Plaintiffs by default assume that this is so and challenge the removal of the Brautigan books on constitutional grounds, as abridging the freedom or liberty of speech in violation of the First Amendment of the United States Constitution 3 and article 1, section 2 of the California Constitution.   We will conclude that the Board has not been delegated such authority and such action is in conflict with state law.   Accordingly, we do not reach the constitutional claims tendered by plaintiffs.  (See generally e.g. Assn. for Retarded Citizens' v. Dept. Developmental Services (1985) 38 Cal.3d 384, 394, 211 Cal.Rptr. 758, 696 P.2d 150.)

 Preliminarily we survey the scope of defendants' authority.   We accept the premise of the parties that a school board could remove books from the library that are obscene.  Penal Code section 313.1 affords a sufficient statutory warrant for such removal and obscenity, by definition, is outside the scope of free speech constraints.   The trial court, after reviewing the Brautigan books, the evidence of Brautigan's widespread critical acclaim, and the deposition testimony of board members concerning their actual grounds for removing the books concluded that there is “no direct serious contention that the works are legally obscene even as to minors.”   That view is borne out by Penal Code section 313, which sets forth the obscenity standard for minors by its definition as “harmful matter.”4  The defendants' retort is not backed by evidence of the kind required by section 313 and thus presents no triable issue of fact.

 Defendants rely on the supposed strict views of the citizenry of the school district as the basis for their action.   However, it has long been the law that the community whose standards circumscribe the zone of obscenity is the entire state of California.  (In re Giannini (1968) 69 Cal.2d 563, 577–580, 72 Cal.Rptr. 655, 446 P.2d 535.)   That standard, phrased as “contemporary statewide standards”, is explicitly the standard for minors now required by Penal Code section 313.  (Stats.1986, ch. 51, § 4;  Stats.1988, ch. 1392;  emphasis added.)

 The question whether a work is obscene is ultimately for the court.  (Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 910, 31 Cal.Rptr. 800, 383 P.2d 152.)   We are required by Penal Code section 313, subdivision (a), to read the works “as a whole․”  That alone vitiates the District's claim, for its position is wholly grounded upon the extraction of isolated segments of the Brautigan books.   Moreover, no claim is made, nor could there be, that in the context of an entire book any of these segments show, as required by section 313, that it “lacks significant literary ․ value for minors.”   In the light of this provision we have reviewed the allegedly obscene components of the books removed by the District.   Some persons might find indecent the loose sexual mores and occasional profanity of the flower children depicted by Brautigan.   However, no reasonable trier of fact could find the books, judged as a whole, are “harmful matter” as to minors.   Indeed, the raft of laudatory reviews of the books placed in evidence by plaintiffs shows them to possess significant literary value.

Thus, defendants claim of authority to remove books from the high school library which are not obscene rests on the ground that they are socially unacceptable to the people of the district because their content includes profanity and references to sexual conduct that are deemed indecent.   Such action palpably implicates issues concerning freedom of speech.   If Pico, supra, does not resolve the free speech problem, it is nonetheless an unmistakable indication that a genuine problem exists.   The problem is all the more serious because the type of action, book-banning, is the archetypical symbol of repression of free speech and because it occurs, in a manner of speaking, “in front of the children.”   Solicitude for freedom of speech in the public school environment is a teaching endeavor that pays untold educational dividends.  “That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”  (West Virginia State Bd. of Education v. Barnette (1943) 319 U.S. 624, 637, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628, 1637.)

 When the action of a local government entity raises serious questions of constitutional stature the judiciary must carefully scrutinize the claim that the authority so to act has been delegated.  (See Monaghan, Foreward:  Constitutional Common Law (1975) 89 Harv.L.Rev. 1.)   Such scrutiny is impelled by the desire to avoid judicial resolution of the constitutional limits of government power unless compelled.   Constitutional checking of the coordinate political branches is not a matter to be lightly undertaken.

The authority of subordinate government entities is, within constitutional limits, founded upon statutes.   Accordingly, the judicial review of the exercise of such authority is often cast as an exercise in statutory construction.   That a school district is governed by statute goes without saying.   Moreover, as we shall show in detail later in the opinion, the grant of statutory authority to a school district operates within the constitutional and statutory perimeters and strictures of the law of preemption.   Thus the question, as we view it, is one of preemption;  whether the Anderson school district has the authority to engage in the library censorship here at issue.   The answer to that question will lead us into the statutory system by which local school authority over libraries is exercised.

At the outset candor compels the acknowledgment that in considering the question of preemption something more than the mere reading of statutes is, at times, afoot.  “The demarcation between ‘statutory interpretation’ or ‘constitutional interpretation’, on the one hand, and judge-made law on the other, is not a sharp line.   Statutory interpretation shades into judicial lawmaking on a spectrum, as specific evidence of legislative advertence to the issue at hand attenuates.”  (Bator, Mishkin, Shapiro and Wechsler, The Federal Courts and the Federal System (2d ed. 1973) p. 770.)

 To the extent that judicial lawmaking occurs in this narrow context it is a peculiarly defensive activism.   The vice of unwarranted judicial activism is an encroachment on the prerogatives of the majoritarian branches of government.   But judicial interposition to bar constitutionally questionable acts of a subordinate government entity preserves the option of further considered action by the legislative branch.   The criteria for such action are a genuine and closely balanced question of constitutional law, the absence of an express delegation of authority to the subordinate entity and circumstances which render deferral of the question to the Legislature a prudent disposition.   As appears, these conditions are met in this case.

II

Preliminarily, we note that considerations which may foreshorten analyses of free speech concerns in other contexts do not pertain to the removal of library books.   In some aspects of public school governance, the constitutional principles of free speech are applied to constrain government action.  (See e.g. West Virginia State Bd. of Education v. Barnette, supra;  Tinker v. Des Moines Community School Dist. (1969) 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731;  Lindros v. Governing Bd. of the Torrance Unified School Dist. (1973) 9 Cal.3d 524, 108 Cal.Rptr. 185, 510 P.2d 361.)   The degree of judicial checking is pragmatically proportioned to context.

