Dawg Bones

Book removal: what do the cases tell us?

WE’RE ZOOMING WITH THE DAWG THIS MORNING AT 10!  I HOPE TO SEE MANY LOYAL DAILY DAWG READERS.  KATIE PAYNE FROM OUR FIRM’S SAN ANTONIO OFFICE WILL BE JOINING ME FOR A DISCUSSION OF THESE “BOOK REMOVAL” CASES.  BE THERE!

This week we have reviewed three important court cases involving decisions by a school board to take certain books out of the school library. Today I offer a few takeaways from these cases. 

  1.  You have to start with the reality that the school library is paid for with public funds, which are entrusted to the management of school officials. Ultimately, that means the school board.  This is why we call them “trustees.” They are entrusted to manage all school operations in a way that supports the basic mission of our public schools.
  2. Courts will generally not interfere with school board decisions.  When decisions involve judgment and discretion, such as in the case of what books should be in the library, courts start out with a great deal of deference to the decisions of the elected trustees.
  3. But that’s not the end of it.  These cases make it clear that members of the school board do not have “unfettered” discretion.  There are fetters.  
  4. Board members and state-level educational officials have more discretion over curriculum content and textbook selection than they do over library books. That’s because the curriculum and the textbooks (or other instructional materials) are required.  They should promote the ideas and values that we seek to pass on to the next generation.  The library is different. No one is forced to read a book from the library.  If the library does not include some books promoting ideas you disagree with, you don’t have much of a library.
  5.  The critical issue in these court cases is motivation. Why did the board choose to order the removal of this particular book? 
  6. Courts determine motivation by what is done and by what is said. We highlighted three prominent cases this week and in two of them the court claimed that it did not yet have enough information to decide about the board’s motivation. The third case (Miami-Dade) had a more robust record of board statements on the record. Based on those statements, the court was persuaded that the board’s motivation was to promote accuracy, rather than to suppress ideas.
  7. The failure to follow existing district policy raises red flags. It will cause a court to want to know: why did they do that? 
  8. Whoever makes the decision should read the entire book.  Failure to do so is another red flag.
  9. Decisions to remove a book based on pervasive vulgarity, graphic sexuality, educational unsuitability, or factual inaccuracy are more likely to be approved by a court, as opposed to decisions that smack of “we don’t agree with what this book says.”
  10. TASB has promulgated a good policy that addresses these issues. Take a look at EF Legal and Local.  

I’m going to make one more point here, and it’s a good time for me to remind you that the Daily Dawg sometimes includes opinions, and that I am the only person responsible for those opinions. So here is one of them: it would be a good idea if all of us were more precise in our language about what is going on in these book controversies.  In the 11th Circuit case from Florida, the court spends many pages drawing a distinction between “banning” a book and “removing” the book from the school library. The court points out that school boards have never “banned” a book. They don’t have that power.  Books that are taken out of the school library are available on Amazon and many other places.  Moreover, sales of such books go through the roof. We would be more accurate if we were more precise. School boards sometimes order that a book be “removed” from the library or that access be restricted.  Let’s quit accusing school board members of “banning” books.

DAWG BONE: SEE YOU AT 10, LOYAL DAILY DAWG READERS!!

Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com.