Dawg Bones

The 5th Circuit grapples with a book-removal case.

Next Wednesday our firm offers an insightful webinar aimed at diagnosticians, LSSPs, speech therapists, special education directors and anyone else interested in Legal Issues for Evaluation Personnel.  Hope you can join Kelly Janes and Jamie Turner for this practical guide to conducting and reviewing evaluations. Sign up at www.walshgallegos.com. 

I would guess that it was the second half of Voodoo and Hoodoo that the parent objected to. The court described this book by Jim Haskins as “facially serious and scholarly” as it “traces the development of African tribal religion, its transfer and evolution in the New World” and “its survival in the United States through the current practice of two variations of the original African religion, voodoo and hoodoo.”  The second half of the book, however, “is devoted to a presentation of ‘spells,’ ‘tricks’ ‘hexes,’ recipes,’…that outline, in how-to form, the way to bring about particular events.” Like putting a curse on someone you don’t like. 

The parent of a 7th grader, supported by the Louisiana Christian Coalition, asked that the book be pulled from the library.  The school had a policy about this, which it followed.  First, there was a School-Level committee as per the recommendations of the Library Media Director’s Handbook.  The five-person committee unanimously recommended that the book should be kept in the library, with access limited, however, to 8th graders with written parent permission.  The committee noted that the book “fulfills the purpose for which it was selected, that is, to offer supplemental information/explanation to a topic included in the approved 8th grade Social Studies curriculum.”

From there, the matter went to the Appeals Committee, appointed by the superintendent. Again, this was all per school district policy.  That group voted 6-1 to affirm the decision of the School-Level Committee. That one dissenter was a school board member.

The parent appealed the Appeals Committee decision to the 14-member school board.  After hearing from the Appeals Committee, the Christian Coalition, and considering the petition seeking the book’s removal signed by 1,600 people, the board voted 12-2 to remove the book.  Then the lawsuit by parents who wanted the book to be kept in the school library. 

The 5th Circuit took its cues from the Pico case we told you about Monday and Tuesday of this week.  The court noted that the decision in Pico was a plurality, rather than a legally binding precedent from a majority of the Court.  Despite that, the 5th Circuit said that the Pico case “may properly serve as guidance.”  That meant that the key issue here was going to be the true motivation of the school board, or at least of the 12 who voted for removal of the book.

There, the court punted, noting that “At this stage, we simply do not have a full picture of the reasons why the School Board members constituting the majority voted to remove the Book.”  The case had not had a full trial where all those factual issues would be sorted out.  The end result was just like in Pico: the case was remanded for a full trial. 

However, the court offered some thoughts on fact issues that cast shade on the actions of the board.  They were:

  1. The school library is a special place of free inquiry.  The legal analysis of the library is different from the analysis of what is in the required curriculum.   School board members have more discretion with regard to curriculum, rather than what books are in the library, where students read only what they want to read.  
  2. This book had been in the library for a long time.
  3. Some of the 12 school board members had not read the book, some had read only parts. Some only looked at the excerpts provided by the Christian Coalition.
  4. The board ignored the recommendations of two committees, thereby deviating from its own policy.

School board members today who are grappling with these issues should keep those factors in mind. The 5th Circuit noted that these circumstances “cannot help but raise questions regarding the constitutional validity of its decision.”

It’s Campbell v. St. Tammany Parish School Board, decided by the 5th Circuit on September 15, 1995. It’s located at 64 F.3d 184.

DAWG BONE:  FIRST SCOTUS, NOW THE 5TH: REMAND THE CASE TO DETERMINE WHAT THOSE BOARD MEMBERS WERE REALLY THINKING.

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

Tomorrow: it could only happen in Miami