 Nothing about the context of library book removal renders intervention at the behest of free speech concerns infeasible.   A library is user controlled;  pupils are not compelled to read particular library books.   Removal of a library book based on its content is not comparative.   Judicial oversight of comparative choices poses the dilemma of substitution of one censor for another.   But that problem does not arise until a shortage of space compels removal of library books and thus requires choices among them.   We note these considerations only to show there is no structural impediment to acknowledging a free speech right of access to information in this context.

If this were otherwise, one might reasonably claim the perceived constitutional problem is chimerical.   However, we conclude the constitutional problem raised by the Board's conduct is serious and genuine.  (See e.g. Lichtenstein, Children, The Schools, and the Right to Know:  Some Thoughts at the Schoolhouse Gate (1985) 19 U.S.F.L.Rev. 91;  Note, Reshelving the First Amendment:  Board of Education, Island Trees Union Free School District No. 26 v. Pico (1984) 17 Loyola L.A. L.Rev. 1057.)

Thus, we turn to the question, in the context of the law of preemption, of the statutory authority of the Anderson School District to act in the manner and for the reasons it did.

A.

 The statutory authority of a school district to act derives from two sources.   One derives from the substantive provisions of the Education Code.   The other derives from the general delegation of authority provided by Education Code section 35160.  “[T]he governing board of any school district may initiate and carry on any program, activity, or may otherwise act in any manner which is not in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for which school districts are established.”

 Section 35160 seeks to implement article IX, section 14 of the California Constitution:  “The Legislature may authorize the governing boards of all school districts to initiate and carry on any programs, activities, or to otherwise act in any manner which is not in conflict with the laws and purposes for which school districts are established.”  (Cal. Const., art. IX, § 14;  emphasis added;  amended Nov. 7, 1972, operative July 1, 1973.)   This provision places constitutional limits on the authority of school districts to act by delineating the power of the Legislature to delegate such authority.   The question whether that authority has been exceeded by local action is in part a constitutional question of preemption, i.e., a question whether the authority claimed to have been granted by the Legislature or exercised by a school district is in “conflict with the laws” governing school districts.

 The quoted language is borrowed from the analogous limitation on the grant of authority to local governments, as reenacted at the election immediately preceding the enactment of article IX, section 14.  Article XI, section 7 of the California Constitution provides that “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”  (Added June 2, 1970;  emphasis added.)   This provision is, in all material respects, identical to that of former section 11 of article XI and, so we are told, is not intended as a change in meaning given that section by the courts.  (See art. XI, § 13.) 5  The significance of the parallel between article IX, section 14 and article XI, section 7, is that cases interpreting the law of preemption, applicable to cities and counties, are of precedential value in construing the authority which the Legislature has granted to school districts.

There is another, more immediate consideration in determining the impact of article IX, section 14 upon the authority of school districts to act.   It was meant to authorize the Legislature to change a system of law rooted in the theory that school districts are delegated only such powers as are expressly provided by statute, that statutes, unless they expressly provide otherwise, occupy the entire field of law applicable to school districts.  (See e.g., Hall v. City of Taft (1956) 47 Cal.2d 177, 184–185, 302 P.2d 574;  Uhlmann v. Alhambra etc. School Dist. (1963) 221 Cal.App.2d 228, 234, 34 Cal.Rptr. 341;  Ed.Code, 1959, § 1001, Stats.1963, ch. 629, p. 1518.)   The Education Code was drafted in view of this principle of law.   Since the substantive provisions of the code were not amended by section 35160, the existing law remains in place and the increased flexibility sought by article IX, section 14 and section 35160 effectively could not be implemented.

This problem was belatedly recognized in 1987 when remedial legislation was enacted.   It provides:  “The Legislature finds and declares that, in 1972, the people of the state adopted an amendment to section 14 of article IX of the California Constitution, which permits the Legislature to authorize the governing boards of school districts to initiate and carry on any programs, activities, or to otherwise act in any manner which is not in conflict with the laws and purposes for which school districts are established.”  (Stats.1987, ch. 1452, § 1;  emphasis added.)   This provision recognizes the need in some areas for specific legislative implementation of article IX, section 14.

To that end, the 1987 statute amended or repealed numerous provisions of the Education Code.   However, significantly for this case, none of these changes addressed the power of school districts to remove books from school libraries for reasons of their content or social unacceptability.  (See § 78 of Stats.1987, ch. 1452, repealing and amending various provisions of the Education Code relating to school libraries.)   That fact will assume importance in our examination of the statutes governing local school libraries.   As will appear, there is no statutory delegation of authority to remove library books for the reasons relied upon by defendants because the statutes addressed to school libraries implicitly conflict with such a delegation.   As we next show, the general authority of section 35160 does not redress that conflict because such removal conflicts with statutory and public policy regarding freedom of speech in the public schools.

 That brings us to the question whether the general delegation of authority to school boards in Education Code section 35160 provides a warrant for the Board's action in removing the Brautigan books.   This section was adopted, following the enactment of article IX, section 14 of the California Constitution, to relieve school districts from the strictures of the law that “local school districts possessed little, if any, power to act without express legislative or administrative authorization.”  (Hartzell v. Connell (1984) 35 Cal.3d 899, 913–916, 201 Cal.Rptr. 601, 679 P.2d 35.)  “However, the flexibility provided by section 35160 is not without limits.   School districts are authorized only to ‘initiate and carry on any program, activity, or ․ otherwise act in any manner which is not in conflict with ․ any law․’ ”  (Ibid;  emphasis added.)   In 1987 the Legislature added an interpretive clause, section 35160.1, stating that it was its intention that section 35160 be liberally construed, inter alia, “as a clarification of existing law”, that school districts have “the flexibility to create their own unique solutions” to meet the “diverse needs unique to their individual communities and programs.”  (Stats.1987, ch. 1452, § 199.)   However, nothing was said about the meaning of the term “law” nor Hartzell 's interpretation of it.

