557 F.3d 1177 (11th Cir. 2009), 06-14633, American Civil Liberties Union of Florida, Inc. v. Miami-Dade County School Bd.

Docket Nº:06-14633.
Citation:557 F.3d 1177
Party Name:AMERICAN CIVIL LIBERTIES UNION OF FLORIDA, INCORPORATED, Miami-Dade County Student Government Association, Plaintiffs-Appellees, v. MIAMI-DADE COUNTY SCHOOL BOARD, Rudolph F. Crew, Defendants-Appellants.
Case Date:February 05, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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557 F.3d 1177 (11th Cir. 2009)

AMERICAN CIVIL LIBERTIES UNION OF FLORIDA, INCORPORATED, Miami-Dade County Student Government Association, Plaintiffs-Appellees,

v.

MIAMI-DADE COUNTY SCHOOL BOARD, Rudolph F. Crew, Defendants-Appellants.

No. 06-14633.

United States Court of Appeals, Eleventh Circuit.

February 5, 2009

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Richard J. Ovelmen and Enrique D. Arana, Jorden Burt, LLP, Miami, FL, for Defendants-Appellants.

JoNel Newman, University of Miami School of Law, Coral Gables, FL, Randall C. Marshall, American Civil Liberties Union of Florida, Inc., Miami, FL, for Plaintiffs-Appellees.

Jay Alan Sekulow, American Center for Law & Justice, Washington, DC, for American Center for Law and Justice, Amicus Curiae.

Theresa Chmara, Jenner & Block, Washington, DC, for American Booksellers Foundation for Free Expressio, Amicus Curiae.

Walter Eugene Forehand, Lewis, Longman & Walker, P.A., Tallahassee, FL, for Florida Library Ass'n, Amicus Curiae.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES and WILSON, Circuit Judges, and WALTER,[*] District Judge.

CARNES, Circuit Judge:

Kafka advised a friend that " we ought to read only books that bite and sting us. If the book we are reading doesn't shake us awake like a blow on the skull, why bother reading it in the first place?" 1 The kind of biting, stinging, and shaking Kafka advocated, however, is not the kind we feel when we read a purportedly nonfiction book filled with factual errors, distortions, and misrepresentations. Juan Amador was outraged when he read the inaccurate portrayal of life in Cuba that was contained in a book on the shelves of the library where his young daughter [R:19:397] went to school. He asked that the book be removed from the shelves, explaining that " [a]s a former political prisoner from Cuba, I find the material to be untruthful. It portrays a life in Cuba that does not exist." ACLU of Fla., Inc. v. Miami-Dade County Sch. Bd., 439 F.Supp.2d 1242, 1247 (S.D.Fla.2006). After a lengthy review process, the School Board removed the book.

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Illustrating something akin to Newton's Third Law of Motion, the action the School Board took at Amador's request caused an equal and opposite reaction from another parent and two organizations. They promptly sued the Board. Agreeing with their claims that the School Board's action violated the First Amendment and the Due Process Clause, a federal district court enjoined the Board from removing the book. Id. at 1294. This is the Board's appeal.

I.

The Miami-Dade County Public School District has forty-nine copies of the book, A Visit to Cuba, and its Spanish-language counterpart, Vamos a Cuba, spread out among thirty-three of its elementary and middle schools. Id. at 1249. (For convenience we will refer to all forty-nine copies by the Spanish language title Vamos a Cuba. ) The Vamos a Cuba book is part of a series of books which " targets readers between the ages of 4 to 8 years old, and [is] written to provide basic information about what life is like for a child" in various countries.2 Id. at 1248. The " A Visit to" series also includes books about Puerto Rico, Costa Rica, Colombia, Brazil, Cambodia, England, Egypt, the United Kingdom,3 Canada, Vietnam, Wales, Australia, China, Japan, Scotland, Mexico, Italy, Israel, Ireland, India, Greece, Germany, and France. The school district has at least one copy of those other " A Visit to" books in some of its elementary and middle school libraries. Id. at 1248-49. [R:28]. The " A Visit to" series is located in the libraries' nonfiction (history, geography, cultures) section. [R:19:59].

