11th Circuit Backs Miami-Dade School’s Removal of Book About Cuba From School Library

An opinion that was handed down by a divided panel of the 11th Circuit yesterday in American Civil Liberties Union v. Miami-Dade County is bound to be controversial: the court held, among other things (the opinion plus dissent run 177 pages) that a school board in Miami was justified in removing from the bookshelves of a school library a book that painted an unduly rosy picture of life in Cuba. The interesting part of the opinion, rejecting an ACLU challenge, runs from about page 59-104 of the slip opinion in pdf form, if you want to read it yourself. The core of the court’s decision was its conclusion that removing a book that was factually inaccurate in failing to depict the reality of life under Castro was not a forbidden exercise of political opinion but a legitimate exercise of a school board’s power to take factually false material off the shelves.
It requires no stretch of the imagination to recognize why this holding is a flashpoint; nearly all disputes over subjects ranging from evolution to global warming to Israel and Palestine involve warring camps both of which assert that the other’s position is simply factually false and should not be taught to schoolchildren. As I have long argued in the case of media bias, the biggest single issue is deciding which stories have two legitimate sides and which don’t. But to state the problem doesn’t answer the question of where courts can allow democratically elected school boards to draw the line, or where those boards should draw the line if left free to do so, since the alternative involves the courts tying the hands of the board in decisions about removing books, while giving free rein to political agendas in the decision to buy the books in the first place.
As the majority opinion noted:

The dissenting opinion argues that if a school board’s action in removing a book from its own library shelves does not amount to banning a book, then a school board can never ban a book. See Dissenting Op. at 172. So what? Nowhere is it written that a school board must be empowered to ban books. Because a school board has no power to prohibit people from publishing, selling, distributing, or possessing a book, it has no power to ban books.

Slip op. at 93. My own preference, and I think the reading most consistent with the Constitution, would be to get the courts out of the business entirely, but even that doesn’t answer the core policy question of how the school boards should decide these kinds of brouhahas.

Legally, the interesting point in the opinion was that the court did explicitly what courts often do without saying: it distinguished between the objective facts in the record that were left as they were found by the trial court and the inferences about motivation drawn from those facts, and made clear that the appellate court was applying its own judgment to the latter (appellate courts often do this, though it’s a fair question whether they ought to):

[W]e will review for clear error only the district court’s findings of ordinary historical facts. Those are facts about the who, what, where, when, and how of the controversy – what the School Board did, when and how it acted, what various members of the Board said, and so forth. Those facts, already set out earlier in this opinion, are largely undisputed.
By contrast, under the assumptions about the law that we have made for purposes of deciding this case, we must determine the “why” facts. Those are the core constitutional facts that involve the reasons the School Board took the challenged action – its intent, or more accurately, its motive for removing copies of the Vamos a Cuba book from the school libraries.

Slip op. at 61. The court made clear that however much controversy is inevitably involved either way, a school board simply can’t be stripped of the power to decide that some books are just wrong:

Whatever else it does in the context of school library books, the First Amendment does not require a school board to leave on its library shelves a purportedly nonfiction book that contains false statements of fact. That is no less true if, as here, the falsehoods in the book make a totalitarian regime that is out of favor in this country look better than the true facts would. A preference in favor of factual accuracy is not unconstitutional viewpoint discrimination.

+++

Facts about the conditions inside a country are not a viewpoint. They are facts. A book that recounts those facts accurately would not, for that reason, be political in nature. And a book that presents a distorted picture of life inside a country – whether through errors of commission or omission – does not, for that reason, become “apolitical.”

Slip op. at 96-97. And the court chided the district court for what it saw as a bias against the Cuban-Americans on the school board (as well as the former Cuban political prisoner who originally objected to the book):

There is something of this flavor in the plaintiffs’ argument and the district court’s opinion: the majority of the School Board members were Cuban Americans; Cuban Americans despise Castro and his regime; therefore, the Board’s removal of the book must have been motivated by their disagreement with the book’s political viewpoint instead of by its factual inaccuracies….To the extent that is an argument, it confuses interest with motive. Cuban Americans are more interested than others in removing a book that falsely portrays, to the upside, life in Castro’s Cuba, but that does not mean their motive for wanting the book removed is anything other than the fact that the book contains falsehoods. If the book accurately discussed life in Cuba, they would have no reason to have it removed.
Besides, the argument in question sweeps too widely. It would, for example, render constitutionally suspect the votes of Jewish school board members to remove our hypothetical book about life in the Third Reich. It would do the same to the votes of any African American board members who wanted to remove our hypothetical book about life in the antebellum South.

