The Right to Read: School Book Bans and the First Amendment

The Right to Read: School Book Bans and the First Amendment

Public school libraries are essential to the development of young minds, yet books are being pulled off the shelves at an alarming rate. PEN America, an organization for the maintenance of free speech rights, found that book bans increased in public schools thirty-three percent between the 2021–22 and 2022–23 school years.^[1] Young adult novels with female, nonbinary, or LGBTQ+ protagonists and those that center around race and sexuality are getting banned most frequently.^[2]

The increase can be attributed, at least in part, to the fact that public school curriculum has become the target of conservative political campaigns.^[3] For example, Glenn Youngkin, the current governor of Virginia, put a mother trying to get Toni Morrison’s Beloved banned from her child’s high school English curriculum at the center of one of his final campaign ads.^[4] Deborah Caldwell-Stone, the director of the Office for Intellectual Freedom at the American Library Association (ALA), noted that there has been a shift from individual parents raising concerns about a singular book to “organized political advocacy groups” approaching school boards “with a long list of books they want banned because those books don’t fit their political, moral or religious agenda.”^[5] Three prominent national organizations are pushing for book bans in school districts around the country—Moms for Liberty, Citizens Defending Freedom, and Parents’ Rights in Education—all of which have chapters and affiliates in many states.^[6] Since there is no sign that the attacks on school libraries will slow down any time soon, it is necessary to understand how students’ First Amendment rights are implicated.

Do Book Bans Infringe on Students’ Free Speech Rights?

Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”^[7] As such, “the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library.”^[8] The Supreme Court has held that, just as it protects the right to distribute literature, the First Amendment also protects the right to receive information.^[9]

Board of Education, Island Trees Union Free School District No. 26 v. Pico is the only case in which the Supreme Court has confronted the issue of school book bans.^[10] The case concerned the removal of nine books from the high school and six from the middle school in Island Trees, NY.^[11] The school district justified the decision by stating that the books were “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy . . . .”^[12] Although the Supreme Court held that the students’ First Amendment rights had been violated and that school administrators cannot exercise discretion in a “narrowly partisan or political manner,” only two other justices joined the entirety of Justice Brennan’s opinion.^[13] As such, Pico did not set a firm precedent on the First Amendment rights of students regarding the books found in their school library.^[14] Some lower court judges have been hesitant to rely on Pico for this reason, hindering the ability of advocates to put a stop to book bans through litigation.^[15]

However, other First Amendment precedent may be able to help bolster students’ claims against the removal of books from their schools’ shelves.^[16] For example, in Brown v. Entertainment Merchants Ass’n, the Supreme Court held that a California law restricting the sale of violent video games to minors “straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children.”^[17] While the Court acknowledged these interests as legitimate ends, “when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive.”^[18] Consequently, if the Court were to extend Brown to school book bans, the administrators implementing the restrictions would have to successfully assert that the books removed are directly and narrowly serving a legitimate end like “addressing a serious social problem.”^[19]

The lack of settled First Amendment precedent has led attorneys to get creative. In Texas, the American Civil Liberties Union (ACLU) filed a complaint with the U.S. Department of Education’s Office for Civil Rights on the basis that Granbury Independent School District (ISD) violated Title IX when it removed 130 books from school shelves, of which over three-quarters included LGBTQ+ characters or themes.^[20] Should the government accept the argument that Granbury ISD’s book removal was discrimination on the basis of sex, it would open an alternative legal avenue for those seeking to challenge school book bans.^[21] However, this argument is contingent on the content of the books removed, so it is still necessary for a clearer First Amendment precedent to protect against sweeping bans.

Book Bans Currently on the Docket

The book ban case to watch right now is happening in the Northern District of Florida, where PEN America, Penguin Random House, and multiple parents and authors have filed suit over book removals in Escambia County School District.^[22] The Escambia County School board removed and restricted access to books discussing race, racism, and LGBTQ identities, which went against the recommendation of the district review committee that evaluates book challenges.^[23] Additionally, while the lawsuit was pending, Florida passed HB 1069 to go into effect on July 1, 2023, which provides that any material available in school libraries that “depicts or describes sexual conduct” is subject to challenge and that parents are not permitted to opt in to allowing their children access to the challenged material.^[24]

The plaintiffs make three claims for relief: (1) the school board’s restrictions constitute viewpoint discrimination under the First Amendment, (2) the school board’s actions have violated the students’ First Amendment right to receive information, and (3) the disproportionate removal of non-white and LGBTQ authors and books is a violation of the Equal Protection Clause of the Fourteenth Amendment.^[25] They are seeking injunctive relief to have the banned books put back on the shelves.^[26]

The school board filed a motion to dismiss for failure to state a claim on August 21, 2023, and the court has yet to rule on the motion. ^[27] Whatever the outcome, this case could have sweeping implications given the rampant bans happening around the country.^[28] This case could serve as an example on how to square current First Amendment precedent with school book bans for other courts that are sure to face this issue.