The U.S. Supreme Court is seen as, Tuesday, May 16, 2023, in Washington.
Alex Brandon / AP Photo
The U.S. Supreme Court is seen as, Tuesday, May 16, 2023, in Washington.
Alex Brandon / AP Photo
Hempfield School District in Lancaster County is reviewing its policy on school library materials to restrict access to sexually explicit books and other resources. The proposed changes have caused a divide in the community.
Some parents support a policy to restrict sexual content in school libraries, claiming it will create a better system for curating and selecting books that are age-appropriate. Others say the board is creating policies that could restrict students’ First Amendment rights.
What is playing out at Hempfield reflects a national trend of school districts making it easier to challenge and remove books from libraries. In Pennsylvania, Central Bucks School District adopted a policy that bans “sexualized content” in its libraries, which led to the removal of books such as “This Book is Gay,” by Juno Dawson, and “Gender Queer,” by Maia Kobabe. In Perkiomen Valley, students walked out in protest against a proposed policy to restrict sexually explicit content in libraries.
But how much authority do school boards have to remove books, and at what point could a removal violate students’ First Amendment rights.
Here is what legal scholars and school librarians have to say.
This is addressed in the 1982 Supreme Court case Board of Education, Island Trees Union Free School District v. Pico. A parent group complained about nine books, including Kurt Vonnegut’s “Slaughterhouse-Five” and Langston Hughes’ “Best Short Stories by Negro Writers.”
The board members, who described the works as “anti-American, anti-Christian, anti-Semitic and just plain filthy,” removed the books in 1976. That decision was challenged in a lawsuit brought by a group of students, one of whom was Steven Pico.
The Supreme Court ruled in favor of the students. Justice William Brennan Jr. wrote, “Local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books.” The ruling states the board erred by not going through the usual review by librarians before deciding to remove them.
But legal scholars say the precedent established by Pico is limited. It was not a majority opinion, but rather a plurality opinion, meaning it did not receive support of more than half the justices. That weakens its precedential value, said Catherine Ross, Professor of Law at George Washington University.
“Nonetheless, that is the sole Supreme Court case on the removal of school library books, and the lower courts do look to it for a standard,” Ross said.
The opinion is also murky when it comes to materials that contain themes or depictions of sex.
In his opinion, Justice Brennan wrote that the school board members would not have acted unconstitutionally if they had proven that the books removed from the library were “pervasively vulgar,” and if they had made their decision solely on the “educational suitability” of the books.
The opinion also agrees with the petitioners that the school boards have the right to “transmit community values,” and that gives school boards broad authority to make decisions about what they believe is better for the community they serve.
While school boards have broad authority over books that are part of the curriculum, the Pico ruling made a distinction when it comes to school libraries.
The Foundation for Individual Rights and Expression (FIRE), a nonprofit that advocates for First Amendment rights, sent a letter in February to Central Bucks School District to voice opposition to the district’s newly adopted policy that prohibits “sexualized” material and content that is “inappropriate.” The letter, which cites Brennan on the Pico case, acknowledges schools have authority over matters related curriculum materials, but libraries are different because as, Brennan explained, “selection of books from these libraries is entirely a matter of free choice; the libraries afford them [students] an opportunity at self-education and individual enrichment that is wholly optional.”
Despite that distinction, school boards can still remove books if they have a standard policy in place to do so.
Hempfield School District in Lancaster County is considering a library policy that “sexually explicit content/material is not appropriate for school age children and this material will not be made available to students in our schools.” The policy defines sexually explicit as “content/material that encourages an excessive interest in sexual matters and graphically describes/illustrates sexual behavior or acts of any kind.”
John Culhane, professor of law at Widener University Delaware Law School, says Hempfield’s proposed policy would not violate the First Amendment because it includes a process for formally challenging and reviewing materials. Pico established school districts must have “regular, and facially unbiased procedures” for removing books that are in the library or are not part of a curriculum. The district can review book challenges and remove books, if they do it in an “even-handed” way, Culhane said.
The Supreme Court also uses the Miller Test, a marker for determining whether content is too obscene to be protected by the First Amendment. The test looks at whether a work appeals to the “prurient” interests of a person, meaning it incites an excessive or “unhealthy” interest in sexual matters, if the work also depicts sexual conduct in a “patently offensive way,” and whether it lacks any literary, artistic, political, or scientific value. If the work meets that criteria, it is considered legally obscene.
Most legal experts agree the Miller test sets a high bar to prove obscenity, and most books in a school library would not meet its criteria at least because of their literary value. But school boards do not have to adhere to this test when deciding what is age -appropriate for their communities, Culhane said.
“Because you’re dealing with kids, and because you’re dealing with these issues about what can and can’t be in school libraries and protecting kids, the school has a lot more authority to declare things to be sexually explicit than you would have under the Miller test,” he said.