Slip op. at 102-03. In addressing the merits, the court was unsparing in describing how a book full of anodyne descriptions of how life in Cuba is like life in America is at odds with the reality of the Castro regime:

On page 25 of Vamos a Cuba, the book states: “Cuba’s beaches are good for swimming and boating. People like to dive and fish. There are also rowboat and sailboat races.” [R:28:A Visit to Cuba:25] The truth, according to the uncontradicted evidence in the record, is that the traditional Cuban rowboat and sailboat races were abolished a half century ago. [R:19:48]
On page 15 of the book, it says: “For special festivals, men wear white pants and white shirts. Women wear colorful ruffled dresses.” [R:28:A Visit to Cuba:15] The implication is that this type of clothing is worn on festival days by a large segment of the population. The truth, according to the evidence in this record, is that the “vast[] majority of Cubans lack adequate clothing” and cannot afford this type of outfit. [R:19:47]
The third sentence in the book tells the children of this country that: “People in Cuba eat, work, and go to school like you do.” [R:28:A Visit to Cuba:5] It is simply not true that people in Cuba “eat, work, and go to school” the same way that American children do.
As for eating, unlike the situation in this country, in Cuba food is rationed by the government. It has been for forty-six years. [R:19:47] The book fails to mention that. In another place the book states that: “[m]any kinds of fruits grow in Cuba,” and that “[b]ananas, pineapples, oranges, and mangoes are favorites.” [R:28:A Visit to Cuba:13] While these fruits are indeed grown in Cuba and may be favorites, the implication that Cubans get to enjoy them is misleading. The population generally does not have free access to them because most of the fruit that is produced is exported, and the fruit that is not shipped out of the country is rationed by the government. [R:19:216] The evidence in the record indicates that malnutrition is not uncommon among the children of Cuba. [Id.] They do not eat like the children of this country do.
As for the Cuban people “working like you do,” that is not true for children or adults. In Cuba there is “little private work,” and “it [is] a crime to exercise private initiative or to have private practice of a profession.” [Id.] “Practically everyone must work for the government.” [Id.] From the sixth grade on, students must go to the countryside for a period of 45 days to do unpaid agricultural work. [Id. at 48] Moreover, “from the senior high level, all must go to the countryside to do unpaid agricultural work, on a permanent basis, alternating half day in the fields and half in the classroom.” [Id.] Refusal to do agricultural work may result in expulsion from school. Bureau of Democracy, Human Rights, and Labor, U.S.Dep’t of State, Cuba: Country Reports on Human Rights Practices 2006 (2007), available at https://www.state.gov/g/drl/rls/hrrpt/2006/78887.htm (last visited Dec. 8, 2008). The book does not mention that.

Slip op. at 73-75 (footnotes omitted). And so on. You may be uncomfortable – I am – with a court detailing such politically controversial facts, but facts they are, as established in the trial court in the usual way (the parties each submitted expert witnesses, affidavits, etc.), and if there is to be a judicial resolution, the court has no choice but to conclude whether or not there was a legitimate basis for the school board’s finding of factual inaccuracy.
As I said before, when you think seriously about the issue instead of knee-jerking about how banning books is bad, this is at its root a hard question, as disputes about what is a political opinion and what is a fact, or what things courts should decide and what things the people should decide, usually are. Obviously, in this case, I was cheering along as the court recited sometimes unpopular truths about Castro’s regime; but it’s not hard to see how a liberal court could and might do the same to impose its own view of what the facts are about various controversies. Which is why, as usual, my sympathies lie with letting the mistakes that can be made, be made by elected representatives who at least can be held accountable when they declare that it is simply a fact that two plus two equals five.