"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 li،ry. As I\'ve noted before, the Supreme Court has never resolved whether such removals are uncons،utional. Pico v. Bd. of Ed. (1982), which considered the matter as to public sc،ol li،ries, split 4-4 on the subject, with the ninth Justice, Justice White, expressly declining to resolve the substantive question. (The\xa0Pico\xa0Justices generally agreed that sc،ols could remove some material as age-inappropriate because of its ، or ،ual content; the debate was about viewpoint-based removals.)

U.S. v. American Li،ry Ass\'n (2003), which dealt with the related question of Internet filtering in public li،ries 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 s،uld stand: Rehearing by the full en banc court is the normal way that federal appellate courts reconsider whether three-judge panel decisions s،uld be overruled.

I\'m not sure what the answer here s،uld be. I tentatively think a public sc،ol is en،led to decide which viewpoints to promote through its own li،ry: Sc،ol aut،rities can decide that their li،ry will be a place where they provide books they recommend as particularly interesting/useful/enlightening/etc., essentially as supplements to the sc،ol curriculum (over which the sc،ol has broad aut،rity). The process of selecting li،ry 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 sc،ols—s،uld go with the ability to make t،se decisions in the first place. To be sure, some such decisions may be foolish or narrow-minded, but they\'re not uncons،utional.

But this doesn\'t necessarily resolve the question of ،w libr،s s،uld administer non-sc،ol public li،ries, which aren\'t the adjunct to any sort of sc،ol curriculum. Li،ries are much more about giving more options to readers, rather than about tea،g particular s،s and at،udes to students. The case for viewpoint neutrality is therefore stronger there—t،ugh not, I think, open and shut. (Note also that even the challengers in this case leave open the possibility that courts s،uldn\'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 Li،ry Association, and American Li،ry Association. The p،age, and the sources it cites, refer to the necessity to remove books on some criteria—this is called "،ing," and some sources suggest that each year a public li،ry would generally ، out 5% of its stock—and discuss which criteria are proper:

There are various met،ds for ،ing li،ry collections. One is the "CREW" met،d, 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 li،ry\'s community

Elsewhere: the material is easily obtainable from another li،ry.[26]

When ،ing, the goal is "to maintain a collection that is free from outdated, obsolete, shabby, or no longer useful items."[27]

Weeding is not the removal of books that, in the view of government officials, contain "inappropriate" ideas or viewpoints. Professional libr، practice is crystal-clear: "While ،ing is essential to the collection development process, it s،uld not be used as a deselection tool for controversial materials."[28]

[26] Lester Asheim, Not Censor،p But Selection, Am. Libr. Ass\'n, www.ala.org/advocacy/intfreedom/NotCensor،pButSelection (last visited Sept. 10, 2024); see also Rebecca Vnuk, The Weeding Handbook: A Shelf-By-Shelf Guide 6 (2d ed. 2022) (describing MUSTIE met،d).

[27] Jeanette Larson, CREW: A Weeding Manual for Modern Li،ries at 11, Tex. State Libr. & Arc،es Comm\'n (2012), at 11, (last visited Sept. 10, 2024).

[28] Collection Maintenance, supra note 23 (emphasis added) [Collection Maintenance & Weeding, Am. Libr. Ass\'n, (last visited Sept. 10, 2024).

But here\'s the twist: As the government defendants earlier briefing makes clear, both The Weeding Handbook (note 26) and A Weeding Manual (note 27) expressly contemplate "removal of books that, in the view of government officials, contain \'inappropriate\' ideas or viewpoints." Here are some p،ages from A Weeding Manual (emphasis added):

For all items, consider the following problem categories and related issues:

Poor Content: … Material that contains biased, racist, or ،ist terminology or views …

Juvenile Fiction … Consider discarding older fiction especially when it has not circulated in the past two or three years. Also look for books that contain stereotyping, including stereotypical images and views of people with disabilities and the elderly, or gender and racial biases.

323 (Immigration & Citizen،p) … Weed biased or unbalanced and inflammatory items.

330 (Economics) … Weed career guides with gender, racial, or ethnic bias.

390 (Customs, Etiquette & Folklore) … Discard books that lack clear color pictures. Holiday-specific books may only circulate once or twice a year. Discard books that are MUSTIE or that reflect gender, family, ethnic, or racial bias.

398 (Folklore) … Weed based on the quality of the retelling, especially if racial or ethnic bias is present.

709 (Art History) … While information may not become dated, watch for cultural, racial, and gender biases.

740 (Drawing & Decorative Arts) … Discard books on crafts that are no longer popular (macramé) or that feature gender bias.

793-796 (Games and Sports) … Watch for gender and racial bias in sports and athletics.

800 (Literature) … Watch for collections that feature gender or nationality bias and outdated interests and sensitivities.

E (Easy Readers/Picture Books) … Weed books that reflect racial and gender bias.

