Luskin Once Again Gets The Law Wrong

The Discovery Institute’s Casey Luskin contends in this post that librarians in public schools are “censoring” Intelligent Design by refusing to put copies of Michael Behe and Philip Johnson books on their shelves. Of course, Luskin cites the famous Supreme Court decision Board of Education v. Pico, 457 U.S. 853 (1982), claiming that it holds that the First Amendment is violated when school districts refuse to stock certain books on their library shelves.

Of course, Pico did no such thing. First of all, Pico was a plurality decision, meaning that it did not garner a majority of the Supreme Court. There has never actually been a binding Supreme Court decision explaining the First Amendment’s limitations on government schools’ discretion with regard to the books in their libraries. Second, Pico did not involve a school district’s refusal to stock certain books. It involved a school that was removing books that were already stocked in the library. The plurality held that this was an important distinction: “nothing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools,” they wrote. “Because we are concerned in this case with the suppression of ideas, our holding today affects only the discretion to remove books.” _Id._at 871-72.

In a concurring opinion, Justice Blackmun also emphasized that the rule against removing books is

a narrow principle. School officials must be able to choose one book over another, without outside interference, when the first book is deemed more relevant to the curriculum, or better written, or when one of a host of other politically neutral reasons is present. These decisions obviously will not implicate First Amendment values. And even absent space or financial limitations, First Amendment principles would allow a school board to refuse to make a book available to students because it contains offensive language…or because it is psychologically or intellectually inappropriate for the age group, or even, perhaps, because the ideas it advances are “manifestly inimical to the public welfare….” And, of course, school officials may choose one book over another because they believe that one subject is more important, or is more deserving of emphasis.

Id._at 880]( (Blackmun, J., dissenting). Of course, the dissenting justices found no First Amendment violation for the removal of books from a school library, because they did not believe that the Amendment guarantees “a ‘right’ to have the government provide continuing access to certain books.” [_Id. at 889 (Burger, C.J., Powell, Rehnquist, O’Connor, JJ., dissenting).

Luskin’s notion that Pico prohibits libraries from rejecting donated books that librarians consider bad scholarship is, unsurprisingly, not_warranted by the text of that decision, and in fact, _provably false. Moreover, if Luskin’s understanding were_the law, it would be unworkable. Schools are obviously not required to stock whatever trash people choose to donate to them. If a prankster donates a copy of _Penthouse Letters, the school obviously could not be required to shelve it. And schools have much broader discretion than that—to choose the best possible science, the best possible educational materials, and even, as both the plurality and the dissenters in Pico said, to choose books based on moral or even aesthetic grounds, so as to tailor the educational experience in the way the school board thinks best. Pico simply does _not_stand for the idea that a librarian rejecting certain donated books is somehow “censorship.” On the contrary, it stands for the idea that “local school boards have a substantial legitimate role to play in the determination of school library content,” id. at 869, so long as they do not use their discretion “in a narrowly partisan or political manner.” Id. at 870.

Stephen A. Newman, whose law review article* Luskin uses as a springboard for his inept discussion of Pico, makes another important point that Luskin, of course, leaves out. Newman contends that librarians—who are obviously not lawyers—are often intimidated by blustery and incompetent ID supporters like Luskin, who insist that somehow rejecting a bad work of pseudoscience is unconstitutional. Newman points out this article by two librarians in Minnesota who rejected such book donations. As Sullivan explains,

The donor complained to the School Board, which appointed a committee to investigate the matter. The committee recommended that one book be accepted by the library. It deadlocked on the other book. The Board of Education then heard from a variety of people, including scientists, parents, teachers, and ministers, who explained the difference between censorship and legitimate selection processes. Ultimately, after a three month battle, the Board supported the librarians and voted to reject both books. The librarians wrote about their experience in order to warn others in the field about the conflicts they might face from this sort of book donation tactic by anti-evolutionists. One wonders how often local librarians elsewhere yield to such pressure and quietly add these volumes to their school collections.

Stephen A. Newman, Evolution And The Holy Ghost of Scopes: Can Science Lose The Next Round? 8 Rutgers J. L. & Religion 11, 22 (2007) (emphasis added).

With people like Luskin around misreading Supreme Court decisions, one does indeed wonder.

*-Unlike Luskin, I will actually provide a link so you can read the article yourself….