The Volokh Conspiracy
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Removal of Books With "Lascivious Content" from School Libraries Likely Constitutionally Permissible
So holds a federal district court, also stressing that "this case does not involve banning books": "A school district does not 'ban' a book when ... it 'decides not to continue possessing [a] book on its own library shelves.'"
From C.K.-W. v. Wentzville R-IV School Dist., decided Friday by Judge Matthew Schelp (E.D. Mo.); assuming the facts are as described, the decision seems legally correct to me as to K-12 public school libraries (though the analysis would be quite different as to removals of speakers from government property that the government has opened up as a limited public forum for private speech):
Plaintiffs seek to enjoin Defendant, the Wentzville R-IV School District, from following its policy that allows parents, guardians, and students to initiate challenges to library materials, and Plaintiffs also ask the Court to require the District to restore access to any books it has removed from school libraries during the most recent school year…. Plaintiffs have failed to show that the relevant factors weigh in favor of a preliminary injunction in this case ….
Plaintiffs' characterization of this case {referencing the "Banned Books" in this case no fewer than thirty-five times} makes it important at the outset for the Court to clarify something: this case does not involve banning books. The District has not banned the books at issue here, and, despite repeatedly calling this a case on book bans, Plaintiffs make no factual allegations about anyone banning any books. Nowhere do Plaintiffs allege that the District has prohibited anyone from reading, owning, possessing, or discussing any book. Rather, through a policy enacted by its elected school board, the District allows librarians to use their best judgment to remove books in select scenarios, and, through another policy, the District temporarily has removed a limited number of other books while it determines their propriety for inclusion in the District's libraries.
The District's policy does not ban the District's students from reading the books at issue here. Nor does it ban students from acquiring the books or lending the books to others. Students may borrow the books from the public library or from a friend or neighbor. They likewise are free to purchase the books. The policy does not even ban students from bringing the books at issue to the District's schools. Nor does it ban students from discussing the books at school during their free time or encouraging others to read them…. [T]he "overwrought rhetoric about book banning has no place" in this case. Cf. Bd. of Educ. v. Pico (1982) (principal case on which Plaintiffs rely that, despite similar facts, does not use the word ban or any similar language to describe the board's actions). A school district does not "ban" a book when, "through its authorized school board," it "decides not to continue possessing [a] book on its own library shelves."
Having discussed what the policies at issue here do not do, the Court now examines how the policies here actually operate. Two policies of the District, enacted by its elected school board, are chiefly at issue in this case. Board Regulation 6310 … provides that "access to library/media materials will be based upon the contribution to the education program and the age appropriateness of the materials." It allows librarians in the District to withdraw and discard materials that are "soiled, damaged, or torn beyond repair," materials that "exceed[ ] age sensitivity," and materials that "contain unreliable information."
Another Board Regulation provides an alternative avenue by which materials can be removed from District libraries. Board Regulation 6241 … recognizes that "honest differences of opinion may arise about books or materials used in public schools." To that end, 6241 provides a process for the "impartial and orderly" evaluation of complaints the District receives to a specific book or other "material." After a principal receives a complaint, 6241 provides that the book will be "removed from use, pending committee study and final action by the Board of Education, unless the material questioned is a basic text." Within fifteen days of receiving the complaint, the Superintendent of Schools appoints a nine-person "review committee" that must consist of an administrator of the building involved, three teachers, a member of the Board of Education, and four "lay persons."
Within twenty days of the appointment of the review committee, 6241 provides the committee must meet, review the written request for reconsideration, read the questioned materials, evaluate, and prepare a written report of its findings and recommendations to the Superintendent of Schools wherein the committee may recommend the material be retained "without restriction," retained "with restriction" or not retained. At the next meeting of the locally elected, publicly accountable Board of Education, the Superintendent will report the committee's recommendation to the Board, which then makes the "final" decision on whether to retain the material. The principal of the school will then "see that the decision of the Board is carried out."
