“Discard [Library] Books … That Reflect Gender, Family, Ethnic, or Racial Bias”
[1.] Next week, the entire en banc Fifth Circuit will be hearing Little v. Llano County, a case involving allegations of viewpoint-based book removals in a public library. As I’ve noted before, the Supreme Court has never resolved whether such removals are unconstitutional. Pico v. Bd. of Ed. (1982), which considered the matter as to public school libraries, split 4-4 on the subject, with the ninth Justice, Justice White, expressly declining to resolve the substantive question. (The Pico Justices generally agreed that schools could remove some material as age-inappropriate because of its vulgar or sexual content; the debate was about viewpoint-based removals.)
U.S. v. American Library Ass’n (2003), which dealt with the related question of Internet filtering in public libraries generally, was also a splintered decision, and didn’t resolve the broader question, either. A 1995 Fifth Circuit panel decision had generally precluded such viewpoint-based removals, but the Fifth Circuit en banc court will need to consider whether that decision should stand: Rehearing by the full en banc court is the normal way that federal appellate courts reconsider whether three-judge panel decisions should be overruled.
I’m not sure what the answer here should be. I tentatively think a public school is entitled to decide which viewpoints to promote through its own library: School authorities can decide that their library will be a place where they provide books they recommend as particularly interesting/useful/enlightening/etc., essentially as supplements to the school curriculum (over which the school has broad authority). The process of selecting library books is part of the government’s own judgment about what views it wishes to promote. And the ability to reconsider selection decisions—including in response to pressure from the public, which is to say from the ultimate governors of the public schools—should go with the ability to make those decisions in the first place. To be sure, some such decisions may be foolish or narrow-minded, but they’re not unconstitutional.
But this doesn’t necessarily resolve the question of how librarians should administer non-school public libraries, which aren’t the adjunct to any sort of school curriculum. Libraries are much more about giving more options to readers, rather than about teaching particular skills and attitudes to students. The case for viewpoint neutrality is therefore stronger there—though not, I think, open and shut. (Note also that even the challengers in this case leave open the possibility that courts shouldn’t scrutinize book acquisition decisions to decide whether they are viewpoint-based, but only book removal decisions. See Appellees’ En Banc Brief at 43-44 & n.13, 50.)
In any case, that’s the big picture; here, I want to talk about a particular twist in the dispute, which can be particularly well seen in a friend-of-the-court brief filed by the Freedom to Read Foundation, the Texas Library Association, and American Library Association. The passage, and the sources it cites, refer to the necessity to remove books on some criteria—this is called “weeding,” and some sources suggest that each year a public library would generally weed out 5% of its stock—and discuss which criteria are proper:
There are various methods for weeding library collections. One is the “CREW” method, which stands for “Continuous Review, Evaluation, and Weeding.” CREW contains six general guidelines under the acronym “MUSTIE”:
Misleading: factually inaccurate
Ugly: beyond mending or rebinding
Superseded by a new edition or by a much better book on the subject
Trivial: of no discernible literary or scientific merit
Irrelevant to the needs and interests of the library’s community
Elsewhere: the material is easily obtainable from another library.[26]
When weeding, the goal is “to maintain a collection th
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