The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Orange County School Board Chair Teresa Jacobs [had] police officers remove Jacob Engels, a speaker during the public comment portion of the meeting, after Engels began reading from a book titled "Gender Queer: A Memoir."
The book, which was found in an Orange County Public Schools high school library, is a graphic novel that contains detailed and graphic depictions of sex acts.
The removal was triggered by the reference to "a new strap-on harness," which will "fit my favorite dildo perfectly"; the chair responded that "the language he just read is inappropriate for this forum," and added that "This is the first time I've heard of this and the board has heard of this. We will look into it, and I do hope the book is removed. OK? And if not, we'll be back here having this conversation again, but I can guarantee you, I did not know that book was in the library." (The OrangeObserver story reports that OCPS did indeed remove the book from the libraries.)
A few thoughts about the legal issue:
[1.] Generally speaking, government bodies that open up time for public comment are seen as creating a limited public forum, where some content-based restrictions are permissible but only if they are viewpoint-neutral and reasonable. It's not clear to me that the board has indeed announced any restrictions on such language (the general rules seem to be here, and they don't forbid discussions of sex), but perhaps I'm missing some such policy.
[2.] A school may exclude books based on their sexual content without violating the First Amendment (even if they don't fit within the First Amendment obscenity exception), though the Court split 4-4 on the separate question whether a school may exclude books based on ideological viewpoint. (See Board of Ed. v. Pico (1982); Justice White's concurring opinion broke the tie on the bottom line question—should the case proceed to further fact-finding—but Justice White expressly refused to express an opinion on the underlying First Amendment issue.)
I saw some talk about the incident online (e.g., here) that struck me as not quite right, so I thought I'd lay things out in some more detail.
To get the Volokh Conspiracy Daily e-mail, please sign up here.