Hartzell held that an administrative regulation promulgated under the authority of the State Board of Education was a “law” as that term was used in section 35160.  Section 35160 lists as limitations, conflict with, inconsistency with, or preemption by, “any law.”  It closely followed upon the codification of the law of preemption applicable to local governments, which provided that “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”  (See art. XI, § 7.)   As related, the meaning of the term “general laws” was preserved by article XI, section 13, including its incorporation of the common law.  (See In re Koehne, supra, 59 Cal.2d 646, 30 Cal.Rptr. 809, 381 P.2d 633;  In re Porterfield, supra, 28 Cal.2d 91, 168 P.2d 706;  Chavez v. Sargent, supra, 52 Cal.2d 162, 339 P.2d 801.)   Analogously, “any law” includes not only the regulations of the State Board of Education but the common law as well.   Hence, to the extent that our preemption analysis rests upon common law extrapolation of the pertinent statutes, it is sufficient to override the authority granted the Board by section 35160.  “Any law” includes common law.

That brings us to the consideration of the provisions of the Education Code addressed to school libraries.   The topic is the subject of a detailed statutory scheme set out in Education Code sections 1770–1775 and 18100–18172.   There is no provision in this scheme which authorizes school districts to winnow library books based on their perceived offensive content or social unacceptability.   As appears, the only statutes directly pertaining to removal of library books imply that such removal is not appropriate.

 As related, Education Code section 18100 requires the district board to establish and maintain a school library or provide library services by contract with another public agency.   This does not imply authority to cull from the library collection books found to be offensive.   The power to cull cannot be implied from the grant of power to create and maintain a library.   In fact the implication is to the contrary.   The Board is “accountable for the proper care and preservation of the school libraries of the district” and to that end is given power to “make all necessary rules and regulations․”  (Ed.Code, § 18121.)   Destruction cannot be implied as a corollary of care or preservation and the contrary implication is the more reasonable.

 Under the Education Code, the initial authority concerning selection of library books is lodged in the county board of education.  (Ed.Code, §§ 18110, 18171.)   A district board of education may select books that have not been approved by the county board only if the district employs a full-time credentialed librarian or a district superintendent of schools.  (Ed.Code, § 18171.)   As related, the power of initial selection is virtually unreviewable because it is a choice between alternatives, i.e. selecting the most suitable candidates for inclusion.   There is simply no acceptable way for the judiciary to oversee this process.   Such a cure would be worse than the disease.   However, this does not compel the inference that the board has a continuing unreviewable power to deselect books.   As related, the reasons which preclude judicial review of selection are inapplicable to the context of removal.   Removal is not comparative and judicial oversight leads to no quagmire of substitution of the taste of the judge for that of the Board.

 Once a book has been selected and introduced into the library collection it must be available for use.  “The libraries shall be open to the use of the teachers and the pupils of the school district ․ during the school day.”  (Ed.Code, § 18103.)   Restricting access to library materials runs afoul of this provision.

 Logically, the most pertinent statutory indicia of policy concerning the issue before us is contained in statutes that address disposal of library books rather than their initial selection.   Where the board chooses to satisfy its obligation to provide library services by contract with the county library, Education Code section 18133 governs disposal of books from the library collection.  Section 18133 applies also where library services are provided by the county superintendent of schools.  (Ed.Code, § 1770.)  Section 18133 says:  “The county librarian may (a) at his discretion dispose of books and other materials no longer fit for service, and (b) with the approval of the county board of education dispose of any books or other materials no longer needed by the course of study.”

Books are no longer fit for service when they are worn out.   Books which are needed by the course of study are such things as textbooks.   The usefulness of single copies of works purchased for a library collection is not dependent upon a particular course of study.   Hence, they are not necessarily rendered obsolete by the changing of course content.   Accordingly, the canon of statutory construction that lists are ordinarily considered exclusive, expressio unius est exclusio alterius, supports the conclusion that a county librarian or superintendent of schools running a library has no authority, even with the approval of the board, to remove a book because of objectionable content.  (C.f. 2A Sands, Sutherland Statutory Construction (4th ed. 1984) § 47.23.)

 This limitation on disposal when the board contracts for library services is at least an indication of the scope of authority of the board when it directly establishes and maintains a library.   No reason appears why a broader disposal authority should obtain when a board acts through its own staff rather than through the staff of another public agency under a contract for library services.   In sum, we discern no delegation of authority in the statutes specifically addressed to school libraries to remove library books based on objectionable content or social unacceptability in the community.   On the contrary, the opposite implication arises from the statutory scheme.

 The contrary implication is also impelled by a consideration of the Education Code provision addressed to the topic of free speech in the public schools.   The authority claimed by the Board is inconsistent with public policy concerning free speech in public schools manifested in Education Code section 48907.   Statutes are a principal evidentiary source of public policy.  (See e.g. 2A Sands, Sutherland Statutory Construction, supra, § 56.02.)   Section 48907 sets forth a standard for the range of speech which must be tolerated in the public school environment.  Section 48907 is derived from former Education Code section 10611.  (Compare Stats.1976, ch. 1010 with Stats.1959, ch. 2.)   Former section 10611 was enacted in response to the litigious controversy spawned by efforts of school authorities to restrict distribution of underground newspapers on high school campuses.  (See Bright v. Los Angeles Unified School District (1976) 18 Cal.3d 450, 457, 134 Cal.Rptr. 639, 556 P.2d 1090.)  “Newspapers of this genre typically contain material which criticizes the school administration, challenges the principles and policies of public school education and covers controversial topics outside the curriculum—all frequently couched in strident and blunt, even earthy language.”  (Ibid.)

