Oklahoma Bar Journal
Banned Books: Censorship and Protecting Students from [CENSORED]
By Anthony T. Childers
For those familiar with any amount of history, book banning is nothing new. Religious texts, scientific theories and other written works challenging the prevailing social mores have been subject to censorship, removal from shelves or in the most extreme examples, burning. The motivations for censoring ideas have been varied, but the justification for censorship has traditionally relied on some authority’s “duty” to forge the minds and mold the conscience of society.
You need not go far into the historical record to find examples. In 2019, J.K. Rowling’s Harry Potter caused outrage among some groups who were demanding that the series be removed from library shelves. According to some, the books were objectionable. They complained the books, written for a 7 to 12-year-old audience, depicted magic and witchcraft and gave children access to “real spells” in violation of their own beliefs or because they considered such depictions to be immoral and inappropriate for young adults. For adults, within that same timeframe, it was Margaret Atwood’s The Handmaid’s Tale that came under the looking glass. The book depicted a future totalitarian society set in the southern United States, where women were treated as property. The book used coarse language and typed text to describe graphic scenes apparently too much even for the eyes (or thoughts) of a mature adult. Once again, the objections were based on personal morals, religious beliefs or simply a disagreement with the ideas being expressed. For the objectors, what was bad for them was bad for all.
BANNING BOOKS AND LIMITING STUDENT SPEECH
In the United States, the government is prohibited from suppressing speech or ideas simply because the powers that be, or society itself, disagree.1 However, within the public school setting, wherein the state undertakes the responsibility of educating children and instilling in them community values, the state has significant discretion over the content of its curriculum. Further, though students maintain their First Amendment rights, the right to free speech is “not automatically coextensive with the rights of adults in other settings.”2 The effect is that school libraries can be particularly vulnerable to censorship based on calls from even a small minority who might disagree with ideas expressed in a book and if not handled appropriately can lead to litigation and liability.
Traditionally, when it comes to school curriculum, states and public school systems have been given almost total discretion in determining what materials should be taught in the classroom. The 10th Amendment reserves those “powers not delegated to the United States by the Constitution” to the states or people, and public education is one such area held by the states.3Yet, the state’s authority over curriculum is still constrained within the limits of an individual’s rights protected within the constitutional amendments.4 Under those protections, parents, students and school employees have successfully challenged a number of practices and restrictions, including government-sponsored prayer and other religious observances, required recitation of the Pledge of Allegiance and certain compulsory education requirements.5 Even within the highly discretionary area of curriculum, courts have struck down laws that prevent ideas from being taught within the classroom based on a violation of the First Amendment.6
Oklahoma public schools have seen their own fair share of book removals. In 1960, Tulsa Public Schools terminated a teacher who had assigned The Catcher in the Rye (admittedly a book whose underage protagonist drinks, curses and hires a prostitute, though doing little else than talking) to her 11th grade English class. Though she was later reinstated, she resigned, and the book was removed.7 More recently, from the period of July 1, 2021, to March 31, 2022, two Oklahoma school districts banned 43 books from their libraries.8 Some of those titles included Brave New World, Of Mice and Men, Lord of the Flies, I Know Why the Caged Bird Sings and The Bluest Eye, books that are considered classic literary works. As in the examples above, private citizens have their own protected right to object, but what legal standard applies when parents or the school board demand materials be removed from the school library, and are the First Amendment rights of students implicated?
In West Virginia Board of Education v. Barnette, the court recognized that students maintain some constitutional protections within the public school setting. Pronouncing that, “No official … can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion,” the court found that a law compelling students to salute the U.S. flag and recite the pledge was a violation of their First Amendment rights.9 Later, in Tinker v. Des Moines Community Independent School District, the court strongly reiterated those constitutional protections when it famously declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”10 When students were suspended for wearing black arm bands to protest the U.S.’ involvement in Vietnam, the court affirmed that students’ First Amendment rights remain, even within the school setting. Under the standard established in Tinker, student speech could only be restricted if it created a substantial disruption to the school’s ability to carry out its educational program.
