Tuesday, November 17, 2009

Vamos a Cuba?

In the midst of my sharp criticism of SafeLibraries, I think it only fair to mention a positive note.  In spite of a small excess of drama, his post today on Vamos a Cuba was fairly accurate.

The case was about the removal of a book titled Vamos a Cuba from a school library.  The school board claimed it removed the book due to factual inaccuracies, while some citizens felt their motivation was political. The aggrieved citizens had their day(s) in court, and lost.  In February an appeals court made their determination that the motivation of the school board was what they claimed: one of factual accuracy.  This is newsworthy now because the US Supreme Court just declined to hear an appeal, making the decision of the appeals court final.

There is nothing surprising or dramatic in this case.  The power of a school board to regulate the educational content of both classroom and school library is well established (at least since the Board v. Pico case of 1982, if not earlier).  School boards can make choices about books as long as their motivations are genuinely pedagogical, and not mere disagreement with the views expressed in any book.

In this case, the US Court of Appeals for the 11th Circuit examined the contents of the challenged book and the claims made by the school board.  The court sided with the school board in two important details: 1) that the book contained factual errors, and 2) these factual errors were the reason the school board chose to remove the book.  Those determinations being made, it was then clearly within the power of the school board to remove the challenged book from the school library. The ACLU's attempt to appeal that decision to the US Supreme Court was quite a long shot indeed, and did not succeed.  It was a long shot because the Supreme Court would generally prefer to rule only on the constitutional issues at hand, and there didn't seem to be any left.  It would be very unusual for the Supreme Court to override the appellate court's findings of fact about the errors in the book or the motivations of the school board.  Recall that in the Pico case, the Supreme Court defined the constitutional limits on the school board's power, then sent the case back to a lower court for determination of the facts about the school board's motivations (at which point the school board gave up).

The drama that SafeLibraries would like to believe is implied by this case comes from statements by former Miami-Dade school board chair Frank Bolanos.  While the court's own logic was quite clear, and quite mundane, Mr. Bolanos puts a more strident spin on things. Mostly, Bolanos reveals his own mis-comprehension of the legalities.  News sources have him proclaim that "the case sets precedent for districts to back parents' rights in future cases."  Of course, no parental rights were tested in this case.  The decision rests entirely on the broad powers of a school board to regulate the educational content of schools, provided the board is genuinely motivated by educational concerns rather than disagreements with point of view.  Mr. Bolanos is also quoted as saying, "Censorship occurs when government refuses to allow people to purchase material, not when it refuses to provide that material at no charge."  Here, Mr. Bolanos clearly does NOT know what he's talking about, as his attempt to redefine the term censorship would break sharply with court precedents. The court in this matter made no such determination.  They were more practical, sticking to the factual determinations they had to make about what motivated the board to remove the book.  Mr. Bolanos, would do well to follow the example, set by the court, of sticking to the facts.

For the more legal minded: the decision of the 11th Circuit Court of Appeals can be retrieved from that court's website at: 


And can also be found through Westlaw and other law databases, where it is indexed variously as 557 F.3d 1177, 242 Ed. Law Rep. 519, and 21 Fla. L. Weekly Fed. C 1467.

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