 Section 48907 provides in pertinent part:  “Students of the public schools shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not such publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous.   Also prohibited shall be material which so incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.”   Under this provision the Board could not forbid a student to distribute Brautigan's works, or prohibit distribution to students of an underground newspaper publishing any of the poems that Board found unacceptable in The Pill Versus The Springhill Mine Disaster.   It would be an anomaly to find the Board's authority to censor existing library books is governed by a different standard than that set forth in section 48907.   This indication of public policy concerning the substantive range of speech that must be tolerated in the high schools reinforces our conclusion that section 35160 is not sufficient to confer the authority claimed by the Board.

III

As related, complex and closely balanced questions of state and federal constitutional law would be implicated if the Board's claim of lawful authority to remove non-obscene library books were upheld.   If those questions are resolved by the approach of the Pico case plurality the nebulous terminology “pervasive vulgarity” and “educational unsuitability”, and the focus on the will-o'-the-wisp of intent by a board to suppress ideas threaten a dismal litigious swamp of duplicity and metaphysical distinction.   If school boards are granted such authority every library book bears the imprimatur of the present Board.   This would afford a disruptive and divisive focal point for pressure groups to politicize the public educational system.6  Every book in the library would be a litmus test of the Board's adherence to conventional views.   The cost of such falderal, beyond distraction of time and energy from the pressing problems of educational administration, would be a narrowing of the breadth of school library collections to the blandest common denominator.7  In our view the possible gains of local authority to winnow library books based on offensive content are entirely illusory.

 We hold that in view of the statutes governing school libraries and the public policy of the state articulated in Education Code section 48907 the Board did not have the authority to remove the Brautigan books from the school library based upon their perceived offensive content.   Acting in such a manner is in conflict with or inconsistent with, or preempted by “law” for the reasons we have related.

 The only use shown of the Brautigan books in the developmental reading course is as library books.   Accordingly, the trial court's remarks concerning the possible restrictions on “classroom” usage of the books are improvident and beyond the scope of the issues tendered by the pleadings.   Similarly, the trial court's remarks concerning permissible prior parental consent restrictions on access to the books are beyond the scope of the pleadings and constitute an inappropriate advisory opinion.

The provisions of the judgment addressing restrictions on the classroom use of the Brautigan books and a system of prior parental consent for access to them are stricken.   With those exceptions, the judgment is affirmed.   Plaintiffs shall recover their costs.

I dissent.

I.

The majority hold that the Board lacked authority to remove the Brautigan books from the school library based upon their perceived offensive content.   “Acting in such a manner is in conflict with or inconsistent with, or preempted by ‘law’․”  (Maj. opn., ante, pp. 37–38)  Since I am unpersuaded that state law preempts the authority of the Board in this regard, I find no conflict between the Board's action and state law or policy.

The Legislature, acting pursuant to constitutional authority (Cal. Const., art. IX, § 14), has granted wide latitude to local school authorities to conduct their own affairs.  Education Code section 35160 provides that “[T]he governing board of any school district may initiate and carry on any program, activity, or may otherwise act in any manner which is not in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for which school districts are established.”

The Legislature recently expressed its intent that Education Code section 35160 “be liberally construed” (Ed.Code, § 35160.1, subd. (b)) in order “to give school districts, county boards of education, and county superintendents of schools broad authority to carry on activities and programs, including the expenditure of funds for programs and activities which, in the determination of the governing board of the school district, the county board of education, or the county superintendent of schools are necessary or desirable in meeting their needs and are not inconsistent with the purposes for which the funds were appropriated.”  (Ed.Code, § 35160.1, subd. (b);  Stats.1987, ch. 1452, § 199.)   Underlying this obvious preference for substantial local control in public education is an express legislative finding and declaration “that school districts, county boards of education, and county superintendents of school have diverse needs unique to their individual communities and programs.   Moreover, in addressing their needs, common as well as unique, school districts, county boards of education, and county superintendents of schools should have the flexibility to create their own unique solutions.”  (Ed.Code, § 35160.1, subd. (a).)

There can be no doubt the Legislature has vested latitudinous power in local districts and boards to act in any manner consistent with educational purposes (§ 35160).   This power obviously includes the discretion to make decisions regarding the content of courses of instruction to the end that it will best reflect the basic values of the community.  (Zykan v. Warsaw Community School Corp. (7th Cir.1980) 631 F.2d 1300, 1305.)

The majority's preoccupation with a lack of specific delegation of authority to local educational authorities to review and remove books is misplaced.   The question is not whether there is a specific grant of authority for the action taken by the Board, but whether there is any statutory prohibition preventing the Board from reviewing and removing books.   I can find nothing in the statutes expressly in conflict with the Board's action.   Indeed the Legislature's broad general grant of authority to local districts strongly suggests that the review and removal of books does not impinge upon an area which the state intends exclusively to occupy.   Moreover, the Legislature has given school district governing boards “broad powers to establish courses of study” and has acknowledged that boards “must have the ability to choose instructional materials which are appropriate to their courses of study.”   (Emphasis added;  Ed.Code, § 60003.)  Education Code section 60045 provides that “All instructional materials adopted by any governing board for use in the schools shall be ․ suited to the needs and comprehension of pupils at their respective grade levels.”   More specifically, the boards are “accountable for the proper care and preservation of the school libraries of the district” and have the power to “make all necessary rules and regulations․”  (Ed.Code, § 18121.)   Finally, the authority concerning the selection of library books is lodged in the county board of education.   (Ed.Code, §§ 18110, 18171.)   Rather than giving these and other relevant statutes a narrow reading (see maj. opn., ante, pp. 35–36), I would construe them liberally in keeping with the mandate of the Legislature in favor of local decision making in the schools.  (§ 35160.1, subd. (b).)