In the decades following Tinker, the court considered other situations involving student speech and created additional exceptions to when student speech could be limited. In Bethel v. Fraser, the court considered student speech that was filled with sexual innuendos and delivered at a student assembly. Looking to Tinker, the court stated the First Amendment does not require that public schools surrender control to students; rather, students’ rights are curtailed by the schools’ “countervailing interest in teaching students the boundaries of socially appropriate behavior.”11 Lewd or vulgar language could be prohibited within the school setting, even though an adult’s speech might be protected in a similar scenario. Later, in Hazelwood v. Kuhlmeier and Morse v. Frederick, the court created two additional exceptions: school sponsored/curricular speech and speech advocating illegal activity.12
BOARD OF EDUCATION V. PICO
It wasn’t until 1982 that the court first considered a challenge to the removal of materials from a school library. Unfortunately, the court’s decision offered little in terms of a clear test and resulted in a plurality determination without a binding opinion. In Board of Education v. Pico, a Long Island public school board removed 11 titles from the school library that they considered to be “anti-American, anti-Christian, anti-Semitic, and just plain filthy.”13 The board members had been provided with lists of “objectionable” books while attending a conference for parents concerned with education legislation. When the board members discovered some of those books were in their own school libraries, they directed that the books be removed so they could personally review them.14 Additionally, the board appointed a “Book Review Committee” consisting of parents and school personnel to make a recommendation to the board on the appropriateness of the books. The committee was instructed to consider educational suitability, good taste, relevance and appropriateness to age and grade level in making their recommendation.15When the committee could only agree that two of the 11 books on the list be removed from the libraries, the board rejected the committee’s recommendation, returning only one title to the shelves and making another subject to parent approval. The nine other books on the list were banned, though the board gave no explanation for why it ignored the committee’s recommendation.16 When students in the district appealed, the trial court granted summary judgment for the board members relying on the line of cases that curricular decisions were given great discretion. The 2nd Circuit reversed and the case went on appeal to the U.S. Supreme Court.
On consideration by the court, a plurality agreed the board’s removal of the books violated the First Amendment free speech clause.17 The plurality referred to Tinker for the fact that students maintain their rights to freedom of speech “at the schoolhouse gate” and found that these rights can be implicated when a school attempts to remove books from their libraries. Not only does the Constitution protect speech but also the right to receive information and ideas.18Citing West Virginia Board of Education v. Barnette, the court stated that schools could not ban books from library shelves “simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other opinion.’”19 The plurality made clear that the consideration of library materials is separate and apart from a school’s determination on curriculum.
Within the curriculum, a school or the state has a legitimate interest in promoting traditional moral, social and political values, so long as they comport with the demands of the First Amendment. Though discretion applied to curriculum, the “regime of voluntary inquiry” in school libraries did not lend itself to the same level of “absolute discretion.”20 Traditional classroom instruction is one where the teacher teaches, and the students listen; however, students are free to choose what they read from the school library. Before or after school or if there is free time, they can enter the library and make their own choices on what they want to learn and read what interests them either while still at school or at home on their own time. In short, it gives students access to ideas from within the “nurseries of democracy.”21 Instead, the plurality found that any discretion within the library setting cannot be “exercised in a narrowly partisan or political manner” or driven by a desire to remove ideas with which the board members might disagree.22 As emphasized by Justice Blackmun in his concurring opinion, decisions to censor ideas by removing school library books cannot be driven by a desire for political or societal orthodoxy.
In Pico, when the plurality examined the particular facts of the case in light of the motion for summary judgment standard, they found the evidence raised an issue of material fact as to whether the board members exceeded their discretion in removing the listed books. Though the board had an established policy, it ignored, without reason, the committee’s recommendation to remove only two of the books on the list. As Justice Brennan explained, had the record demonstrated that the board “had employed established, regular, and facially unbiased procedures for the review of controversial materials,” this would have been a very different case. Yet, the board had agreed their decision was based, at least in part, on the books being “anti-American” and on their own personal values, morals and tastes, not any particular pedagogical concern.
