St. Mary's Law Journal


Kelsey Menzel


Scholars generally agree children possess fewer rights than adults under the Constitution. Moreover, the school, as a restricted environment, places additional constraints on the constitutional rights of minors. In recent years, however, the Supreme Court extended to minor students the rights of equal protection and civil due process. In Tinker v. Des Moines Independent Community School District, the Court acknowledged children have First Amendment rights of self-expression in a school environment. This marked a significant change from the judiciary’s traditional reluctance to interfere in school matters. Subsequent First Amendment challenges to school board decisions have focused on library book removal. The primary challenge to the removal of school library books rises from a First Amendment interest in receiving information, a corollary of freedom of speech referred to as a “right to know.” Pico v. Board of Education. is the first book removal case the Supreme Court heard. The Court held a school board may not remove library books solely for ideological reasons. However, the holding in Pico is weak both numerically and substantively since it is a plurality opinion with which the fifth justice concurs on grounds other than the constitutional issue presented. Further, the plurality fails to provide concrete guidelines for avoiding infringement of a student’s First Amendment interests. The lack of guidelines reflects the minimal restrictions which the Pico holding actually imposes on the schools. To avoid impropriety in removing a book from the library, a board need only have some sort of procedure for evaluating “objectionable” books with constitutionally neutral criteria and follow the procedure. However, the ultimate significance of the Pico opinion is, given the opportunity, the Supreme Court did not recognize a right to know as a constitutional right.


St. Mary's University School of Law