Table of Contents Introduction I. Contemporary Developments A. State and Local Regulation B. Incidence of Book Removals and Terminology II. The Legal Basics of Choosing Educational Materials A. Curricular Choices B. Supplementary Classroom Materials and Teachers' Voices C. School Libraries III. The Limited Jurisprudential Guidance for Reviewing Targeted Book Removals A. Legal Doctrine Affecting Targeted Book Removals B. Pico's Precarious Precedential Value C. The Unique Jurisprudence Governing Student Speech Rights 1. Tinker and student speakers 2. School-sponsored speech IV. The Contemporary Landscape: Who Decides A. Democracy in a Microcosm: Elected School Boards B. Politics or Litigation C. Parents' Rights V. Standing and Standards of Review VI. Constitutional Claims A. The Right to Receive Information B. Vagueness and Overbreadth C. Prior Restraint D. Procedural Due Process E. Equal Protection Conclusion
Introduction (1)
"Book bans are unconstitutional censorship," the ACLU of Texas asserted in an Instagram post. (2) The plain text of the Free Speech Clause of the First Amendment might suggest that is the case. If only the law were so simple.
This Essay examines proliferating campaigns to remove books from public school libraries amid heightened cultural and political divisions and the spate of lawsuits filed since 2022 challenging those removals. (3) I analyze the extent to which current constitutional doctrine prohibits book removals that serve an ideological or partisan agenda. As I will show, the legal analysis is often far more complex--and more discouraging to those who value freedom of expression--than the ACLU's post claims. The doctrine is inchoate and confusing. Little appellate guidance exists for trial courts considering challenges to library book removals. The outcome in any particular lawsuit asserting that a book removal is unconstitutional depends in large part on factors such as which of the limited precedents the court follows, the context of the removal itself, the motivation for the removal, and the identity of the challenger.
An advocate for robust student speech rights would hope to find that contemporary constitutional doctrine offers a clear path to challenging the decimation of school library shelves. But the record of the past few decades-- and especially of the last two years--has not been encouraging. The acceleration of successful attacks on school library books takes place in the shadow of a pattern of public schools regularly silencing and punishing constitutionally protected student speech. As I showed in Lessons in Censorship: How Schools and Courts Subvert Students' First Amendment Rights, schools convey to students by their policies and disciplinary actions that the First Amendment is a false promise, (4) a "mere platitude[]," (5) and not a principle that extends to them now or when they become adults. Schools that strip students of the right to speak or to question received wisdom and popular ideology teach the wrong lessons about the very meaning of democracy and citizenship. The same concerns animate my reflections on school library book removals--which teach students that ideas we disagree with should be buried. These are hardly the lessons in liberty school officials should model for their students, whether through their responses to the students' own speech or by removing controversial materials from libraries.
Part I of this Essay lays out the scope of contemporary attacks on books through state and local regulation and the explosion of book removal incidents, and explains why courts reject the notion of "book bans" in school, preferring the term "targeted book removals." Part II places the targeted removal problem in the context of First Amendment jurisprudence governing curricular decisions, the autonomy of teachers to provide supplementary materials, and the function of school libraries. Part III analyzes the appellate jurisprudence governing targeted book removals, including Board of Education v. Pico, (6) the only Supreme Court case that addresses the issue, and the limited guidance provided by the Courts of Appeals. It then sets out and analyzes the unique doctrine governing the speech rights of public school students. Part IV returns to the contemporary landscape, considering the role of elected school boards and explaining how targeted removals became national politics, including through the "parents' rights" movement. It then analyzes the standing of various potential plaintiffs in cases challenging targeted removals. Finally, Part V analyzes the First and Fourteenth Amendment claims available to plaintiffs who challenge targeted removals and describes the class of plaintiffs best positioned to succeed under each claim.