The books in the " A Visit to" series all follow the same " formulaic format." Id. at 1254. They offer the young reader " superficial introductions to geography, people, customs, language, and daily life." Id. at 1249 n. 8 (quoting a peer review of the series). " The large-print texts are accompanied by color photos of varying quality and relevance." Id. For example, the thirty-two pages of Vamos a Cuba contain general statements about Cuba's geography (" Cuba is a country in the Caribbean Sea, south of Florida." ), people (" Most Cubans live in cities." ), customs (" Cubans dress to keep cool in the hot weather." ), language (" Most people in Cuba speak Spanish." ), and daily life (" People in Cuba eat, work, and go to school like you do." ). Id. at 1247 n. 4, 1249 n. 8. [R:28 Ex:A Visit to Cuba].

The library at Marjory Stoneman Douglas Elementary School is one of the thirty-three district libraries with Vamos a Cuba in its collection. Id. at 1248. On April 4, 2006, Juan Amador, the father of a young girl at Douglas Elementary, filed a " Citizen's Request for Reconsideration of Media" to have Vamos a Cuba removed from the library at his daughter's school. Id. at 1247. [R:19:Ex.32]. On the request form Amador identified himself as a former political prisoner and complained that the

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material in the book was not truthful and " portrays a life in Cuba that does not exist." Id. Amador also wrote that, " I believe [ Vamos a Cuba ] aims to create an illusion and distort reality." [R:19:Ex.32]. He recommended that the book be replaced by one " that truly reflects the plight of the Cuban people of the past and present." [ Id. ]

The school district has a four-tiered administrative procedure for reviewing citizen requests to remove books from the district's libraries. [R:8:Ex.G:86-90]. The initial complaint about a book goes to the school's principal, even though he does not have the authority on his own to remove a book. [ Id. at 86]. Apparently, the only authority the principal has is to explain why the school has the book in its library collection. If the complainant is not satisfied with the explanation, he can file a formal request that the book be removed. [ Id. at 86-87].

The formal request is heard by a School Materials Review Committee, an ad hoc group composed of teachers, administrators, counselors, library specialists, students, and parents from the school where the complaint was made. [ Id. at 87]. This School Committee reviews the book. It considers the Board's fifteen criteria for selecting library materials: educational significance, appropriateness, accuracy, literary merit, scope, authority, special features, translation integrity, arrangement, treatment, technical quality, aesthetic quality, potential demand, durability, and lack of obscene material. The School Committee may also solicit any " professional written reviews" of the book and any comments by library experts and " appropriate audiences." [ Id. at 83, 87-88]. After the review the School Committee recommends to the principal whether to retain, remove, or limit the use of the book as part of the library's collection. [ Id. at 83, 87-88].

If the complaining citizen is dissatisfied with the School Committee's recommendation, he may appeal it to the superintendent, who has the option of issuing a decision based on that committee's recommendation or submitting the appeal to the District Materials Review Committee. The District Committee is an ad hoc group made up of district administrators, principals from other schools, library specialists from other schools, a student, a union official, a member of the parent-teacher association, and a " lay person." [ Id. at 88-89]. If the superintendent submits the appeal to the District Committee, it will review the same materials as the School Committee and will make its own independent recommendation to the superintendent of schools. [ Id. at 89]. The superintendent then considers the District Committee's recommendation and decides whether to remove the book. [ Id. at 89-90]. The superintendent's decision can be appealed to the School Board, which has the final say insofar as the school system is concerned. [ Id. at 90].

In this case Amador followed the administrative review process from start to finish. Because he was not satisfied with the principal's explanation about Vamos a Cuba, he submitted a formal request to the School Committee to remove the book from the Douglas Elementary library. [R:19:Ex.10:55-57]. The School Committee considered the book in light of the district's fifteen written criteria for evaluating books for its school library collections. [ Id. at 54-55; see id. at 64-71]. Some of the eight committee members believed that Vamos a Cuba was " factually accurate," " apolitical," and " appropriate for the age group," while one member felt that the " author could have better written and researched the topic," and another was convinced that the book did not meet the district's criteria for accuracy. [ Id. at 64-71]. All eight members checked the

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" meets criteria" box for the categories of " educational significance" and " appropriateness." [ Id. ; see also ACLU Br. 10]. The School Committee's vote was seven to one in favor of retaining Vamos a Cuba in the Douglas Elementary library. [ Id. at 56].

Amador appealed the School Committee's decision to retain the book in the Douglas Elementary library to the superintendent, who submitted the appeal to the District Committee. [R:19:Ex.8:49]. The seventeen-member District Committee decided to evaluate Vamos a Cuba based on what it determined to be the three most important of the fifteen criteria: educational significance, appropriateness, and accuracy. [R:19:Ex.7:44]. As to those three factors, one committee member said that the title of the book was inaccurate because " Cuba is not a country [one is] free to...

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