Freedom of Speech and Private School Education:

Just read Asociacion de Educacion Privada de P.R. v. Garcia-Padilla, a very interesting First Circuit opinion from last month. Puerto Rico regulations and statutes imposed several constraints on private schools' textbook selection process, including:

In the case which [sic] there are changes in the edition, the school will inform [sic] in the book list which of these books have different editions, what the change specifically consists of, and whether it is a significant change or not, as defined by these regulations. In case that the changes are not significant, the school has to inform the parents on said list, that they have the option of buying the previous edition....

[T]he exclusion of chapters or sections, cosmetic changes and/or style, such as cover changes, chapter or section order, book texture and/or material does not constitute a significant change. Additions of one or several sentences to one chapter or section or through a new book edition will not be considered a significant change nor the addition of one or several drawings, graphics, tables, or photos.


[E]very private school accredited by the General Council of Education that requires the acquisition of school textbooks to [sic] their students shall have the consent of the Association or Council of Parents or of an Assembly of Parents to determine the maximum budget applicable for each school grade for the acquisition of said books required in each school year.

The court held that these rules unconstitutionally "interfere[d] with the private schools' decisions regarding what may be taught and how it may be taught." As to the first rule,

[The first rule's] definition of 'significant change' virtually ensures that the private schools will have to allow its students to use textbooks with content the schools do not approve of, either because it includes information that the schools do not wish to teach or because it lacks information the schools would like to teach. For example, a private school may find the inclusion of new photographs and diagrams in a science textbook particularly helpful in teaching a particular concept, and yet Rule 11 of Regulation 6458, by its very terms, would prevent the private school from requiring its students to purchase that textbook because under Regulation 6458, the addition of drawings, graphics, tables, photographs does not constitute a significant change between textbook editions.

More alarmingly, Regulation 6458 may force schools to teach using books that contain information directly in conflict with its particular philosophy, methodology, or mission. Regulation 6458 provides that a "significant change" is a "historical, technological, scientific and/or cultural change[] . . . [that] cause[s] the total or partial revision of one or several chapters or sections and/or the inclusion of one or several chapters or sections," but not "[t]he exclusion of chapters or sections" or "additions of one or several sentences to one chapter or section or through a new book edition." But the exclusion or inclusion of even one sentence or phrase may very well be considered a significant change by a private school for either teaching purposes or in light of the school's academic philosophy or mission. In fact, seemingly minor changes in text may be precisely what makes a book's new edition acceptable to a school and consistent with the message the school wishes to convey. For example, a book may become acceptable by virtue of the omission in a later edition of language found in prior editions.

As to the second rule,

In requiring private schools to obtain parental consent for the textbook budget, Law 116 significantly limits the schools' ability to choose their own books. Under the statute, parents have the power to set the private schools' textbook budget by withholding consent until the school agrees to a particular budget. This power to set a maximum budget, in turn, restricts the available choices for textbooks because the total price of all textbooks chosen must be within the approved budget. In essence, Law 116 forces schools, at the margins, to choose textbooks according to price, rather than content. This is a significant restriction on private schools' choice of textbooks.

Nor was the court impressed by the state's arguments that these rules were needed to protect parents from excessive and unjustified cost. The state was allowed, the court held, to serve its interests by mandating disclosures of required books, prices, and any deals the school may have struck with publishers; but the Puerto Rico rules were an unjustified interference with schools' discretion to choose what and how to teach. Seems like an eminently sound decision to me.

Thanks to David Cohen for the pointer.