I. Contemporary Developments
Legal disputes over book removals occur in the context of political friction and debate on the issue. In a 2023 video announcing that he would seek reelection, President Biden called "MAGA extremist[]" book banners a threat to democracy. (7) Congressional committees led by both political parties have held hearings on book bans, (8) which have predictably reached diametrically opposed conclusions. Democrats asserted that the challenges to library books stemmed from "moral panic" and violated the First Amendment. (9) In stark contrast, Republicans characterized targeted removals as mere "content moderation" aimed at "pornographic" materials that threatened children's "innocence." (10) The Republican-run Committee majority deemed the books so dangerous that its summary of the hearing included a "Disclaimer" warning: "The following hearing recap contains direct quotations from children's books.... [N]o children should read beyond this point." (11)
A. State and Local Regulation
State and local officials are weighing in, too--mostly on the side of shrinking the marketplace of ideas. Between January 2021 and September 2023, state and local officials "enacted or adopted over 200 ... laws limiting K-12 curricula." (12) Those laws affect more than 22 million children, almost half of the country's public school students. (13)
Legislation in many states, including Florida and Texas, bars schools and individual teachers from addressing or accurately teaching topics that could stir controversy, including race, the history of slavery, gender identity, and gender equity. (14) Some statutes also prohibit the use or discussion of materials containing any sexual content, including scientific information about sex. (15) Definitions of forbidden books are sometimes so broad that they encompass standard dictionaries, which define terms like sexual intercourse. (16) Attacks on books in public school libraries reflect the same concerns and deny students access to those topics at school. (17)
Authorities including local elected school board members and school administrators have increasingly adopted regulations and used their executive powers to limit educators' discretion. (18) Officeholders also use their platforms less formally to diminish the range of materials available to students. For instance, Texas state representative Matt Krause proposed banning approximately 850 books, leading some school districts to pull books from shelves in classrooms and libraries in a frenzy. (19)
B. Incidence of Book Removals and Terminology
Since 2021, the pace at which books have been targeted for removal from libraries and classrooms has accelerated almost too quickly to track. (20) PEN America reported 3,362 documented "book bans" affecting at least 1,557 titles during the 2022-2023 school year--an increase of 33% over the record high reported the previous year. (21) The American Library Association (ALA) similarly sounded alarms about an unparalleled number of challenges to books in public school libraries. (22) In 2022, the ALA documented 1,269 demands to censor library books, nearly double the number of challenges from the previous year and the largest number in the twenty years the organization has tracked such incidents. (23) Both PEN America and the ALA advise that the number of incidents is likely higher than their reports indicate due to underreporting by librarians and limited local news coverage. (24)
Politicians, organizations like PEN America and the ALA, plaintiffs seeking restoration of library books, journalists, and civil libertarians label these incidents "censorship," "book bans," and the like, (25) but I shall use the term "targeted removal." A targeted removal occurs when officials single out one or more volumes for review and removal based on complaints about their content or viewpoint. Regardless of what terminology is used, demands to remove books from the library's existing collection trigger First Amendment alarms because the objections always stem from the books' content or viewpoint. Restrictions on speech based on either its content (that is, its subject matter) or viewpoint (the position a speaker takes with respect to a subject) are presumptively unconstitutional. (26) First Amendment concerns may also be triggered when the process for reviewing or removing the material disregards established neutral procedures. (27)
The term "ban" is particularly provocative in First Amendment parlance because it signals a constrained marketplace of ideas. In schools, a ban could transform students into "closed-circuit recipients of only that which the State chooses to communicate," an outcome once deemed impermissible by the Supreme Court. (28) A ban signals a total prohibition--that is, classic "censorship"--while "targeted removal," though also content-based, indicates a more limited incursion on the ideas in circulation.
In 2009, the Eleventh Circuit critiqued the use of "overwrought rhetoric" and declared that the term "book ban" is only appropriate in limited circumstances, such as when "a government or its officials forbid or prohibit others from having a book." (29) That "pejorative label" is...
