¡No vamos a Washington!

The Supreme Court denied certiorari this morning in ACLU of Florida v. Miami-Dade County School Board. That was the case in which Judge Gold entered a preliminary injunction preventing the school board from pulling the children’s book ¡Vamos a Cuba! from elementary and middle school shelves. The Eleventh Circuit, undertaking plenary review, reversed Judge Gold. (UM Law Professor JoNel Newman litigated the case on behalf of the ACLU.) Judge Carnes or one of his law clerks indulged in this introduction (which pretty much explains why Judge Gold’s findings had to be jettisoned):

Kafka advised a friend that “we ought to read only books that bite and sting us. If the book we are reading doesn’t shake us awake like a blow on the skull, why bother reading it in the first place?” The kind of biting, stinging, and shaking Kafka advocated, however, is not the kind we feel when we read a purportedly nonfiction book filled with factual errors, distortions, and misrepresentations.

As is typically the case when the press attempts to report on the Court, The Herald’s story neither offers nor exhibits any understanding of what a cert denial means and quotes board member Perla Tabares Hantman so as to make her seem just as clueless (which she well may be): “We were right and we prevailed. … This is a great victory for the School Board and for Cuban-Americans.” I’m pretty sure she’s not wildly happy because the court of appeals’ decision to undertake de novo review will not be revisited. (The petition for cert presented two mind-numbing civil procedure questions about whether Judge Gold’s hard work didn’t merit some deference from the Eleventh: “Whether, in a First Amendment case, the district court’s findings of historical fact, motivation, intent, pretext and credibility are entitled to deference under Fed. R. Civ. P. 52(a)(6), or, as the court of appeals held, are instead subject to plenary review,” and “whether the courts of appeals are required to undertake ‘independent review’ of a trial court’s factual findings when those findings support a holding in favor of First Amendment claims.”) Hispanic Business, on the other hand, did a much better job reporting the story.

As far as I’m concerned, the most disturbing question raised by the case is right there on page 3 of the court of appeals’ opinion and is passed over as though it weren’t even a concern: Why was a book written for five- to eight-year-olds ever in any middle school library?