Pico and K-2 schools
Bob Sheridan
bobsheridan at earthlink.net
Fri Apr 7 10:58:37 PDT 2006
Probably because it would represent the establishment of an official
orthodoxy, something we profess to abhor. How would you define which
ideas are included/excluded from such a regime. The fact is that we let
it go by default to the teachers and school authorities and so have a
'default more-or-less unofficial orthodoxy' which makes the selections
in lieu of the legislature or Congress. See the McCarthy Era efforts to
purge the New York City public schools of teachers deemed to be red or pink.
rs
Volokh, Eugene wrote:
> But why would a school's desire to block certain ideas from
> reaching 5-to-7-year-olds -- at least in the school itself, with the
> school's likely seeming imprimatur -- be impermissible?
>
>
>> -----Original Message-----
>> From: conlawprof-bounces at lists.ucla.edu
>> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Rahdert
>> Sent: Friday, April 07, 2006 10:27 AM
>> To: isomin at gmu.edu; David Cruz
>> Cc: CONLAWPROF at lists.ucla.edu
>> Subject: Re: RE: Pico and K-2 schools
>>
>>
>> Folks might want to take a look at Justice Blackmun's opinion
>> in Pico,
>> which I wrote about a long time ago (97 Dickinson Law Review
>> 437). Justice
>> Blackmun attempted to distinguish permissible from
>> impermissible reasons
>> for removing books, and he concluded that while there might be many
>> permissible reasons, especially in a public school setting,
>> the purpose of
>> suppressing an idea was not one of them. I think he would
>> find the removal
>> of either the book about Cuba or the hypothetical one about
>> South Africa to
>> constitute an impermissible attempt to suppress an idea.
>>
>> Mark Rahdert
>>
>> At 10:38 PM 4/6/2006, 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
>>>>>
>>>> propaganda.
>>>> 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
>>>> U.S.A.
>>>>
>>>>
>>>>
>>>>
>>>> _______________________________________________
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>>>>
>>> _______________________________________________
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>>>
>>
>> Mark C. Rahdert
>> Professor of Law
>> Temple University
>> Beasley School of Law
>> 1719 North Broad Street
>> Philadelphia, PA 19122
>>
>> Phone: 215-204-8966
>> Fax: 215-204-1185
>> Email: mark.rahdert at temple.edu
>>
>>
>> _______________________________________________
>> To post, send message to Conlawprof at lists.ucla.edu
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> _______________________________________________
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>
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