The Board's action in reviewing and removing the Brautigan books on the grounds of educational unsuitability was not in conflict with, inconsistent with, or in any manner preempted by state law.

II

The substantive issue presented by this case is whether the Board's review and removal of books offends any constitutional rights of plaintiffs.   I am satisfied the Board's action implicates no constitutional interests.

It is widely acknowledged by appellate courts at every level that local school boards may constitutionally exercise broad discretionary powers in making educational decisions regarding what students should read or hear.  (See, e.g., Board of Education v. Pico (1982) 457 U.S. 853, 863–864, 102 S.Ct. 2799, 2806–2807, 73 L.Ed.2d 435, 444–445 [hereafter cited as Pico ];  McCarthy v. Fletcher (1989) 207 Cal.App.3d 130, 139, 254 Cal.Rptr. 714;  Zykan v. Warsaw Community School Corp., supra, 631 F.2d at p. 1305, and numerous authorities cited therein.)

Board of Education v. Pico, supra, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435, dealt with removal of books by a local school board (Board) from its school library.   Although other reasons justifying the Board's action were tendered, the Board had characterized the removed books as “ ‘anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy.’ ”  (Supra, 457 U.S. at 857, 102 S.Ct. at p. 2803, 73 L.Ed.2d at p. 440.)   The Board disregarded established review channels and resorted to the extraordinary procedure of appointing an ad hoc committee to review the books and recommend whether they should be removed.  (Pico, supra, 457 U.S. at pp. 859–860, 102 S.Ct. at pp. 2804–2805, 73 L.Ed.2d at pp. 441–442.)   Without giving reasons, the Board then substantially rejected the committee's recommendations and voted to remove from the library and the curriculum nine of the eleven books reviewed.  (Ibid.)

There is no majority opinion in Pico and it is distinguishable on its facts from the instant matter.   Nevertheless, the case furnishes guidance in resolving the legal dispute here.

The Pico plurality opinion recognized the broad discretion courts generally accord local school boards in the management and daily operation of school affairs and acknowledged the vitally important role played by public schools in preparing “ ‘individuals for participation as citizens' ” and “ ‘inculcating fundamental values necessary to the maintenance of a democratic political system.’ ”  (Pico, supra, 457 U.S. at pp. 863–865, 102 S.Ct. at pp. 2806–2807, 73 L.Ed.2d at pp. 444–445, quoting Tinker v. Des Moines Community School Dist. (1969) 393 U.S. 503, 507, 89 S.Ct. 733, 737, 21 L.Ed.2d 731, 738 and Ambach v. Norwick (1979) 441 U.S. 68, 76–77, 99 S.Ct. 1589, 1594–1595, 60 L.Ed.2d 49, 56–57.)  “[S]chool boards must be permitted ‘to establish and apply their curriculum in such a way as to transmit community values,’ ․” (Pico, supra, 457 U.S. at p. 865, 102 S.Ct. at p. 2807, 73 L.Ed.2d at p. 445.)   There is a “legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political.”  (Ibid.)

On the other hand, the Pico plurality recognized local school boards must exercise their discretion in educational matters “in a manner which comports with the transcendent imperatives of the First Amendment.”  (457 U.S. at p. 864, 102 S.Ct. at p. 2806, 73 L.Ed.2d at p. 445.)   It is a well settled principle that the constitutional rights to freedom of speech and expression are not “shed ․ at the schoolhouse gate” and apply in the public school setting.  (Tinker, supra, 393 U.S. at p. 504, 89 S.Ct. at p. 735, 21 L.Ed.2d at p. 737;  West Virginia State Bd. of Edu. v. Barnette (1943) 319 U.S. 624, 637, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628, 1637.)   As an “inherent corollary” of the right of free expression, the Pico plurality, advancing one step further, posited a “right to receive information and ideas” applicable to book removal decisions involving school libraries.  (Pico, supra, 457 U.S. at pp. 866–869, 102 S.Ct. at pp. 2807–2809, 73 L.Ed.2d at pp. 446–448.)   As distinct from the compulsory environment of the classroom, said the Pico plurality, the school library is a unique place of inquiry and study where the books are optional rather than required reading.  (Pico, supra, 457 U.S. at pp. 868–869, 102 S.Ct. at pp. 2808–2809, 73 L.Ed.2d at pp. 447–448.)

In an attempt to strike a balance between competing interests, the Pico plurality rejected the claim school boards had absolute discretion, unfettered by constitutional restraints, to remove library books on the basis of their content.1  Instead, the plurality formulated a standard according to which those removal decisions motivated by intent officially to suppress ideas or to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion” are constitutionally infirm.  (Pico, supra, 457 U.S. at pp. 869–871, 102 S.Ct. at pp. 2809, 2810, 73 L.Ed.2d at pp. 448–450, quoting West Virginia v. Barnette, supra, 319 U.S. at p. 642, 63 S.Ct. at p. 1187, 87 L.Ed. at p. 1639;  see also Epperson v. Arkansas (1968) 393 U.S. 97, 104–105, 89 S.Ct. 266, 270–271, 21 L.Ed.2d 228, 234–235.)   If, however, a removal decision is taken because the library books are, for example, “pervasively vulgar” or because of their “ ‘educational [un]suitability’ ․ then their removal would be ‘perfectly permissible.’ ”  (Pico, supra, 457 U.S. at pp. 869–871, 102 S.Ct. at pp. 2809–2810, 73 L.Ed.2d at pp. 449–450, 451.)   Because there were issues of fact as to whether the decisive factor motivating the removal of the library books was political orthodoxy, the plurality reversed the summary judgment in favor of the Board.