Justice Brennan’s opinion was joined by two other justices, with Justice Harry Blackmun joining in part and concurring in part. Justice Byron White concurred in result, but his concurrence was based on the procedural posture of the case. As no opinion was joined by a majority of the court, Pico is not a binding opinion; however, a framework can still be drawn from Pico that would appear to be in line with the court’s current jurisprudence. In fact, lower courts have continued to apply the plurality’s reasoning in Pico and have looked at whether the motivating factor for the removal was a disagreement over ideas in the book or some pedagogical concern such as accuracy, “pervasive vulgarity” or lewdness when taken in the context of the entire text.23 Within our own 10th Circuit, the court seemed to accept the Pico decision as being the rule of the court.24 Though there was no actual removal of materials in thecase the 10th Circuit considered, the court stated in dicta that the “Supreme Court … ruled” that the First Amendment was violated if the school board members removed books simply because they disagreed.
But we can turn toward other circuits for guidance as well. The 11th Circuit has twice considered board action on books. In ACLU of Florida v. Miami-Dade County School Board, the court first acknowledge that Pico was a plurality opinion but then assumed the test in Pico would still apply. In considering a challenge over the removal of Vamos a Cuba, a children’s board book that gave a very truncated overview of the life and culture in Cuba, the court used the same standard first articulated in Pico: If a book is removed “simply because they disliked the ideas contained in the book and sought by its removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion” the removal would be unconstitutional. The court, however, ultimately found the only motivation for removal was that the book was inaccurate in its depiction of life in Cuba. Removal due to accuracy would be an appropriate, pedagogically related reason for removal.25Further, the court drew a distinction between Pico and the action taken by the Miami-Dade School Board on the basis that the board had a set policy for challenging curricular and library materials as opposed to an ad hoc decision that would lend credibility to the idea that the books were censored simply because of a disagreement with the ideas they contained.
Other courts have also focused on whether there was some legitimate pedagogical reason for the removal and whether any policy outlining the process was followed.26 In Case v. Unified School District, a federal district court in Kansas found that the school had violated the First Amendment rights of its students when it removed a book from the library because it depicted a romantic relationship between two teenage girls.27 The evidence at trial made it apparent that the decision to remove the book was made only because of personal disapproval of the ideas in the book and because the school had received pressure from outside parent groups and the media.28 The book contained no vulgarity, offensive language or explicit sexual content and had received numerous literary awards, including “Best of the Best” for young adult books. Even the district’s own librarians had reviewed the book and found it to be appropriate content for students. The books had been on library shelves since the 1980s and were only removed after additional copies were donated by GLAAD. A board member testified that he was offended by the book’s “glorification of the gay lifestyle” that, in his opinion, could lead students to a destruction of “a healthy sexuality, self image, and … onslaught of physical destruction.” Other members considered it inappropriate, unsuitable for students, lacking in depth on the subject matter or simply not a topic that should be addressed in the public school setting. As in the cases discussed above, the school’s policy addressing the removal of materials was not followed. Based upon the evidence, the court found that when the school removed the book for being “educationally unsuitable,” the basis for that determination was their own disagreement with the ideas expressed in the book and thus a violation of the plaintiffs’ First Amendment rights. Testimony at trial revealed that every board member took into account their own personal objections to homosexuality, and any other stated concern was rooted in that objection.
