Legal Matters: May 2022
Recent headlines report a renewed interest in the debate about what books students should have access to in school libraries and classrooms. Sometimes the books at issue include discussions about race, sexual orientation, sexual violence, or other “explicit” content. For example, take the recent governor’s race in Virginia partly focused on banning certain books in schools. This debate originally stemmed from a parent in the state objecting to her son reading Beloved by Toni Morrison (a book that won the Pulitzer Prize for Fiction) during his senior year in an AP literature course. More recently, Maus, a Pulitzer-Prize winning graphic novel by Art Spiegelman, was banned by a Tennessee school district due to inappropriate language and an illustration of a nude woman. Although the recent controversies encompass a wide span of topics, the Anti-Defamation League reported that in 2020, six out of the 10 most-challenged books focused on race and racism. This article highlights some of the legal issues related to banning books in public school libraries.
What Has the U.S. Supreme Court Said About This Issue?
In 1982, the U.S. Supreme Court examined a matter related to removing library books from a public school library. This case, Island Trees Union Free School District v. Pico, involved a school board in New York that directed the removal of certain books from the shelves of the junior high and high school libraries. The school board contended that the books at issue were “anti-American, anti-Christian, anti-Semitic, and just plain filthy.” There were 11 books that were ultimately targeted, including The Fixer by Bernard Malamud and Black Boy by Richard Wright. Interestingly, the board was acting contrary to the recommendations of a committee of parents and school staff that had examined these books. The lead plaintiff, who was acting on behalf of several other students in the school district, filed a lawsuit in a federal district court challenging the school board’s plan to remove the 11 books. The school board won in the federal district court, but the U.S. Court of Appeals for the Second Circuit reversed that decision. The case was then appealed to the U.S. Supreme Court.
At the U.S. Supreme Court, the question examined was whether the board’s decision to prohibit certain books from its school libraries, based on their content, violated the First Amendment’s freedom of speech protections for students. In a 5–4 plurality opinion,1 the Court decided that these books could not be banned, but it was not a clear-cut majority opinion. The Court determined that school boards do not have unlimited authority to remove books from library shelves. According to the Court, a school library is a place for students to engage in voluntary inquiry and a place where important information is disseminated. As a result, school officials are not permitted to restrict the availability of books in school libraries simply because certain officials disagree with a book’s content. It is important to note that the decision in Island Trees Union Free School District v. Pico was specifically focused on the school library and was not a case about classroom curricular issues.
It is also important to highlight that the Court did agree that school boards could remove books for sound educational reasons or legitimate purposes, like pervasive vulgarity or lack of educational suitability, but, in this case, the books did not fall under this category. Instead, they were removed because some school board members had simply disagreed with the content. Although this case has been criticized for its lack of clear guidance given the various concurring opinions involved, the decision continues to be discussed as school boards are attempting to ban books from school library shelves in several areas of the country.
What Influence Has Pico Had on Other Challenges Involving School Libraries?
Despite Pico being a narrow opinion, some lower courts have relied on it in subsequent decisions. In 1995, a federal district court ruled that a school board in Kansas violated the First Amendment rights of its students by ordering the removal of Annie on My Mind by Nancy Garden from a school library in the district. This book had received numerous accolades and was chosen by the American Library Association as one of the Best of the Best books for young adults. The school district took issue with the lesbian characters in the book. Relying on the Pico case, the district court found that books may be removed for “pervasive vulgarity” or for a lack of “educational suitability,” but that it is unconstitutional to remove books in order to deny students access to ideas with which school officials disagree.
Similarly, in 2003, a school library in Arkansas required parental permission to access books that related to witchcraft or encouraged disobedience. For example, students needed parental permission before reading the Harry Potter series. In a challenge to this policy, a federal district court found that students’ First Amendment rights were violated when the school district restricted access to these books. The court reasoned that there was no evidence that would have led the board to reasonably believe that these books would have caused a disruption in school. Moreover, it was impermissible to restrict access to books based on the ideas expressed within them. Similar to the Pico decision, the court concluded that it was not within a school board’s authority to prevent students from reading books that offended the personal taste of individual school board members.
These decisions suggest that school boards may not remove books because of personal distaste. At the same time, a school board has the authority to remove books that are considered “pervasively vulgar” or those that “lack educational suitability.” Of course, the interpretation of what may be considered pervasively vulgar, for instance, will vary; as indicated by the decisions referenced above, however, this standard may be higher than some school boards might realize. Books with content related to gay characters or slavery, for example, would not likely fall under this category. It would be helpful for school officials to have a better understanding of this area of law to avoid costly and time-consuming litigation.
Suzanne E. Eckes is a professor at the University of Wisconsin-Madison. She is also a co-author of Principals Avoiding Lawsuits and a past president of the Education Law Association. Lauren K. Eckes is a high school student in Ohio who is interested in the current national debate on book banning.
1 The plurality opinion is the opinion that received the greatest number of votes among the various opinions filed. It occurs when there are not enough judges’ votes to form a majority on the court.
ADL (2021, Oct. 12). Schools are using anti-critical race theory laws to ban children’s literature. ADL Blog. adl.org/blog/schools-are-using-anti-critical-race-theory-laws-to-ban-childrens-literature
Case v. Unified Sch. Dist., 908 F Supp. 864 (1995).
Counts v. Cedarville Sch. Dist., 295 F. Supp. 2d 996 (W.D. Ark. 2003).
Bd. of Educ. v. Pico, 457 U.S. 853 (1982).
Natanson, H. (2021, Sept. 28). Fairfax school system pulls two books from libraries after complaints over sexual content. The Washington Post. washingtonpost.com/local/education/fairfax-schools-remove-books-lgbtq/2021/09/28/a3bae2fc-1fc3-11ec-9309-b743b79abc59_story.html
Navarro, A. (2021, Oct. 26). Toni Morrison’s “Beloved” at center of latest battle in Virginia governor’s race. CBS News. cbsnews.com/news/virginia-governor-race-toni-morrison-beloved
O’Kane, C. (2021, Nov. 17). “Beloved” isn’t the only book parents have challenged. Here’s why and how books get banned. CBS News. cbsnews.com/news/banned-books-beloved-controversy-critical-race-theory
Shapiro, T.R. (2013, Feb. 7). Fairfax County parent wants “Beloved” banned from school system. The Washington Post. washingtonpost.com/local/education/fairfax-county-parent-wants-beloved-banned-from-school-system/2013/02/07/99521330-6bd1-11e2-ada0-5ca5fa7ebe79_story.html