By Ian McDonald | Articles Editor

November 29, 2023

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Introduction

            There has been an “unprecedented uptick” in book challenges.^[1] There are some similarities between this moral panic and those that have preceded it, specifically the focus on protecting children.^[2] This time, however, the challenges target LGBTQ-authored or LGBTQ-centric books.^[3] While these challenges are justified by smearing the materials as obscene or inappropriate, the claim is often entirely without merit.^[4] Instead, the differential treatment against materials with a pro-LGBTQ lean constitutes a viewpoint-based regulation on speech, prohibited by the First Amendment.^[5]

            Public school libraries have been one of the primary locations for this battle.^[6] The unique nature of public school libraries has left the question of when a book is protected by the First Amendment murky. When analyzing the removal of books from public school libraries, there are at least three parties with implicated legal interests: parents, schools, and students.

1. Parents

            Parents have an interest in how they raise their kids. The Supreme Court has long recognized that the Fourteenth Amendment’s Due Process Clause protects parents’ right to “establish a home and bring up children.”^[7] However, this right is not absolute^[8]—particularly with regards to public school curriculum.^[9] Most relevant here, a parent’s right to control their child’s upbringing does not “encompass[] a fundamental constitutional right to dictate the curriculum at the public school to which they have chosen to send their children.”^[10] Parents cannot be forced to send their children to a state-sponsored school.^[11] Once enrolled, though, a parents interest in directing their child’s education does not supersede the government’s interest in controlling curriculum.^[12]

1. Schools

            The government, through school boards, has an interest in “inculcating fundamental values necessary to the maintenance of a democratic political system.”^[13] As “a principal instrument in awakening the child to cultural values,”^[14] the Supreme Court has granted school administrators broad discretion over curriculum and curricular activities.^[15] Curricular expressive activity may be restricted so long as the restriction is reasonably related to legitimate pedagogical concerns.^[16] In this context, curricular activities are activities: (1) “supervised by faculty members”; (2) “designed to impart particular knowledge or skills to student participants and audiences”; and that (3) “might reasonably [be] perceive[d] to bear the imprimatur of the school.”^[17] However, the discretion is limited when analyzing speech rights in a non-curricular context.^[18]

1. Students

            It is well established that students do not “shed their constitutional rights . . . at the schoolhouse gate.”^[19] Even so, those rights must be evaluated in the unique context of the school environment.^[20] Under Tinker, students are free to exercise their First Amendment rights so long as that exercise does not “materially and substantially interfere” with the “work of the school.”^[21] Restrictions on non-curricular student speech are evaluated under this more speech-permissive test.

            In summary: when material is properly considered curricular, the school may restrict students’ First Amendment rights when the restriction is reasonably related to legitimate pedagogical concerns. On the other hand, the First Amendment rights of students in non-curricular environments can be curtailed only if the speech would “materially and substantially interfere” with the “work of the school.”^[22]

1. First Amendment Rights in the Context of Public School Libraries

            If, under the conditions outlined above, students retain First Amendment rights while at school, the question becomes this: does the First Amendment offer any protection for books in a public school library? The Supreme Court has never coherently answered this question.^[23] The lone opinion on point features seven opinions (a plurality, two concurrences, and four dissents).^[24] There was broad agreement, however, that it would be improper for a school board to remove books from a public school library for discriminatory reasons.^[25] Further, the principle that the First Amendment prohibits the removal of books from a public school library for discriminatory purposes tracks with Supreme Court jurisprudence on public forums and government speech. 

            First Amendment rights on government property implicates the public forum doctrine. Broadly speaking, the public forum doctrine describes types of public property and the varying levels of government power to regulate private speech rights on each type.^[26] The Supreme Court has never clarified how to categorize a public school library.^[27] Regardless, even at its most restrictive, the public forum doctrine does not allow viewpoint-based discrimination.^[28]

            Additionally, an “important interplay exists” between the public forum doctrine and the government speech doctrine.^[29] Under this doctrine, the “government may engage in viewpoint discrimination in choosing what positions to favor . . . in the exercise of its own speech.”^[30] Thus, government speech is immune from challenge under the First Amendment.^[31] In the context of schools, curricular material covered by Hazelwood is analogous to government speech.^[32] The government retains broad, even discriminatory, discretion.^[33] Non-curricular speech, then, is covered by the public forum doctrine—and the accompanying prohibition on viewpoint-based discrimination.^[34]

            Accordingly, public school administrators should tread lightly around removing LGBTQ-centric materials from libraries. While school administrators may remove materials under certain conditions, a pro-LGBTQ message is not a permissible reason for removal. Rather, removing pro-LGBTQ material over disagreement with the message is prohibited viewpoint discrimination.