That does not mean that school boards can completely avoid First Amendment challenges by only removing books that depict sex. If a parent sues a school district, claiming it violated their child’s First Amendment rights by removing books, courts might look at a variety of factors, such as the minor’s age and whether the book was removed from an elementary, middle or high school library.
“In First Amendment cases, the nuances are so important. The facts really matter,” Ross said. “So a lot would depend on, if they do adopt this policy, how they craft it, whether the definitions are vague, or definitions seem to be administered in an objective way. If we’re under the educational suitability standard, do the courts still regard that as the right standard?”
The courts would also look at the school board’s motive, if a lawsuit is claiming the district removed a book because it is trying to promote its particular set of values. In Pico, the school board members had attended a meeting of a national conservative group and brought back a list of books the group said should be removed.
If, for instance, a court finds school members mostly removed books on LGBTQ, racial issues or political ideas, even if the claim was that they were sexually explicit, there could be a potential First Amendment violation because the school board removed the books based on ideological objections to the books. If the case is that a school board is targeting books written by and for certain groups, someone could also sue for a violation of the Equal Protection Clause.
“That’s why we have all kinds of Supreme Court cases that have found violations of equal protection under the law where certain groups are treated differently from other groups. So, that is, I think, a better way of getting at some of these problems,” Culhane said
Pico established that districts need to have a procedure in place, in case someone formally challenges a book in a school library.
Most districts have policies for challenging books. Parents can fill out a form stating their reasons for not wanting a certain book in the library and submit it to the district. Before starting a formal process to decide whether a book should be removed, the superintendent should have a conversation with the concerned parent to discuss solutions, said Aimee Emerson, president of the Pennsylvania School Librarians Association.
If the concerns are not alleviated, the district creates a review committee, composed of teachers, library staff and administrators. They weigh different factors before deciding whether to remove or keep the book where it is. While these discussions are happening, the book remains on the library shelf.
Completely removing a book from the district is not typically the best practice, Emerson said.
“Usually what happens then, is that the book is found to be appropriate –and sometimes not– sometimes a book might be deemed not relevant for a school library setting, so maybe in the middle school, so then it would be moved to the high school setting,” Emerson said.
Some districts have “opt out” or permission policies, by which parents can notify the school of a specific book they do not want their child to access. Emerson says that librarians are able to mark a specific patron as not being able to check out a specific book in the library’s database.
“We want to educate parents as well, that parents do have a voice in what their students can read. It’s just the fact that right now there’s a lot of talk that they don’t have that right, and they absolutely do,” Emerson said.
Pennsylvania schools also have to adhere to state laws regarding the removal of books from the school. For example, a district decision to approve a textbook or a course of study must be approved by the school board’s majority. The law also requires approval from a superintendent before a decision to change textbooks, unless two thirds or more of a school board votes for the changes.
Many parents who are advocating to take sexually explicit books out of schools say they are concerned about minors having free access to material that could potentially be harmful for them. Some school board members and parents argue that adding additional guardrails for certain books could address such concerns.
Those could lead to other problems as they are being implemented, said Aaron Terr, Director of Public Advocacy at the Foundation for Individual Rights and Expression (FIRE). Some school districts might start limiting their library collections to avoid controversy.
“It can place a big burden on the school to review these challenges and to make these decisions, and that can end up having a chilling effect, where the schools just shy away from stocking any books in their library that might solicit an objection from some member of the community,” Terr said.
Restrictive school library policies and a general accusatory climate against school employees for supposedly not protecting kids from inappropriate material could also have an impact on the morale of school librarians. In response to growing book challenges across the state, the Pennsylvania Association of School Librarians created an “intellectual freedom task force” to offer help and resources to librarians navigating issues related to book challenges in their schools.
“It’s been getting pretty heated right now. You know, there’s a lot of school librarians who need assistance right now,” Emerson said.” But some librarians might be too intimidated or worried about retaliation to seek help, Emerson added.
“They’re fighting in the trenches by themselves, and we’re saying to them, let us help you. This is no longer a solitary fight.”
Schools across the country, and in Pennsylvania, have been hit with lawsuits for removing books from their libraries.
Recently, Writers’ group PEN America and publisher Penguin Random House sued a school district in Escambia County, Florida, alleging that school officials violated students’ First Amendment rights and equal rights protections by mostly removing books that focus on LGBTQ relationships.
The board officials banned dozens of books in response to a barrage of challenges brought forth by conservative parents and teachers.
In Missouri, the American Civil Liberties Union (ACLU) sued Independence School District in Missouri on behalf of a group of parents, also on the basis of alleged First Amendment violations. The district had removed a book that includes a non-binary character. Central Bucks in Bucks County was also sued by the ACLU, in part because of book policy the organization says targets LGBTQ students. The Department of Education is investigating the district.
At Hempfield, school board members will be deciding in June whether to restrict access to sexually explicit books in district libraries. A group of community members held a rally to voice opposition to the proposed policies, and a group of Hempfield students also walked out in protest.