Similarly, a school district in Arkansas moved J.K. Rowling’s Harry Potter books to a different part of the library and required a signed permission slip for students to check out the books.29 The board had stated their reasons for removal were over concerns that the books might promote disobedience and disrespect for authority but also because they disagreed with the depiction of witchcraft throughout the series. The board members’ testimony had made it clear: The reason for censoring the book was their own desire to suppress ideas they didn’t like. Citing Pico, the court found the decision to move the books and require parental approval was a violation of students’ First Amendment rights. Additionally, though the school attempted to argue that the books would create a substantial disruption to the educational environment, the exception defined in Tinker, the school district was unable to show any actual or foreseeable disruption simply by the fact that the books were in the library. The relocation of the books may have been a minimal inconvenience, especially considering the student plaintiff owned the books at home, but the court remarked, “The loss of First Amendment rights, even minimally, is injurious.”30 Clearly, though Picois not binding as a plurality opinion, the reasoning by the plurality continues to be utilized by courts confronted with removals from school libraries.31
OKLAHOMA’S HB 3096
Legislatively, Oklahoma’s public schools saw a wide variety of bills this year. Over 500 bills introduced or carried over into this session affected Oklahoma public schools. At least eight were directly related to materials in school libraries, but only one library-related bill became law. On April 29, 2022, Gov. Stitt signed HB 3096, which requires that school libraries “be reflective of the community standards for the population the library media center serves when acquiring an age-appropriate collection of materials, nonprint materials, multimedia resources, equipment, and supplies adequate in quality and quantity to meet the needs of students …” Effective Nov. 1, 2022, the law would seem to put into place some statewide standard that school libraries must consider when acquiring new books or other materials. Yet, nothing within the new legislation defines what is meant by community standards or age appropriateness – those terms would be defined at the local level, and consideration of what is appropriate will be made by the school district. The law appears to simply codify what is already the practice for Oklahoma schools. To the extent that a challenge may arise over what books a school is acquiring, the plurality in Pico made it clear they were not addressing the acquisition of new materials. Courts would likely grant very broad discretion to the school district in such a challenge; however, decisions on acquisition are not completely free of constraints as they may still implicate the First Amendment in certain circumstances.
Actions by public school boards or their administration that seek to remove or limit access to materials in the library may violate a student’s First Amendment rights. Whether the removal is based upon a personal religious belief and thus prohibited by the Establishment Clause or simply a disagreement with the ideas expressed in the material, the First Amendment provides protection to students in the K-12 setting. However, the First Amendment doesn’t prevent a school from removing materials for genuine educational or practical reasons. Schools that do have legitimate concerns regarding the educational appropriateness of materials in their library should comply with the decision in Pico and make that determination only after following an established district policy that considers genuine pedagogical interests. Age appropriateness, lewdness, vulgarity, accuracy and educational suitability are all appropriate areas for consideration; however, the simple fact that a complaint has been made would not be sufficient justification for removal. Public schools should carefully consider the source and volume of requests to restrict access to books or other materials and ensure decisions are based upon what is in the best interest of all students and on educationally appropriate factors. Beyond the school library, schools must also keep in mind efforts to block digital resources based on a disagreement with ideas.32 Even removing materials, whether in a physical library or made available digitally, simply because they might be offensive is not a sufficient reason for censorship and could result in a successful challenge.33 Though curricular decisions are provided significant discretion, a student’s First Amendment rights “may be directly and sharply implicated by the removal of books from the shelves of a school library.”34
ABOUT THE AUTHOR
Anthony T. Childers is a staff attorney with the Oklahoma State School Boards Association. He is a 2010 graduate of the OU College of Law and is a member and current president of the Oklahoma School Board Attorneys Association.
- Lamont v. Postmaster General, 381 U.S. 301 (1965).
- Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
- U.S. Const. amend. X.
- See e.g.,West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (invalidating the state’s compulsory flag salute law under the First Amendment’s Free Speech Clause); Engle v. Vitale, 370 U.S. 421 (1962) (holding that requiring a daily prayer written by the state board of regents at the start of every school day was a violation of the Establishment Clause); School District of Abington Township v. Schempp, 374 U.S. 203 (1963) (finding that a state law requiring “at least ten verses from the Holy Bible” to be read at the opening of each public school day was a violation of the establishment clause).
- Pierce v. Society of Sisters, 268 U.S. 510 (1925) (holding that a law requiring all children to be enrolled in public education was a violation of the 14th Amendment); Wisconsin v. Yoder, 406 U.S. 205 (1972) (Wisconsin’s law requiring all school-age children until the age of 16 was unconstitutional as applied to an Amish family whose religious beliefs circumscribed education beyond the eighth grade).