More recently in Hazelwood School Dist. v. Kuhlmeier (1988) 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 the federal high court applied a somewhat different standard than that adopted by the plurality in Pico.   In Hazelwood, a challenge was made to editorial control by school officials over a high school newspaper published by the school's journalism department.   Noting the situation “concern[ed] educators' authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school,” the court held “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”  (Emphasis added;  fn. omitted;  484 U.S. at pp. –––– – ––––, 108 S.Ct. at pp. 569–571, 98 L.Ed.2d at pp. 605–606.)   The court found educators are entitled to exercise greater control over such activities “to assure that participants learn whatever lessons the activity is designed to teach” and that “readers or listeners are not exposed to material that may be inappropriate for their level of maturity.”  (Id., at p. ––––, 108 S.Ct. at p. 570, 98 L.Ed.2d at p. 605.)   The court concluded, “It is only when the decision to censor ․ has no valid educational purpose that the First Amendment is so ‘directly and sharply implicate[d],’ [citation], as to require judicial intervention to protect students' constitutional rights.”  (Fn. omitted;  id., at p. ––––, 108 S.Ct. at p. 571, 98 L.Ed.2d at p. 607.)

In Bethel School Dist. No. 403 v. Fraser (1986) 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549, the federal high court held a high school student's free speech and due process rights were not violated when school officials suspended the student for making a sexually suggestive speech at a school assembly.   The court indicated that, in the school setting, the constitution affords slight protection to profane, indecent, and vulgar language.   The court stated:  “ ‘These words offend for the same reasons that obscenity offends.   Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said:  “[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” ’ ”  (Bethel, supra, 478 U.S. at p. 685, 106 S.Ct. at p. 3166, 92 L.Ed.2d at pp. 559–560.)

Pico, Hazelwood, and Bethel teach that a book may constitutionally be removed from a school library even though it is not legally obscene.

In different settings, the high court has held the state's substantial interest in safeguarding the well-being of minors justifies withholding from young audiences forms of expression characterized as “offensive” but not legally obscene.  (New York v. Ferber (1982) 458 U.S. 747, 756–758, 102 S.Ct. 3348, 3354–3355, 73 L.Ed.2d 1113, 1122–1123;  FCC v. Pacifica Foundation (1978) 438 U.S. 726, 749–750, 98 S.Ct. 3026, 3040–3041, 57 L.Ed.2d 1073, 1093–1094;  Ginsberg v. New York (1968) 390 U.S. 629, 640, 88 S.Ct. 1274, 1281, 20 L.Ed.2d 195, 204.)   The Supreme Court's recognition of society's right to “adopt more stringent controls on communicative materials available to youths than on those available to adults” (Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 212, 95 S.Ct. 2268, 2274, 45 L.Ed.2d 125, 133.) “stems in large part from the fact that ‘a child ․ is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.’ ”  (FCC v. Pacifica Foundation, supra, 438 U.S. at p. 757, 98 S.Ct. at p. 3044, 57 L.Ed.2d at pp. 1098–1099 (Powell and Blackmun, JJ., conc. in result), quoting Ginsberg v. New York, supra, 390 U.S. at pp. 649–650, 88 S.Ct. at pp. 1285–1286, 20 L.Ed.2d at pp. 209–210 (Stewart, J. conc. in result).)

From the foregoing decisions I conclude that books and other materials which are not legally obscene as to minors may nevertheless in certain circumstances constitutionally be removed from a public school library by school authorities.2

The distinction drawn by the majority between the removal of and the refusal to acquire a library book is irrelevant.   This is so because the authority of plaintiff teacher to select supplementary instruction material suitable for classroom use was provisional and subject to review.   Under the majority view, “if a school board wants to be assured that it maintains control over the education of its students, every page of every book sought to be acquired must be read before a purchase decision is made.”  (Pico, supra, 457 U.S. at p. 892, fn. 8, 102 S.Ct. at p. 2821, fn. 8, 73 L.Ed.2d at p. 463, fn. 8 (dis. opn. of Burger, C.J.).)   To grant a book provisionally selected some sort of artificial “tenure” status is neither practical, realistic, nor constitutionally required.

The majority characterizes the actions of defendants here as “book-banning,” the “archetypical symbol of repression” in a free society.  (Maj. opn., ante, p. 32.)   With due respect, while hyperbole has its uses, it adds nothing to the resolution of this controversy to summon up the ghost of Dr. Goebbels and other anti-intellectual totalitarians of his ilk.   Defendant Board, entrusted with the discretion to make educational choices, simply removed certain books from the school library which it found patently offensive and thus educationally unsuitable.   The books were neither burned nor, in the pejorative sense that the word commonly conveys, banned.   Students are free to read the removed books, which they may borrow from a public library or from a friend or purchase at a bookstore.   The removed books thus remain available to any student through the exercise of no more than modest effort and students are free to discuss their content in the appropriate classroom or elsewhere.  (See Pico, supra, 457 U.S. at pp. 886, 910–912, 102 S.Ct. at pp. 2818, 2830–2831, 73 L.Ed.2d at pp. 459, 474–475 (dis. opns. of Burger, C.J. and Rehnquist, J.).)

The issue here does not turn upon whether the books in question are legally obscene as to minors, or whether the Board was engaged in the process of acquisition rather than removal, but simply whether school authorities, absent sufficiently compelling reasons, were engaged in an attempt to suppress ideas for the sole purpose of suppressing those ideas.  (See Pico, supra, 457 U.S. at p. 877, 102 S.Ct. at p. 2813, 73 L.Ed.2d at p. 453.)   In this regard, Justice Blackmun's partial concurrence in Pico expounds a workable standard:  “school officials may not remove books for the purpose of restricting access to the political ideas or social perspective discussed in them, when that action is motivated simply by the officials' disapproval of the ideas involved.”  (Emphasis in original;  Pico, supra, 457 U.S. at pp. 879–880, 102 S.Ct. at pp. 2814–2815, 73 L.Ed.2d at pp. 454–455 (conc. opn. of Blackmun, J.);   see also Zykan, supra, 631 F.2d at p. 1306.)

