ACLU v. Miami-Dade County Sch. Bd., No. 06-14633 (11th Cir. Feb. 5, 2009)
The U.S. Court of Appeals for the Eleventh Circuit (AL, FL, GA), in a 2-1 panel split, has ruled that the Miami-Dade County School Board’s (MDCSB) decision to remove the book ¡Vamos a Cuba from elementary school libraries did not violate the plaintiffs’ free speech or due process rights. In addition, the Eleventh Circuit ruled that the plaintiffs did not have legal standing to challenge the board’s decision to remove the other 23 books that make up the series of books of which ¡Vamos a Cuba is a part. The lawsuit brought by the American Civil Liberties Union (ACLU) and the Miami-Dade County Student Government Association (MDCSGA) grew out of an intense community dispute that began when a Cuban exile and former political prisoner filed a complaint with MDCSB requesting the book's removal on the grounds that it paints a distorted picture by ignoring the repressive nature of Cuba's totalitarian political regime. Under established school board rules, this request was reviewed by two committees and the superintendent before being sent to the board for action. Both review committees, citing U.S. Supreme Court precedent, recommended the books remain on the shelves. After failing to broker a compromise, Superintendent Rudy Crew joined this recommendation. Nonetheless, the board voted 6-3 to replace not only the books about Cuba, but the entire series. A federal district court in Florida issued a preliminary injunction to block the action, concluding that the plaintiffs had raised valid free speech and due process claims.
The Eleventh Circuit vacated the preliminary injunction and remanded the case to the district court. The appeals court first addressed what legal standard should be applied to determine if a school board’s decision to remove a book from a school library is constitutional. The court questioned the plaintiffs’ assertion, which had been accepted by the lower court, that MDCSB’s action should be judged by the standard established by the U.S. Supreme Court in Island Trees Union Free School District v. Pico, 457 U.S. 853 (1982). Under Eleventh Circuit precedent in Muir v. Alabama Educational Television Commission, 688 F.2d 1033 (5th Cir. 1982) (en banc)—the Eleventh Circuit formerly was part of the Fifth—“Pico has no precedential value as to the application of First Amendment principles to the school’s decision to remove the books from the library.” But the court also declined to embrace MDCSB’s argument that the standard established by the U.S. Supreme Court in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), should apply because library selection would be considered “school-sponsored speech.” In fact, the court found it unnecessary to decide which standard applies.
“Even if the plaintiffs won the argument about the applicable standard and got the one of their dreams,” the court ruled, “the furthest we could possibly go in their favor is the standard that failed to attract a majority in the Pico case: school officials may not remove books from library shelves ‘simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’” Even under this standard, the evidence did not support the plaintiffs’ contention MDCSB removed the book for those prohibited reasons. Instead, there was evidence of factual inaccuracies in the book, and the evidence established that the board’s decision rested on “legitimate pedagogical reasons” such as this. The court noted that the plaintiffs themselves conceded that the school board has the authority to remove books based on educational unsuitability, and that one such criterion for a nonfiction book is factual accuracy.
The Eleventh Circuit also rejected the plaintiffs’ argument that MDCSB’s action constituted a due process violation because the Board violated its own regulations by removing the book from libraries other than the one from which the complaint originated. “The root requirements of due process were amply met,” the court held. “The plaintiffs had notice and an opportunity to be heard. They were heard. Moreover, to the extent that “the School Board did not adhere to its regulations—and we think that it did—the plaintiffs still were not deprived of their due process rights.”
ACLU v. Miami-Dade County Sch. Bd., No. 06-14633 (11th Cir. Feb. 5, 2009)
[Editor’s Note: Unlike the majority, the dissent refers to the board’s action as book banning. While the dissent also declined to determine the standard under which the board’s action judged, it concluded: “The greater weight of the credible evidence supports the district court’s finding ‘that the majority of the Miami-Dade County School Board members intended by their removal of the books to deny schoolchildren access to ideas or points-of-view with which the school officials disagreed, and that this intent was the decisive factor in their removal decision.’” A summary of the district court’s opinion is below.
Meanwhile, the Los Angeles Times reports below that a California school board is accused of book banning, and may face legal action, over its decision to remove Bless Me, Ultima, a Chicano coming-of-age novel by Rudolfo Anaya, from its sophomore required reading list. The school library will continue to offer the novel, which teachers said helped them connect with their Latino students, who make up two-thirds of the district. The district cites excessive profanity in the book, although the article says the district’s review of the book was prompted by a parent's complaint last year that it was "anti-Catholic" and sexually explicit. An overview of the law in this area is at the last link.]
NSBA School Law pages on ACLU v. Miami-Dade County Sch. Bd.
Los Angeles Times, 2/4/09, By Seema Mehta
NSBA Inside School Law on controversial content