What to Know About School Book Bans: Trends and Forecasts

In the past few years, there have been a surge in new state laws, administrative actions and lawsuits relating to banning certain books in elementary, middle and high school, particularly those having sexual content or are deemed as inappropriate or vulgar. These laws often implicate constitutional concerns under the First and Fourteenth amendments.

Meanwhile, Illinois, California, Colorado, Minnesota, Maryland, Vermont, Washington and New Jersey have passed anti-book ban laws, which prohibit the removal of books in libraries that receive state funding for partisan or discriminatory reasons.

The U.S. Supreme Court addressed the legality of book bans in Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982) in a plurality decision. In that case, the school district sought to remove several books from public schools that were deemed by the school board to be “anti-American, anti-Christian, anti-Semitic, and just plain filthy.” The Court reasoned that school boards may not remove books from libraries simply because they dislike the ideas contained in the books and that school boards must have legitimate educational reasons for removing books, rather than a desire to suppress viewpoints.

Currently, there are several pending lawsuits relating to banned books including PEN America, Penguin Random House vs. Escambia County, Fla., School Board and Little v. Llano County. Plaintiffs who oppose book bans often allege that the book bans target topics such as gender-identity, LGBTQ+ issues, race and disproportionally impact minority authors.

Many of the lawsuits including Escambia County and Llano County have so far been resolved in favor of finding book bans to be unconstitutional under the First Amendment by compelling speech or setting broad and vague regulations. Some of the common features of laws and actions deemed unconstitutional by courts include:

• Failing to articulate a legitimate, educational purpose for the ban such as ensuring that materials are age-appropriate and educationally suitable.
• Not setting clear and objective standards such as using established definitions of harmful material under state law or prohibiting only materials that are explicitly illegal under state law.
• Using rating or labeling system for books that are not purely factual or uncontroversial and requiring subjective judgment.
• Basing the ban upon motivation of suppressing specific viewpoints or ideas.

Beyond public schools and entities, there are also legal implications for private schools that decide to ban certain books from their libraries and reading materials.

Some of those include:

• Discriminatory impact under Title VI if a book ban:
    -Disproportionally affects students of a particular race, color, or national origin or
    -Disproportionally affects students of a certain gender or gender identity.
• Evidence of intentional discrimination under Title VII if a book ban is motivated by discriminatory intent against a particular racial, ethic, or gender of a faculty or teacher.
• Risk of a governmental investigation such as by the U.S. Equal Employment Opportunity Commission or U.S. Department of Education’s Office for Civil Rights regarding potential discrimination.

As the various pending book ban cases move through the court system, we can anticipate potential circuit court splits and movements away from precedent including Pico. One shift may be that book bans are equivalent to governmental or commercial speech which is entitled to lesser First Amendment protections. Also, we can anticipate more legislation by states on both ends of the spectrum creating a patchwork of state laws as we have seen with many other education issues.

Please contact Rebecca Sha or any member of the Phelps Education team if you have questions or need advice or guidance.