A Teacher’s Dilemma

Posted by Valerie on March 24, 2009

I helped a teacher today. Don’t tell on me, okay?

My new customer has been teaching junior high for thirty-five years in a northern Illinois school district and was looking for good, colorful, well-written children’s books on medieval times.

I let her know that none of my books have been scanned or tested and that I have no way of knowing which of my older children’s books might be over 600 ppm in some component. I also told her that the CPSC says that their limited evidence has pre-1985 books hovering right around the 300 ppm mark, and that any books that are over 300 ppm in any component will be illegal to distribute in her classroom as of August 10, 2009.

Deciding to put the educational interests of her students ahead of such foolishness, she purchased the following:

• Heraldry: The Story of Armorial Bearings by Walter Buehr, 1964
  She has her students make shields and likes the pictures of armorial elements in this book, which is the most intelligent description of this topic that we’ve seen for children. (This teacher told me that making shields is okay, but that students in her school are forbidden to construct even cardboard swords.)
• The Roman Empire and the Dark Ages by Giovanni Caselli, 1981
  “These illustrations are wonderful!” (And they really are: loads of pictures of clothing, housewares, weapons, tools and more.)
• A Florentine Merchant (Everyday Life Series) also by Giovanni Caselli, 1986
  Whew! We just made it on dating with this short, well-illustrated book which follows a medieval merchant through a typical day.
• Living in a Castle by R. J. Unstead, 1971
  R. J. Unstead understood the kinds of things kids want to know. We like his books especially when, as here, they are colorfully illustrated by Victor Ambrus.
• The Search for King Arthur (A Horizon-Caravel Book) by Christopher Hibbert, 1969
  Sale of this outstanding book, which is illustrated from primary sources, has no legal implications since it was written for ages 12 and up. Whew!
• Made in the Middle Ages by Christine Price, 1961
  A visual feast of art and artifacts from medieval times, well and colorfully illustrated for children.

This teacher said that if she brought her own classroom into compliance, she would lose most of her carefully collected library and many more educational supplies that she finds very helpful. She said, “I guess our whole shelf of microscopes would have to go, too.”

This teacher is working to give her students a rich, well-rounded education and she finds older books very useful in her classroom. Meanwhile, her experience confirms my own: children just don’t eat books.

Has Henry Waxman talked to any experienced teachers? Would it change his mind if he did?

In other news, I had an interview with the Beloit Daily News today.

Libraries and CPSIA

Posted by Valerie on March 21, 2009

I want to write more about Nancy Nord’s letter to Representative John D. Dingell later, because it was a treasure trove of information and presented very well.

But for now, this statement was really troubling.

“…information received from the trade associations…suggests that most library books lent to children are recycled approximately every 18 lending cycles or three years. Thus, it appears that few of the books being provided to children in their schools and from libraries would be more than 20 years old.”

This issue is well within my area of expertise, given that Jacobsen Books regularly sees freshly discarded ex-library children’s books from about 100 libraries in the Illinois-Wisconsin stateline area. We have quite a bit of experience working with libraries in Madison, Milwaukee, and Rockford as well as suburban and rural libraries in this region.

In my opinion, the trade associations are reporting an ideal world for publishers, not the real world as it exists for libraries. I’m not aware of a single library for which this assessment is accurate.

I wondered what a librarian would say, so I just walked over the next block to our library to talk to one of our librarians. I wanted to see her face when she heard that the CPSC thinks that the average children’s book is retained in a library collection for three years.

“Three years? Not in any library that I’m aware of! That’s probably about accurate for modern adult fiction, but not for any other area in the library, especially not children’s books.”

If the CPSC is very interested in how a permanent date cut-off in the 70’s or 80’s would work for public libraries, they really ought to talk to lots of them and not forget to ask small libraries in rural and other less prosperous areas.

A date cut-off that would really create minimal havoc for children’s libraries would actually be somewhere around 1950 or so. With few exceptions, only the smallest and least prosperous libraries still have a few pre-1950 children’s books on their shelves.

I know quite a few libraries that still have substantial numbers (hundreds, even thousands) of books published in the 1950’s, and many more have told me that they would have kept many more of these older books if not for lack of space.

Wisconsin Enforcement Info

Posted by Valerie on March 20, 2009

I just talked to Michelle Brennan at the Wisconsin Department of Agriculture, Trade & Consumer Protection. This is the agency that the Wisconsin Attorney General relies on when it comes to selecting and pursuing consumer protection cases.

She told me that right now, Wisconsin is not actively pursuing CPSIA cases or actively enforcing the post-1985 book standard. She said DATCP is not sending inspectors into bookstores, and that, right now, no one thinks that 1985 will be the final cut-off date for the legal sale of children’s books, but that the CPSC is still looking at data to see if maybe that date can be pushed back further. She said that Wisconsin will take its cue from the CPSC, will wait to see what the final rule will be, and will follow the federal guidelines.

She said that even though, right now, Wisconsin is not actively enforcing the post-1985 standard, she does not want me to feel that there’s no potential problem if I were to continue to sell old children’s books. She told me that there are federal inspectors in Wisconsin who are required to enforce CPSIA as it pertains to books, that CPSC inspectors who are already in Wisconsin do visit bookstores and thrift stores to check on compliance. Also, if a consumer were to come into my store and feel inclined to report me to Wisconsin DATCP for CPSIA non-compliance, then the DATCP would be required to come and investigate.

