The Library Bill of Rights - a critique - The Library Bill of Rights

Library Trends, Summer, 1996 by Gordon B. Baldwin

The Court noted several important features in the removal decision. First, the school board removed the whole book. The board did not simply restrict circulation to "the younger students whose safety the Board purported to be concerned with" (Delcarpio v. St. Tammany Parish School Board, 1994). Nor did the school relegate the book to a reserve shelf where children could read it with parental consent. The driving force underlying the decision rested on finding an official effort to promote a particular idea by excluding the competition. Second, flaws marked the board's decision making. Six members of the board had read only excerpts supplied by protectors and not the entire book, thus the board acted ignorantly. Third, the actions appeared greater than any risk of danger warranted. No evidence showed that any student sought to replicate the voodoo spells.

Perhaps lawyers for the school board erred in arguing on appeal that the book should be considered "pervasively vulgar." The Court found little basis for that conclusion because nothing in the record suggested that vulgarity formed the basis for the board decision, and the offensive portions hardly pervaded the entire volume.

Lawyers served the successful Delcarpio plaintiffs well. They had prepared a record clearly proving that the motivation for the removal decision rested on an impermissible wish to deny access to particular ideas because of the beliefs of the board members. What if they had only focused on the claim of vulgarity? Other removal decisions may not prove so easy to contest because, as the Supreme Court stated in the leading case of Cohen versus California (1971), "the Constitution leaves matters of taste and style...largely to the individual."

Delcarpio differs from another relevant, but important, decision rendered fifteen years earlier. In 1980, the 7th Circuit Court upheld administrative book selection policies in dismissing a complaint that a school removed books expressing feminist viewpoints from its teaching program (Zyban v. Warsaw Community School Corp., 1980). The case involved the selection of teaching materials, not merely a review of library collection policy. The 7th Circuit Court panel found insufficient an allegation that the removal rested on the school board's social, political, and moral tastes. If the plaintiff argued that the board was "guided by an interest in imposing some religious or scientific orthodoxy" or sought to "eliminate a particular kind of inquiry" the result would be different (Zyhan v. Warsaw Community School Corp., 1980). No legal violation occurred because feminist ideas were otherwise available. As of this writing, the decision stands as the law in Wisconsin, Illinois, and Indiana. It illustrates the significant drawbacks of a motivation test resting on an elusive, if not unreal, distinction allowing removal based on social, political, and moral grounds, but forbidding removal "imposing some religious or scientific orthodoxy" (Zykan v. Warsaw Community School Corp., 1980).