Conversely, “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.  [E]ven absent space limitations, First Amendment principles would allow a school board to refuse to make a book available to students because it contains offensive language, [citation], 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.’  [Citation.]  And, of course, school officials may choose one book over another because they believe one subject is more important, or is more deserving of emphasis.”  (Emphasis added;  Pico, supra, 457 U.S. at p. 880, 102 S.Ct. at p. 2815, 73 L.Ed.2d at p. 455 (conc. opn. of Blackmun, J.).)

Justice Blackmun's formulation balances the competing interests involved.   Where a school board, motivated by ideological preference or orthodoxy, singles our particular ideas and library books for exclusion (see Zykan, supra, 631 F.2d at p. 1306), judicial intervention is warranted to protect the basic constitutional values which ensure the diversity of ideas so fundamental to the American democratic system.  (See Pico, supra, 457 U.S. at p. 880, 102 S.Ct. at p. 2814, 73 L.Ed.2d at p. 455 (conc. opn. of Blackmun, J.);   see also Epperson v. Arkansas, supra, 393 U.S. at pp. 104–105, 89 S.Ct. at p. 270–271, 21 L.Ed.2d at p. 234.)   Although the discretion lodged in school boards is circumscribed by constitutional considerations of academic freedom, the schools nonetheless must retain wide latitude in performing their inculcative role within the community.   Even within the permissive environment of the school library, high school students lack the “intellectual skills necessary for taking full advantage of the market place of ideas,” engendering “a correspondingly greater need for direction and guidance from those better equipped by experience and reflection to make critical educational choices.”   (See Zykan, supra, 631 F.2d at p. 1304.)

More importantly, the discretion accorded school boards is essential if they are to remain “uniquely local and democratic institutions” directly responsible to the parents and citizens within the school districts.  (See Pico, supra, 457 U.S. at p. 894, 102 S.Ct. at p. 2822, 73 L.Ed.2d at p. 464 (dis. opn. of Powell, J.).)   Such discretion, of course, necessarily allows local school boards to make ill-advised and imprudent library book decisions without risk of judicial interference.  (Zykan, supra, 631 F.2d at p. 1306.)   Yet, judges “rarely are as competent as school authorities” to determine educational suitability, nor are they “responsive to the parents and people of the school district.”  (Pico, supra, 457 U.S. at pp. 894, 921, 102 S.Ct. at pp. 2822, 2835, 73 L.Ed.2d at pp. 464, 481 (dis. opns. of Powell and O'Conner, JJ.).)   In short, “nothing in the Constitution permits the courts [to act as super censors and] interfere with local educational discretion until local authorities begin to substitute rigid and exclusive indoctrination for the mere exercise of their prerogative to make pedagogic choices regarding matters of legitimate dispute.”  (Zykan, supra, 631 F.2d at p. 1306.)

Under the standards which emerge from Pico, Hazelwood, and Bethel, defendants' removal of the five Brautigan books does not directly or sharply implicate First Amendment rights.   As acknowledged by plaintiffs, the undisputed facts reveal the Board, after being advised by faculty and administrative committees, removed the five Brautigan books from the high school libraries because of their vulgar language and sexual explicitness.   It is not disputed that these books do contain sexually explicit and vulgar passages.   Moreover, it is clear that the removal decision of the Board was not motivated by a desire to advance a shared orthodoxy by stifling political, religious, or social ideas inimical to its world view.  (See Pico, supra, 457 U.S. at pp. 879–880, 102 S.Ct. at pp. 2814–2815, 73 L.Ed.2d at p. 455 (conc. opn. of Blackmun J.);   see also Bicknell v. Vergennes Union High School Bd., etc. (2d Cir.1980) 638 F.2d 438, 441.)   There was no “pall of orthodoxy” cast here.  (Cf. Keyishian v. Board of Regents of New York (1967) 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629, 640.)   Indeed, the fact the Board retained two of the seven Brautigan books it had reviewed suggests a selectivity independent of any rigid perspective.   Plaintiffs' First Amendment rights were not abridged here and they were not entitled to summary judgment.

I would reverse the judgment entered in favor of plaintiffs.

FOOTNOTES

1.   “ ‘Shall we therefore allow our children to listen to any stories written by anyone, and to form opinions the opposite of those we think they should have when they grow up?’‘We certainly shall not.’‘Then it seems that our first business is to supervise the production of stories, and choose only those we think suitable, and reject the rest.   We shall persuade mothers and nurses to tell our chosen stories to their children and so mould their minds and characters rather than their bodies.   The greater part of the stories current to-day we shall have to reject.’ ”  (Plato, The Republic (Penguin Books 1955) pp. 114–115.)

2.   In pertinent part, the Academic Freedom Policy reads:“The school board holds to the belief that teachers and librarians should play a key role, in cooperation with school district administrative personnel, in the selection of the materials of instruction.   The board, acting accordingly, gives to the professional staff the responsibility for scholarly appraisal of such materials (other than state-adopted texts) to be placed in classrooms and libraries.“․”“In case of a difference of opinion by ․ teachers [Professional Relations Committee] and administration [Administrative Council], materials will not be used until resolved by board.   Specific instructional materials do not require the board's acceptance prior to use in a school when such materials are appropriate to the overall purpose of instruction previously approved by that board.   Under stated rules and regulations [the] school board delegates to the administrators and teachers the authority to select and use instructional materials, whether or not they are deemed to be controversial.“When the choice of instructional materials is questioned, the school board will cooperate with the teaching and administrative staff, using resources of scholarship and professional judgment, to arrive at defensible decisions.   The welfare of students is the final, cogent criterion.”In another part, the Academic Freedom Policy provides the following guidelines for basing judgments on matters pertaining to academic freedom:“1. The welfare of students, individually and collectively, in the present and for the future.“2. The intellectual maturity of the student.“3. The standards and beliefs of responsible citizens of the community.“4. The security and dignity of teachers, administrators and other professional workers.“5. The status of the problem or issue within the framework of a law as set forth by the Education Code.“6. In the case of instructional materials, the informative, literary and general cultural values which may assist students in intellectual growth and habits of critical thought.“7. The reasonable efficiency and unity of the school as an institution with stated goals of service.“8. Informed opinion available in policy statements regarding academic freedom, which have been issued by organizations of teachers, administrators, parents, school board members and other citizens with special interest in public education.”

