The Oklahoma Bar Journal September 2022

Other courts have also focused on whether there was some legitimate pedagogical reason for the removal and whether any policy outlining the process was followed. 26

be an appropriate, pedagogically related reason for removal. 25 Further, the court drew a distinc tion between Pico and the action taken by the Miami-Dade School Board on the basis that the board had a set policy for challenging curricular and library materials as opposed to an ad hoc decision that would lend credibility to the idea that the books were censored simply because of a disagreement with the ideas they contained. Other courts have also focused on whether there was some legitimate pedagogical reason for the removal and whether any policy outlining the process was followed. 26 In Case v. Unified School District , a federal district court in Kansas found that the school had violated the First Amendment rights of its students when it removed a book from the library because it depicted a romantic relationship between two teenage girls. 27 The evidence at trial made it apparent that the decision to remove the book was made only because of personal disapproval of the ideas in the book and because the school had received pressure from outside parent groups and the media. 28 The book contained no vulgarity, offensive language or explicit sexual content and

actual removal of materials in the case the 10th Circuit considered, the court stated in dicta that the “Supreme Court … ruled” that the First Amendment was vio lated if the school board members removed books simply because they disagreed. But we can turn toward other circuits for guidance as well. The 11th Circuit has twice considered board action on books. In ACLU of Florida v. Miami-Dade County School Board , the court first acknowledge that Pico was a plurality opinion but then assumed the test in Pico would still apply. In considering a challenge over the removal of Vamos a Cuba , a children’s board book that gave a very truncated overview of the life and culture in Cuba, the court used the same standard first articulated in Pico : If a book is removed “simply because they disliked the ideas contained in the book and sought by its removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion” the removal would be unconstitutional. The court, however, ultimately found the only motivation for removal was that the book was inaccurate in its depiction of life in Cuba. Removal due to accuracy would

had received numerous literary awards, including “Best of the Best” for young adult books. Even the district’s own librarians had reviewed the book and found it to be appropriate content for students. The books had been on library shelves since the 1980s and were only removed after additional copies were donated by GLAAD. A board member testified that he was offended by the book’s “glori fication of the gay lifestyle” that, in his opinion, could lead students to a destruction of “a healthy sexu ality, self image, and … onslaught of physical destruction.” Other members considered it inappropri ate, unsuitable for students, lacking in depth on the subject matter or simply not a topic that should be addressed in the public school setting. As in the cases discussed above, the school’s policy address ing the removal of materials was not followed. Based upon the evi dence, the court found that when the school removed the book for being “educationally unsuitable,” the basis for that determination was their own disagreement with the ideas expressed in the book and thus a violation of the plaintiffs’ First Amendment rights. Testimony at trial revealed that every board member took into account their

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THE OKLAHOMA BAR JOURNAL