61 Fla. L. Rev. 921 (2009) | | | |

INTRODUCTION :: Juan Amador, a self-described political prisoner from Cuba, was outraged when he read the inaccurate portrayal of life in Cuba contained in Vamos a Cuba!, a book in his daughter’s elementary school library. Amador promptly requested that the school remove the book from its library because the book was untruthful and “‘portray[ed] a life in Cuba that does not exist.'” At the end of a lengthy, four-tiered administrative review process, the Miami-Dade County School Board (School Board) voted to remove the book from all school district libraries.

In response, another parent and two organizations, the American Civil Liberties Union (ACLU) and the student government association, sued the School Board in federal district court, alleging that its actions violated the First Amendment and the Due Process Clause. The district court denied the Board’s motion to dismiss the complaint, issued a preliminary injunction enjoining the School Board from enforcing its removal order, and ordered that any books already removed be returned to the district’s libraries. On review, the Eleventh Circuit vacated the preliminary injunction, remanded the case, and HELD that even if the First Amendment applied to book removal decisions, the Board’s actions did not violate it.

Neither teachers nor students forsake their constitutional rights to free speech or expression at the schoolhouse gate. The Supreme Court has repeatedly affirmed the importance of First Amendment protections in the school context while also recognizing the authority of school officials to control student conduct. Because school libraries play an integral part in facilitating classroom discussion, federal courts generally view the removal of books by school boards for censorship purposes as imposing a serious burden on freedom of discussion, implicating First Amendment protections. Therefore, while courts often grant school boards significant discretion in determining the contents of school libraries, a school board’s motivation for removing a book is subject to scrutiny in cases challenging book removal decisions.

In this area of the law, the primary guide for federal courts is the Supreme Court’s decision in Board of Education v. Pico. In Pico, the petitioner school board gave an unofficial directive that certain books be removed from library shelves and delivered to it for review. The school board later issued a press release justifying its actions, characterizing the books as “‘anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy,'” and announcing that it had a duty, a “‘moral obligation,'” to protect children from the danger presented by the books. After reviewing a claim challenging the school board’s actions under the First Amendment, a plurality of the Supreme Court affirmed the Second Circuit’s decision to remand the case for trial.

Because of the fractured nature of the Court’s decision, however, the case did not establish a binding First Amendment standard for book removal cases. Justice Brennan, writing the lead opinion, found that the First Amendment prohibited school boards from removing books “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.'” A school board could constitutionally remove a book, however, if the book lacked “educational suitability.” Only two justices, Justice Marshall and Justice Stevens, joined Justice Brennan’s opinion in full. In a concurring opinion, Justice Blackmun agreed with Justice Brennan’s First Amendment standard, but also formulated his own standard. In addition, according to Justice Blackmun, a school board could constitutionally remove a book if it contained offensive language, if it was not appropriate for its intended age group, or if the ideas it advanced were “‘manifestly inimical to the public welfare.'” Justice White did not express an opinion on the First Amendment question, but voted with the plurality for purely procedural reasons.

Ultimately, only four Justices in Pico found that the First Amendment applied to book removal cases. Four other Justices dissented, finding that the First Amendment did not apply at all. The final Justice expressed no opinion on the constitutional issue. In effect, then, there was no majority decision on whether the First Amendment applies to book removal decisions. Therefore, federal courts interpret Pico as a non-precedent, despite the plurality’s articulation of a constitutional standard, because the Court failed to establish a clear and binding First Amendment standard in book removal cases.

To complicate matters, the Court never decided another book removal case. In Hazelwood School District v. Kuhlmeier, the Court addressed the applicability of First Amendment protections to a school-sponsored student newspaper, which was described as a part of the school curriculum. It is unclear, however, whether book removal decisions are an aspect of school curriculum and therefore subject to the Hazelwood standard.