3.   This terrain received recent, albeit murky, illumination in Board of Education v. Pico (1982) 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435.   In that case the Supreme Court upheld (by a fragmented 5–person majority) reversal of a summary judgment in favor of a New York school district that had removed nine books from a high school library.   Justice White concurred on procedural grounds, abjuring issuance of advice on the merits.  (Id., 457 at pp. 883–884, 102 S.Ct. at pp. 2816–2817, 73 L.Ed.2d at pp. 457–458.)   The plurality expressed the view that the First Amendment constraint is transgressed if the purpose of the Board is to deny students access to ideas with which Board members disagreed and if that purpose was the decisive factor in the book removal action.  (Id., at p. 871, 102 S.Ct. at 2810, 73 L.Ed.2d at pp. 449–450.)   The plurality analysis proceeds from the unexamined stipulation of the parties that books could be properly removed on the (undefined) grounds of “pervasive vulgarity” or “educational unsuitability.”  (Ibid.)

4.   Section 313 currently defines obscenity in relation to minors, in subdivision (a), as:  “ ‘Harmful matter’ means matter taken as a whole, the predominant appeal of which to the average person, applying contemporary statewide standards, is to prurient interest, meaning a shameful or morbid interest in nudity, sex, or excretion, and is patently offensive to the prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and lacks significant literary, artistic, political, educational, or scientific value for minors.”  (Stats.1986, ch. 51, § 4;  Stats.1988, ch. 1392, § 4.)

5.   The amendments to article XI derive from the work of the Constitutional Revision Commission.  (See art. XI, as revised on June 2, 1970.)   As noted, section 7 of the amended law is identical to former section 11 of article XI.   The amendments contain a savings clause which provides that amendments relating to the substantive powers of local governments are not intended to alter the law of preemption.  “The provisions of Sections 1(b) (except for the second sentence), 3(a), 4, and 5 of this Article relating to matters affecting the distribution of powers between the Legislature and cities and counties, including matters affecting supersession, shall be construed as a restatement of all related provisions of the Constitution in effect immediately prior to the effective date of this amendment, and as making no substantive change.  [¶]  The terms general law, general laws, and laws, as used in this Article, shall be construed as a continuation and restatement of those terms as used in the Constitution in effect immediately prior to the effective date of this amendment, and not as effecting a change in meaning.”  (Art. XI, § 13.)   The sections referred to (§§ 3(a), 4, and 5) provide the general lawmaking authority of cities and counties.   Thus, in maintaining the prior law of supersession, or preemption, section 13 codified the caselaw which defined the extent of the authority of the courts to determine the law, including the common law, with which a local regulation was in conflict.   Thus, e.g., In re Koehne (1963) 59 Cal.2d 646, 30 Cal.Rptr. 809, 381 P.2d 633, In re Porterfield (1946) 28 Cal.2d 91, 168 P.2d 706, and Chavez v. Sargent (1959) 52 Cal.2d 162, 339 P.2d 801 hold that the terms “laws” or “general laws” in article XI, section 11 (now § 7) includes the common law.

6.   The range of criteria of offensive content which has led to attacks on library holdings would cut a broad swath through the shelves.   (See Kinsella, Book Banning on the Rise (1983) 3 Cal.Law. No. 2, p. 33.)   The temptation to take up these manifold cudgels is real and widespread.   (See Ibid., one in five responding schools and libraries reported challenges to educational materials in a recent nationwide study.)   If one admits vulgarity as a criterion for banning how can one object to banning based on anti-semitism.  “Oliver Twist” and “The Merchant of Venice” are objectionable to some on this ground.  (See Rosenberg et al v. Bd. of Education of City of New York (1949) 92 N.Y.S.2d 344, 196 Misc. 542.)   As with Pandora's Box there is no way to acceptably limit censorship.

7.   This state of affairs is foreshadowed in the following poem from The Pill Versus The Springhill Mine Disaster (1968), entitled “Education”, one of the books removed by the Board:“There is a womanon the Klamath Riverwho has fivehundred childrenin the basement,stuffed likehornets intoa mud nest.Great Sparrowis their father.Once a dayhe pulls ared wagon betweenthem andthat's allthey know.”  (p. 20.)

1.   The Pico plurality distinguished removal of library books from their acquisition.  (Pico, supra, 457 U.S. at 862, 102 S.Ct. at p. 2805, 73 L.Ed.2d at p. 444.)

2.   In fact, while there were numerous concurring and dissenting opinions in Pico, all members of the court acknowledged local school boards have the authority to remove books that contain offensive language.  (Pico, supra, 457 U.S. at pp. 871–872, 102 S.Ct. at pp. 2810–2811, 73 L.Ed.2d at pp. 449–450 (plur. opn.);  id., at p. 879–881, 102 S.Ct. at pp. 2814–2815, 73 L.Ed.2d at pp. 454–456 (conc. opn. of Blackmun, J.);  id., at pp. 890–891, 102 S.Ct. at pp. 2820–2821, 73 L.Ed.2d at pp. 461–462 (dis. opn. of Burger, C.J.);   see also Bethel, supra, 478 U.S. at p. 684, 106 S.Ct. at p. 3165, 92 L.Ed.2d at p. 559.))

BLEASE, Associate Justice.

CARR, J., concurs.

Copied to clipboard