The court focused on three books that were "indefinitely removed from the District's libraries," which were Fun Home, All Boys Aren't Blue, and Heavy. (It also discussed five other books which were restored or were still under review or were otherwise not indefinitely removed, but I omit that for space reason.) Here is what the court said about those three books, and about the legal issue more generally:
Plaintiffs allege that the removal of books from the District's libraries is "part of a targeted campaign" by two private groups "to remove particular ideas and viewpoints about race and sexuality from school libraries," and that the District's "failure to use established, regular, and facially unbiased procedures for the removal of books" and its "policy of removing materials immediately upon challenge demonstrates that the [materials] have been removed on an arbitrary basis and not in a viewpoint-neutral manner," Plaintiffs assert that the District removed the books "with the intent and purpose of preventing all students from accessing" them, and they allege the "decisive factor" in the decision to remove the books was a "dislike of the ideas or opinions contained in the books by policymakers, school officials, community members, or a combination of those."
They contend the policies themselves and the removal of the books at issue violate the First Amendment rights of students "by restricting their access to ideas and information for an improper purpose." Plaintiffs seek to enjoin Defendant, the Wentzville R-IV School District, from following its policy that allows parents, guardians, and students to initiate challenges to library materials and require the District to restore access to any books it has removed from school libraries during the most recent school year….
Plaintiffs rely heavily on the plurality opinion of Justice Brennan in Board of Ed. v. Pico, a case that sharply divided the Supreme Court and that produced seven opinions, none of which garnered a majority. Justice Brennan's plurality opinion, "a lavish expansion going beyond any prior holding under the First Amendment, expresse[d] its view that a school board's decision concerning what books are to be in the school library is subject to federal-court review." (Burger, C.J., dissenting, joined by Powell, Rehnquist, and O'Connor, JJ.). Justice Brennan's plurality opinion in Pico, however, is not binding [precisely because it wasn't a majority opinion—ed.]
Indeed, it is not clear what, if anything, from Pico is binding on the case here. See Griswold v. Driscoll (1st Cir. 2010) (Souter, J.) (describing Pico's "rule of decision" as "unclear"). To determine what is binding from Pico, it is necessary to determine the "position taken by those Members who concurred in the judgments on the narrowest grounds." Justice White's opinion therefore controls. See also Griswold (explaining "Justice White concurred in [Pico's] judgment without announcing any position on the substantive First Amendment claim"); Muir v. Ala. Educ. Television Comm'n (5th Cir. 1982) (en banc) (finding Justice White's opinion had the narrowest grounds for the judgment and therefore concluding the Court did not decide the "extent" or even the "existence" of "First Amendment implications in a school book removal case").
Justice White affirmed the judgment below because he was "not inclined to disagree with the Court of Appeals" that a material issue of fact precluded summary judgment. That material issue of fact was "the reason or reasons underlying the school board's removal of the books." He wrote that while the Justice Brennan plurality "seem[ed] compelled" to "issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library," he would not reach that constitutional question until it was "necessary to do so." At most, Justice White's concurrent position suggests it is conceivable that the First Amendment imposed some degree of limitations upon the discretion of the removal of books from a public-school library. That conclusion, however, is hardly earth shattering. See Pico (Rehnquist, J., dissenting, joined by Burger, C.J., and Powell, J.) ("cheerfully conced[ing]" that some "extreme examples" would violate the Constitution, like, for instance, where a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans).
