New Yorker Article Seems to Misdescribe S. Ct.'s Decision on School Library Book Removal; Reason, December 23, 2023

EUGENE VOLOKH , Reason; New Yorker Article Seems to Misdescribe S. Ct.'s Decision on School Library Book Removal

"The article claims that a prohibition on viewpoint-based removals of school library books is "settled law" announced by a "majority opinion." But that's not so...

The matter, then, is not clear. Lower courts may indeed themselves decide that viewpoint-based removals of books from school libraries violate the First Amendment, and they may find Justice Brennan's opinion to be persuasive. And schools may reasonably worry that this might happen, and might conclude that it's better to avoid that litigation. But courts and schools may instead conclude otherwise, and be more persuaded by Chief Justice Burger's dissent.

My own view is more in line with the dissent: I think a public school is entitled to decide which viewpoints to promote through its own library; school authorities can decide that their library will be a place where they provide books they recommend as particularly interesting/useful/enlightening/etc. The process of selecting library 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 schools) should go with the ability to make those decisions in the first place. To be sure, some such decisions may be foolish or narrow-minded, but they're not unconstitutional."