She said that I “may want” to set aside all of my pre-1985 books and hold them and not offer them for sale and wait to see what will happen, perhaps hold them in a garage for now, especially since Congress might even make changes to the law that could allow me to sell more of them in the future. She said that she didn’t want to tell me that this is what I should do, but she wanted me to understand that CPSIA is the law and that CPSIA being enforced at the federal level as written, and that it’s definitely enforceable and ultimately will be enforced at the state level as well.

She seemed more knowledgeable about CPSIA as it relates to children’s books than anyone I’ve spoken with at any other government agency or congressional office. I was not shocked or surprised by this, which seems to me an accurate assessment of the duties of Wisconsin, as spelled out in CPSIA.

My Constitutional questions remain, however. Perhaps as more than a curiosity, the Wisconsin Constitution states, “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press.”

The Annotated Wisconsin Constitution maintained at the Wisconsin State Legislature web site includes the following references:
“Commercial speech is protected by the 1st amendment. The government must show a restriction directly advances a substantial interest for it to be constitutional.”

“For restrictions on commercial speech to stand a constitutional challenge, the restriction must not be more extensive than is necessary to serve the government’s interests.”

Publishers Weekly

Posted by Valerie on March 19, 2009

Resellers of used children’s books are not required to test books or provide certification, but at the same time they cannot sell any books for children that are not safe, as defined by the Act. Most used booksellers continue to offer older books, even without proof that they’re safe, believing the risk is minimal and the harm from destroying children’s books outweighs any danger of lead exposure.

Staffers at Jacobsen Books in Clinton, Wis., used crime scene tape to express disapproval with CPSIA guidelines.

“I’m looking at it as a free speech issue,” says Valerie Jacobsen, owner of Jacobsen Books in Clinton, Wis., which sells 7,000 to 8,000 children’s books in its shop and online. She estimates 65% of her inventory for kids 8–12 and 35% for kids 3–8 was printed before 1986. “I just know that, from a moral position, I want to continue to sell them,” she says. “But it also makes me uncomfortable that someone could decide to make me a test case.”

Jacobsen surveyed used booksellers about their response to the CPSIA on her Yahoo Groups page. Of 79 who responded, 61% said they would continue to sell children’s books as they always have, 31% hadn’t decided what to do, 2% had removed all pre-1986 books from their shelves, and 3% said they removed some that seemed like they might be risky. None had tested any books.

Read More at Publishers Weekly

First Amendment

Posted by Valerie on

While parents have the authority, even the duty, to guide and restrict the scope of their own children’s reading, the Bill of Rights makes it perfectly clear that Congress does not share that authority.

Over the years, the courts have taught us that even content-neutral restrictions of our First Amendment rights must pass all three of the following tests:

[1] The restriction must be genuinely content-neutral. Neutrality isn’t always obvious, and restrictions that seem to be content-neutral on their faces might inadvertantly target some kinds of content more than others.

Under this test, I think it could be fairly argued that by keeping pre-1985 books out of children’s hands, Congress is unfairly restricting children’s access to older, more conservative, ”traditional” American values.

[2] The restriction must be narrowly tailored to serve a significant government interest in the least restrictive way. The government interest must be more than merely extant; it must be significant.

Under this test, CPSIA has not even the smallest hope of constitutionality. CPSIA restriction of our children’s freedom to access information was unanticipated and unintended; it was accidental. Congress has never expressed even the mildest interest in keeping pre-1985 books away from children, and we have no evidence that children will benefit from the loss of these books in any way.

I don’t think Congress could successfully make the leap from accidental infringement to proving a significant government interest, and what’s more, I don’t believe that they are inclined to do so.

[3] The restriction must leave open ample alternative channels of communication of the same content. Alternatives must be ample and readily available, not merely possible.

While CPSIA does leave the theoretical option of reprinting everything old and precious, the realities of the market render that extremely improbable. Congress has not attached one easily surmounted restriction with CPISA; Congress has actually created a situation where it will be virtually impossible to fully comply with CPSIA and still leave the full breadth of twentieth-century literary content available to children.

If you picture a government confiscating all the work of a press, but then permitting that press to reprint all of its past work, the result would be infringement of the freedom of the press. The economic reality would not be immaterial.

See Albert Krantz v City of Fort Smith for the application of these three tests to one content-neutral restriction of speech.

Given that we believe CPSIA is an unconstitutional restriction of the First Amendment freedom of American children, we are treating it as such in our business.

“The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed … An unconstitutional law is void.” (American Jurisprudence, Second Ed, Sec. 178)

We will continue to sell children’s books, and are in the process of returning to full marketing , but at the same time we do not find it comfortable to operate with this degree of uncertainty–or with even the smallest potential for government oppression against our good business. 

Both for the sake of our business and our family and for the unjust oppression of other businesses and families and especially for the great potential for harm to America’s low income children, we intend to oppose CPSIA for as long as it remains on the books.