Posted by Eugene Volokh: What May a School Board Do When It Concludes an Elementary School Library Book Omits Important Information? http://volokh.com/archives/archive_2009_02_01-2009_02_07.shtml#1233952479
A [1]U.S. Court of Appeals for the Eleventh Circuit panel just handed down a monster 177-page decision on the subject (with a two-judge majority and a one-judge dissent). I think the majority got it mostly right, in upholding the school board's decision about the book; and I wanted to blog a few posts about various aspects of the problem. 1. The concrete details (albeit necessarily oversimplified): The Miami-Dade school district had a bunch of copies of A Visit to Cuba and its Spanish version Vamos a Cuba. The book (the text of which is included at pp. 175-77 of the [2]decision) is a short and bland item, with no mention at all that Cuba is an oppressive dictatorship. Many people objected to the book on the grounds that this omission (plus some other items) made the book inaccurate; the school board eventually removed the book. The question is whether this removal violates the First Amendment. The question that the panel discussed was "whether the School Board was motivated to remove Vamos a Cuba because of inaccuracies [in the book]" as opposed to "simply because [the Board members] dislike the ideas contained in [the] book[]." (As I'll mention later, that might not be the right constitutional standard, but the majority used the standard because it was in its view the most plaintiff-friendly plausible standard, and yet the plaintiffs would lose even under it.) Some of the discussion was about some relatively minor inaccuracies -- for instance, whether a particular illustration properly depicts "paintings made by people who lived in Cuba about 1,000 years ago" (it doesn't) -- but it's pretty clear that the removal decision wasn't based on those inaccuracies. Much of the discussion was about the supposed inaccuracy of the statement that "People in Cuba eat, work, and go to school like you do." The majority repeatedly and sharply condemned this statement as inaccurate, on the grounds that "It is simply not true that people in Cuba �eat, work, and go to school� the same way that American children do." "[I]n Cuba food is rationed by the government." "In Cuba there is �little private work,� and �it [is] a crime to exercise private initiative or to have private practice of a profession.�" "The book�s assertion that people in Cuba go to school �like you do� is false, too. In addition to agricultural field work being a mandatory part of school for Cuban children, the Human Rights Report found that elementary and secondary students receive �obligatory ideological indoctrination.�" But while I sympathize with the majority's position, I think it places too much weight on one interpretation of "like you do." As the dissent points out, "It appears fairly evident that this short sentence is meant to show simply that other children in other cultures also do those things" -- basically, "You eat, work, and go to school, and so do people in Cuba." The very next sentence does say, "Life in Cuba is also unique," and the rest of the book mentions differences in food, schooling, and work. I think it's unlikely that a 4-to-8-year-old reading the book will assume "like you do" means "in exactly the same way as you do." 2. The real problem with the book, it seems to me, is not with any inaccurate statements the book makes. It's with what the book excludes, and thus with the overall picture that it paints (something that the majority and the critics of the book also stress). The book omits what to many people is the most important fact about Cuba -- that it's an oppressive Communist dictatorship. To be sure, this is a fact that isn't trivial to convey to 4-to-8-year-olds, but something of it could be conveyed (other books in the series mention the dire poverty or the legacy of war in other countries). And it's the absence of this fact that makes the book misleading. As the opinion points out, the book is not that different from an "A Visit to 1930s and 1940s Germany" that omitted any mention of anti-Semitism or tyranny, or "A Visit to the early 1800s American South" that omitted any mention of slavery. Whether or not the book said "People in the Third Reich [or 1830 Alabama] ate and worked like you do," the main problem would be in what the book excluded not with what it included. 3. It seems to me that elementary schools are eminently entitled to exclude books that omit such important information from their libraries. An elementary school library is a place where the school itself provides books that its management (ultimately, the public) thinks are worthwhile for students, and that its management is prepared to endorse. What's more, the young readers are unlikely to read the books with great skepticism, nor are they likely to use each book as a starting point for a broader research program on the subject. (Occasionally, a child will get excited about a topic and want to read much more about it, but not often and certainly not always.) The school should be entitled to make sure that a book it includes in its library adequately conveys the information in a way that doesn't leave an unduly misleading impression. (I say "unduly" because this will always be a matter of degree; any short book, and for that matter any long one, will always oversimplify things in certain ways that may end up misleading people.) The school need not do so in all instances. But it should be free to do so when it chooses. The dissent's response -- "The answer to books that do not provide all the information a reader wants is to find another book. If a reader is curious about the Castro regime, he can find another book that enlightens him further." -- doesn't work. The school is aware that many readers won't want to find another book, and of course many readers who read the bland summary of Cuba won't be curious about the Castro regime because they won't even know about the Castro regime, and wouldn't be curious about it even if the book mentioned the word "Castro." The school should be able to make sure that even readers who read this one book won't come away with a picture of Cuba that omits a fact that the school reasonably believes to extremely important. 4. The dissent also responds by arguing that the School Board was really motivated by "a political motive" -- by the school board's disagreement with the "ideas or points-of-view" that the book conveyed -- rather than by "legitimate pedagogical concerns" such as the possibility that the book conveyed "inaccuracies by omission." And of course the critics of the book did loathe Castro's regime, and thought the book conveyed a bad point of view. But they thought it conveyed a bad point of view precisely because they thought the book was inaccurate by omission. The book effectively conveyed the message that Cuba is much like America, except somewhat poorer and with a somewhat different lifestyle. Whether that's accurate or not depends on your viewpoint about the significance of its being an oppressive dictatorship. The worse the Castro regime is in your view, the more inaccurate the book is by omission. Most decisions about what facts to include and which to exclude are subjected. Some people might think that including some fact is important; others might disagree. Much of the judgment will turn on their viewpoints about the significance of various evils (or goods), about what the most important take-away message from some event or circumstance might be. One can't entirely be "viewpoint-neutral" in evaluating claims of inaccuracy by omission, especially as to controversial topics, because what is a significant omission and what's not is inherently tied to one's viewpoint about the events. I think that on balance this is an excellent illustration for why there shouldn't be any constitutional problem even with School Board members' removing a book "simply because they dislike the ideas contained in [the] book[]." But even if one takes the view that removal is permissible only when the book is inaccurate (or vulgar or some such), the School Board's decision that this book is inaccurate strikes me as eminently defensible -- in my view, actually correct, but in any case well within the School Board's rightful discretion to control what messages it conveys through its elementary school libraries. I'll try to post later today about the constitutional precedent on the subject (the short summary is that the matter is [3]highly unsettled), on whether it should make a constitutional difference that the School Board reversed the decisions of other review committees that would have retained the book (I will argue that it shouldn't), and more broadly on whether there should be any Free Speech Clause constraints on school library decisions in this area (I will argue that there shouldn't be, either as to acquisition of books or as to removal of books). References 1. http://www.ca11.uscourts.gov/opinions/ops/200614633.pdf 2. http://www.ca11.uscourts.gov/opinions/ops/200614633.pdf 3. http://volokh.com/posts/1221512515.shtml
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