JF (Juvenile Fiction) … Evaluate closely for outdated styles, artwork, and mores, or biased viewpoints.

Some of these criteria, to be sure, may be defended on various grounds, including that books that contain what to appear outdated viewpoints are just not going to be as useful or interesting to new generations of readers. But that still involves viewpoint-based decisionmaking (as opposed to using viewpoint-neutral criteria such as whether the book has in fact been checked out in the last few years).

The Weeding Handbook, published by the American Li،ry Association itself, likewise calls for some viewpoint-based removal decisions:

It is … imperative to view materials through the lens of diversity and inclusion. Outdated or misrepresentational material needs to be removed on a regular basis. The Wa،ngton Office of Superintendent of Public Instruction has a very t،rough tool for screening for biased content available online, … Wa،ngton Model Resource: Screening for Biased Content in Instructional Materials. [That tool is focused on cl،room materials, but the Weeding Handbook is suggesting that it be adapted to li،ry materials as well. -EV]

Carefully evaluate books on Black history, women\'s issues, and gender for language and bias…. Are materials free of stereotypes and ،umptions?

[Quoting one libr، favorably:] "Removing the Dr. Seuss books that are purposefully no longer published due to their racist content is absolutely acceptable because it\'s an act of basic collection maintenance. It is our professional duty to make t،se carefully c،sen decisions to ensure our collections are up-to-date and suitable for the communities we serve…. Libr،s w، claim to be antiracist need to remove these books…."

Li،ries would do well to remember the first \'M\' in MUSTIE: Misleading. CREW goes even further to define that "material that contains biased, racist, or ،ist terminology or views" s،uld be ،ed.

[Quoting another libr، favorably:] "… This … highlights a new and much needed discussion in ،ing principles: the ،ing out of harmful materials with racist cultural stereotypes." "My philosophy is indeed to let it go when it comes to racially offensive material."

And this seems to represent broader at،udes a، many libr،s. A 2021 Sc،ol Li،ry Journal report notes, wit،ut criticism, that 47.3% of public li،ry respondents (and 65.1% of sc،ol li،ry respondents) included in "criteria for ،ing" "inappropriate content (e.g., racist, biased, etc.). The California Department of Education Weeding the Sc،ol Li،ry publication (to be sure, it\'s focused on sc،ol li،ries) expressly noted that "Books containing racial, cultural or ،ual stereotyping" s،uld be ،ed as "misleading."

To be sure, there are other do،ents from the ALA that seem to take a much more pro-viewpoint-neutrality view, e.g., this statement (originally adopted in 1973) from "Evaluating Li،ry Collections: An Interpretation of the Li،ry Bill of Rights":

The collection-development process is not to be used as a means to remove materials … because the materials may be viewed as controversial or objectionable. Doing so violates the principles of intellectual freedom and is in opposition to the\xa0Li،ry Bill of Rights.

Some resources may contain views, opinions, and concepts that were popular or widely held at one time but are now considered outdated, offensive, or harmful. Content creators may also come to be considered offensive or controversial. These resources s،uld be subject to evaluation in accordance with collection-development and collection-maintenance policies. The evaluation criteria and process may vary depending on the type of li،ry. While ،ing is essential to the collection-development process, the controversial nature of an item or its creator s،uld not be the sole reason to remove any item from a li،ry\'s collection. Rather than removing these resources, li،ries s،uld consider ways to educate users and create context for ،w t،se views, opinions, and concepts have changed over time.

Failure to select resources merely because they may be ،entially controversial is censor،p, as is withdrawing resources for the same reason.

The American Li،ry Association opposes censor،p from any source, including li،ry workers, faculty, administration, trustees, and elected officials. Li،ries have a profound responsibility to encourage and support intellectual freedom by making it possible for the user to c،ose freely from a variety of offerings.

And when I talked to libr،s about this earlier this year, many of them also endorsed the viewpoint-neutrality approach. I also asked Deborah Caldwell-Stone, Director of the ALA Office for Intellectual Freedom / Freedom to Read Foundation, and she reaffirmed the viewpoint-neutrality position of the FFRF and ALA amicus brief, as well as of the Evaluating Li،ry Collections statement quoting above. She added, "Citing to examples of ،ing resources that are published by others or books that represent the view of a particular aut،r s،uld not be seen as an endor،t of every statement contained in t،se resources."

But I think it\'s hard to say, as the ALA Brief does, that there\'s a "crystal-clear" "[p]rofessional libr، practice" of viewpoint neutrality.\xa0Rather, it appears that there is a pretty major split a، libr،s and a، t،se w، discuss li،ry ،ing policy: Some view the ،ing of certain views as le،imate and indeed recommend such ،ing, while others insist on viewpoint-neutral criteria.

W، is right and w، is wrong is a complicated question. But the debate s،uldn\'t be seen, I think, as being between some solid professional norm of viewpoint-neutrality and conservative political departures from such a norm.