Shortly before the Supreme Court issued its judgment in Pico, the Court of Appeals for the Eighth Circuit decided Pratt v. Independent Sch. Dist. No. 831 (8th Cir. 1982) (Heaney, J.), wherein it held that a school board could not constitutionally ban films from its curriculum because "a majority of its members object to the films' religious and ideological content and wish to prevent the ideas contained in the material from being expressed in the school." This conclusion that it violates the First Amendment if a school board removes materials because they disagree with them is in tune with Justice Brennan's plurality opinion in Pico. {[But t]he Pratt decision, at best, has limited utility to this case. Even the Justices voting in the majority in Pico rejected the idea central to Pratt, that a federal court could review and countermand the curriculum decisions of local school authorities. The Pratt decision has not aged well in the forty years of First Amendment jurisprudence since its issuance. See, e.g., Hazelwood Sch. Dist. v. Kuhlmeier (1988), rev'g, (8th Cir. 1986) (Heaney, J.); see also, e.g., Griswold v. Driscoll (1st Cir. 2010) (Souter, J.) (explaining that there was "no denying that the State Board of Education may properly exercise curricular discretion" without implicating the First Amendment "even if" changes to curriculum were "made in response to political pressure"); Chiras v. Miller (5th Cir. 2005); Boring v. Buncombe Cnty. Bd. of Educ. (4th Cir. 1998) (en banc) ("we are of opinion that plaintiff had no First Amendment right to insist on the makeup of the curriculum").} At this stage of the litigation, the Court will proceed under Justice Brennan's approach, the most expansive view of the purported right at play—even though the Court has serious reservations on the propriety of that approach.
Even using this most expansive view of the purported right at play, this First Amendment right to receive ideas, Plaintiffs here have a narrow path. The Pico plurality recognized local school boards have "a substantial legitimate role to play in the determination of school library content" and that districts have "significant discretion" to determine the books available in school libraries. The discretion, though, "may not be exercised in a narrowly partisan or political manner." The central issue, according to the plurality, was the "motivation behind" the action. Only if the officials "intended by their removal decision to deny [students] access to ideas with which [the officials] disagreed, and if this intent was the decisive factor in [their] decision" does the removal violate the First Amendment.
This mens rea requirement necessarily means schools may remove books for numerous reasons. Indeed, if an intent to deny must be the decisive factor, schools may even remove books partly because they intend to deny students access to ideas with which they disagree. The Pico plurality specifically pointed to two plainly proper reasons for removing books. It explained that school officials certainly may remove books based on the books' "educational suitability" or if the books are "pervasively vulgar." …
[T]he entire Pico Court was unanimous in its explicit conclusion that schools can remove books based on their vulgarity. See Bethel Sch. Dist. No. 403 v. Fraser (1986) (noting that, although the Court was "sharply divided" in Pico, all Members of the Court "acknowledged that [a] school board has the authority to remove books that are vulgar"). No one seriously could dispute that a school may seek to keep vulgar materials away from its students. Likewise, it is "perfectly permissible" for a school to remove a book based upon the book's "educational suitability." A book's vulgarity and its educational suitability surely are at the heart of the determination of the "age sensitivity" consideration, which 6310 allows District librarians to make to remove a book.
Plaintiffs, apparently, would have this single federal judge evaluate whether the books are educationally suitable or sufficiently vulgar to remove, never mind the fact that the school librarians—whose expertise on this matter outpaces this Court's and who are accountable to the locally elected school board—concluded they should be removed. Perhaps one could think of extreme hypotheticals where a district's claimed assertion of a book's vulgarity was plainly a pretense, where every reasonable person would conclude that a book was not vulgar and was age appropriate. But, here, it is quite easy to see why a librarian would conclude the three books at issue should be removed based on age sensitivity given each has lascivious content.
Fun Home, for example, has entire illustrated pages showing characters engaging in oral sex along with accompanying ribald language. "He reached his hand down and pulled out my dick. He quickly went to giving me head….[W]e dry humped and grinded….I put some lube on and got him up on his knees, and I began to slide into him from behind….I eased in, slowly, until I heard him moan….I finally came and let out a loud moan—to the point where he asked me to quiet down for the neighbors. I pulled out of him and kissed him while he masturbated. Then, he also came." All Boys Aren't Blue details another encounter. "[H]e told me to lie down on the bed. He asked me to 'turn over' while he slipped a condom on himself….[T]his was my ass, and I was struggling to imagine someone inside me. And he was…large. But I was gonna try.
