Pico and K-2 schools
bobsheridan at earthlink.net
Thu Apr 6 19:53:54 PDT 2006
Doesn't it seem as though the distinction between acquisition and
removal in the public school library context is akin to the time, place,
and manner restrictions that justify impingements on constitutional
guarantees in other contexts?
These remind me of the spouse who makes a justifiable complaint to and
about the other spouse, only to be met with the objection that "I don't
like tone in which you said that." A good evasion of the discomfort of
dealing with the merits.
Pico seems more of the same.
isomin at gmu.edu wrote:
> David makes a good point. I did ignore the possible difference between removal and acquisition of books. But upon reflection, I think it's more a difference of degree than kind. Shelf space, like books, is a scarce good. A school can reasonably choose to allocate that space based on the perceived quality of different books - a judgment that necessarily includes at least some evaluation of the merits of the books' content. Certainly, a school should have the right to remove a Holocaust denial book if it thought that the shelf space would be better used by books with a more accurate portrayal of history. The same goes for books that incorporate gross inaccuracies in their portrayal of Cuban communism.
> As I suggested in my earlier post, schools may well make serious mistakes in judging the content of different books. But the constitutionality of their actions should not turn on any perceived difference between acquisition and removal.
> Ilya Somin
> Assistant Professor of Law
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8202
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/
> ----- Original Message -----
> From: David Cruz <dcruz at law.usc.edu>
> Date: Thursday, April 6, 2006 9:59 pm
> Subject: RE: Pico and K-2 schools
>> On Thu, 6 Apr 2006, Scarberry, Mark wrote:
>>> I'm not sure that avoiding orthodoxy requires us to subsidize
>> With respect to Mark, I don't really find this comment to engage
>> with the
>> Pico issue very much. Pico agreed that government has a pretty free
>> hand in deciding what to subsidize. But it found a constitutionally
>> significant difference in *removal* decisions. The article speaks of
>> books being removed from libraries. That suggests to me they've
>> alreadybeen purchased, and there was no indication that removal
>> might lead to a
>> refund. So, the issue seems not to be one of subsidization vel non.
>> Other posts in this thread also don't seem to engage much with the
>> Picoopinions and their (semi)articulated limits on government
>> discretion in
>> this area, and whether or not this particular removal decision is
>> the sort
>> that would run afoul of Pico's holding. That's not to say that
>> Bob and
>> Ilya have not had interesting things to say on the issue. And
>> Eugene did
>> after all ask for thoughts on "the right answer here" and not just
>> on the
>> applicability of Pico.
>> David B. Cruz
>> Professor of Law
>> University of Southern California Gould School of Law
>> Los Angeles, CA 90089-0071
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