Yesterday, the Eleventh Circuit Court of Appeals handed down its decision in Miami-Dade School Board v. ACLU of Florida, the lawsuit challenging the Miami-Dade School Board’s decision to remove from its classrooms and libraries all copies of the book A Visit to Cuba and its Spanish language companion book, Vamos a Cuba. The board argued that the picture book, aimed at four- to six-year-olds, fails to accurately convey the harsh political realities of life in Cuba. It also decided that the perceived inaccuracies of “A Visit to Cuba” justified removing the entire “A Visit to…” series from the school district’s libraries, even though no formal challenge was filed against the remaining books in the series.

A panel of three judges on the Eleventh Circuit Court of Appeals held, 2-1, that the school board’s decision did not violate the First Amendment.

The Freedom to Read Foundation filed an amicus brief in this case, in cooperation with the American Booksellers Foundation for Free Expression, the Association of Booksellers for Children, Reforma, Peacefire.org, and the National Coalition Against Censorship. Freedom to Read Foundation General Counsel Theresa Chmara has summarized the history of the lawsuit and the Eleventh Circuit’s 177 page decision:

The Miami-Dade School Board voted to remove the book “A Visit to Cuba” and the entire “A Visit To” series from the elementary and secondary school libraries in the district. The School Board decided to remove the books despite the fact that two independent bodies consisting of professional educators, administrators and community leaders had reviewed the books and concluded that the series was educationally significant and developmentally appropriate for the audience of four to six year olds to which it was directed. The removal decision was challenged in federal court by the American Civil Liberties Union of Florida, the Miami-Dade County Student Government Association, a parent of an elementary school student and the student.

School board members defended their removal decision by arguing that the books were factually inaccurate in failing to portray the poverty and government oppression that is present in Cuba. On July 24, 2006 the district court concluded that the removal decision was unconstitutional, holding that the removal decision was couched in terms of “inaccuracies,” but was instead a “guise and pretext for ‘political orthodoxy.’” ACLU v. Miami-Dade Cty. Sch. Bd., 439 F. Supp. 2d 1242 (S.D. Fla. 2006).

On February 5, 2009, the Eleventh Circuit reversed that decision with one judge dissenting. The Appellate Court did not reach the issue of whether school censorship complaints should be evaluated under the standards enunciated in the plurality decision in Board of Education v. Pico, 457 U.S. 853 (1982) nor whether school library books can be considered part of the “curriculum” pursuant to the standards set forth in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562 (1988). Instead, the Eleventh Circuit majority conducted a de novo review of the factual evidence and concluded that the district court erred in finding that the book was removed for political reasons. The majority concluded that the school board had the discretion to remove the series of books if it determined that the books were educationally unsuitable due to factual inaccuracies in the books. After conducting its own review of the factual evidence, the Appellate Court concluded that the series of books was factually inaccurate and the school board acted within its discretion in removing the books. The majority opinion also rejected the claim that board violated due process by removing an entire series of books when only one complaint was filed about one book in one library. The majority panel concluded that the School Board has the discretion to make removal decisions for the entire district regardless of whether a complaint was filed.

In his dissenting opinion, Judge Wilson strongly argues that “[t]he record provides palpable support for the district court’s conclusion that School Board members banned the book not because of inaccuracies per se but because the book failed to make a negative political statement about contemporary Cuba.” Slip Opinion, at 137. Moreover, Judge Wilson posited that “[t]he banning of children’s books from a public school library under circumstances such as these offends the First Amendment.” Id. at 174. The plaintiffs challenging the book removal at issue will now have to decide whether to petition the United States Supreme Court to review the Eleventh Circuit decision.

Howard Simon, executive director of the ACLU of Florida, told the Miami Herald that the ACLU will appeal the decision.

“We are naturally disappointed with this decision, and we will continue to support the ACLU’s efforts to return the books to the shelves of the Miami-Dade school libraries,” said Deborah Caldwell-Stone, Deputy Director of the Office for Intellectual Freedom.

The full decision of the court can be found here: http://www.ca11.uscourts.gov/opinions/ops/200614633.pdf.