In keeping with the pattern, Heavy: An American Memoir likewise has detailed accounts of sexual encounters. The book does not attempt to hide its contents. As the back cover explains, the book discusses the author's "complex relationship with his family, weight, sex, gambling and writing." The author writes that "Renata pulled up her shirt, unhooked her bra, and filled my mouth with her left breast….Choking on Renata's breasts made me feel lighter than I'd ever felt. After a few minutes, Renata grabbed my penis and kept saying, 'Keep it straight, Kie. Can you keep it straight?'" And elsewhere, "I got close enough to the door to see Delaney was standing in the middle of the room with his soggy maroon swim trunks around his calves. Dougie was on his knees in front of Delaney with his hands behind his back. His tongue was out, licking the tip of Delaney's penis."
Could a librarian or, ultimately, a school board official conclude that these books were age suitable for some older students and that the books merited inclusion based on their content overall? Sure. But can this Court conclude that the librarian's determination that these books were not age appropriate was a pretense, absent some actual evidence, and that the real decisive reason for the removal was to deny access to students of certain ideas? Not at all.
But Plaintiffs make the sweeping and, frankly, disconcerting request to have this Court require that the District "restore access" to these three books and "any books that were removed from school libraries during this school year and for which access has not been restored." Meaning Plaintiffs would have this Court force the District to provide access to these, or any other books, that the District's librarians concluded were appropriate for removal no matter the reason. Even if one of these books, or another that was even more sexually explicit, had been available to a library that served third graders, either inadvertently or because the librarian was unaware of the content, Plaintiffs would have this Court order the District to return the book for the third graders to read.
Plaintiffs also have failed to show they have a fair chance of success on their argument that 6241 itself is constitutionally infirm. Schools may remove books from their libraries for a multitude of reasons. It necessarily follows, then, that schools may have policies that allow for the removal of books and policies on determining whether and when books should be removed. Their decisions on how and when to remove books is entitled to substantial deference. See The idea that the District's policy set out in 6241—the policy to temporarily remove a book upon receipt of a complaint until the District determines whether to retain the book—is somehow unconstitutional is not consistent with Pico.
The Pico plurality recognized an amorphous, but circumscribed, right to receive information in a school setting, but it tied the scope of the right exclusively to the conduct of the school officials. School officials cannot remove materials if the decisive factor for the removal was to deny students access to ideas. A policy that requires the temporary removal of any material anytime the District receives a complaint (which people of any race, religion, gender, sexual orientation, and political or world view may file) necessarily would not impute a motive on the District. When the District temporarily removes all complained-of books, and does so evenhandedly, it necessarily cannot be removing them with the intent to deny students access to ideas with which the District disagrees.
Plaintiffs offer two theories on how the policy is unconstitutional. They argue it creates "an official heckler's veto" and that it amounts to an "unconstitutional prior restraint." Both arguments miss the mark. Both a heckler's veto and a prior restraint involve the freedom of speech and expression, not the right of access to particular ideas. Neither concept translates well from the freedom of speech and expression arena to this right of access to particular ideas.
A heckler's veto is the "government's restriction or curtailment of a speaker's right to freedom of speech when necessary to prevent possibly violent reactions from listeners." Plainly, that is not what is happening here. This is the case of the government (in the form of a school district) temporarily removing access to particular materials to determine whether they are appropriate for children. In doing this, it is not banning protected speech. And no one argues it removed these books because it feared they would provoke a violent response. This is not a case of a heckler's veto.
Nor is the District's policy an unconstitutional prior restraint. "The term prior restraint is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Once again, that plainly is not this policy. This policy does not prohibit communications. True, at issue here is the First Amendment, which provides for the freedom of speech. But at issue here is the amorphous right of students to receive information, which has been synthesized from the First Amendment as an "inherent corollary of the rights of free speech and press." Here, the District is not forbidding anyone from any speech, and Plaintiffs provide no precedent or coherent argument why a prior restraint—and a temporary one, at that—on a student's right to access information in the form a particular book or material would violate the First Amendment. And even if this policy were a prior restraint, Plaintiffs have not demonstrated why it would be unconstitutional, as prior restraints on speech are not always unconstitutional in a public school setting.
Plaintiffs have failed to show they have even a fair chance of succeeding in this case on the merits.
For more on Bd. of Educ. v. Pico, see here and here. Congratulations to J. Drew Marriott and Matt Wilson (EdCounsel LLC), who represented the school district.