- Epperson v. Arkansas, 393 U.S. 97 (1967) (holding that a state law prohibiting the teaching of evolution in the classroom is unconstitutional).
- Battle of the Books: Literary Censorship in the Public Schools, 1950-1985 by Lee Burress. Page 68.
- Barnette, 319 U.S. 624 (1943).
- Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
- Bethel School District v. Fraser, 478 U.S. 675 (1986).
- Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) (holding that a school-sponsored student publication was subject to school review and censoring); Bethel v. Fraser, 478 U.S. 675 (1986) (holding that a student who gave a speech filled with sexual innuendos to the student body could be disciplined); and Morse v.
Frederick, 551 U.S. 393 (2007) (a public school district did not violate students’ free speech rights when the students were disciplined for unfurling a banner reading “Bong Hits 4 Jesus” as the Olympic torch passed through town).
- 457 U.S. 853 (1982).
- Id., at 856-857.
- Id., at 858.
- As Justice White concurred as to the result, Pico is not binding. However, circuit courts have continued to follow the reasoning outlined in Pico in considering similar cases.
- Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); see also Kleindienst v. Mandel, 408 U.S. 753, 762-763, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972); Martin v.
Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943) (citation omitted); Lamont v. Postmaster General, 381 U.S. 301, 308, 85 S.Ct. 1493, 1497, 14 L.Ed.2d 398 (1965).
- 457 U.S. 853 at 854.
- Even within the curricular setting, the court has recognized there are limits upon the state: Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (striking down a state law that forbade the teaching of foreign languages in public and private schools); Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) (finding that a state law prohibiting the teaching of evolution in any state-supported school to be unconstitutional).
- Mahanoy Area School District v. B.L, 594 U.S. _ (2021).
- Pico, 457 U.S. at 871.
- See B.H. ex rel. Hawk v. Easton Area School Dist., 725 F.3d 293 (3rd Cir. 2013)(finding that middle school students wearing bracelets bearing the slogan “I ♥Boobies! (Keep A Breast)” was not lewd or vulgar in the middle school setting when considered in context). See also Chandler v. McMinnville School Dist., 978 F.2d 524 (9th Cir. 1992).
- Turkish Coalition of Am., Inc. v. Bruininks, 678 F.3d 617 (10th Cir. 2012).
- 557 F.3d 1177 (11th Cir. 2009).
- Campbell v. St. Tammany Parish School Board, 64 F.3d 184 (5th Cir. 1995) (Relying on the analysis in Pico in holding that the removal of a nonfictional book tracing African tribal religious practices and referencing voodoo was unconstitutional); PFLAG v. Camdenton R-III School District, 853 F.Supp.2d 888 (Mo. W.D. Ct. 2012) (finding that a school internet filter that limited access to sites expressing a positive viewpoint toward LGBT individuals was a violation of student free speech).
- 908 F.Supp. 864 (Dist. Ct. Kan. 1995).
- See alsoMonteiro v. Tempe Union High School Dist., 158 F.3d 1022 (9th Cir. 1998) (stating, “A student’s First Amendment rights are infringed when books that have been determined by the school district to have legitimate educational value are removed from a mandatory reading list because of threats of damages, lawsuits, or other forms of retaliation.”).
- Counts v. Cedarville School District, 295 F. Supp. 2d 996 (W.D. Ark. 2003).
- Id., at 999.
- But see e.g., Griswold v. Driscoll, 616 F.3d 53 (1st Cir. 2010) (stating, “Pico’s rule of decision, however, remains unclear” while still reviewing Pico. Further, Pico was distinguished to the extent that it applied to a curricular choice by the state board of education and was not applicable to the school library setting).
- SeeCampbell v. St. Tammany Parish School Board, supra.
- Monteiro v. Tempe Union High School Dist., supra.
- Pico, 457 U.S. at 853.
Originally published in the Oklahoma Bar Journal – OBJ 93 Vol 7 (September 2022)