 

^[1] Susanna Granieri, An Unprecedented Uptick in Book Bans Brings First Amendment Scrutiny, First Amendment Watch (Sept. 14, 2022), https://firstamendmentwatch.org/an-unprecedented-uptick-in-book-bans-brings-first-amendment-scrutiny. See also Toby Chavez, As LGBTQ book challenges rise, some Louisiana librarians are scared to go to work, PBS (Feb. 27, 2023), https://www.pbs.org/newshour/nation/as-lgbtq-book-challenges-rise-some-louisiana-librarians-are-scared-to-go-to-work.

^[2] See, e.g., Jeremy C. Young & Jonathan Friedman, Opinion, Today’s book bans echo a panic against comic books in the 1950s, Washington Post (Oct. 17, 2022), https://www.washingtonpost.com/made-by-history/2022/10/17/book-ban-comic-books-panic/ (comparing today’s book bans to the 1950s panic against comic books).

^[3] See, e.g., Scott McFetridge et al., School library book bans are seen as targeting LGBTQ content, AP NEWS (Mar. 20, 2023), https://apnews.com/article/lgbtq-book-bans-91b2d4c086eb082cbecfdda2800ef29a (discussing how school library book bans are targeting LGBTQ content); Sabrina Baêta, Frequently Banned Books Featuring Transgender Stories, PEN (Mar. 30, 2023), https://pen.org/banned-books-transgender-stories (noting that stories featuring transgender individuals and characters make up roughly 9% of banned books, despite their underrepresentation); Chavez, supra note 1 (“The majority of the book challenges across Louisiana last year focused on titles for children and young adults with LGBTQ themes.”).

^[4] For example, the children’s book And Tango Makes Three—a heartwarming tale based on a true story about two male penguins hatching and nurturing a chick of their own—has been, and remains, one of the most challenged titles. See Barbara Jones, And Tango Makes Three waddles its way back to the number one slot as America’s most frequently challenged book, American Library Association (Apr. 11, 2011), https://www.ala.org/news/press-releases/2011/04/and-tango-makes-three-waddles-its-way-back-number-one-slot-america’s-most (noting how Tango was the fourth-most frequently challenged book of the 2000’s and the sixth-most challenged book of the 2010’s). See also Brooke Leigh Howard, Florida School District Bans a Book on . . . Penguins, Daily Beast (Feb. 22, 2023), https://www.thedailybeast.com/and-tango-makes-three-florida-school-district-bans-a-book-on-penguins; Donald Padgett, Florida School District Bans Book on Penguin Couple, Advocate (Jan. 10, 2023) https://www.advocate.com/news/2023/1/10/florida-school-district-bans-book-penguin-couple-dont-say-gay.

^[5] See Elizabeth M. Glazer, When Obscenity Discriminates, 102 Nw. U.L.Rev. 1379, 1426–27 (arguing that, in light of Lawrence v. Texas, 539 U.S. 558 (2003), “homosexuality [was] transform[ed], for First Amendment purposes, from subject matter to viewpoint.”); See also Rosenberger v. Rectors and Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995) (“When the government targets . . . particular views . . . , the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”) (internal citations omitted).

^[6] Am. Libr. Ass’n, The State of America’s Libraries 2 (2022) (noting that 44% of challenges are to books in school libraries).

^[7] Meyer v. Nebraska, 262 U.S. 390, 399 (1923). See also, e.g., Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925) (striking down a state law on the basis that it “unreasonably interfere[d] with the liberty of parents . . . to direct the upbringing and education of children under their control”); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“[T]he custody, care and nurture of the child reside first in the parents.”).

^[8] See, e.g., Runyon v. McCrary, 427 U.S. 160, 177 (1976) (holding that a parent’s right to control their child’s education did not include having your child educated in a private racially segregated school); Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 291 (5th Cir. 2001) (discussing other cases that have limited parental oversight); Murphy v. State of Arkansas, 852 F.2d 1039 (8th Cir. 1988) (hold that homeschooled children may be subjected to standardized tests, even over parental objection).

^[9] Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 699 (10th Cir. 1998) (“Parents simply do not have a constitutional right to control each and every aspect of their children’s education and oust the state’s authority over that subject.”).

^[10] Brown v. Hot, Sexy, and Safer Productions, Inc., 68 F.3d 525, 533 (1st Cir. 1995). Here, the 1st Circuit rejected this interpretation, holding that “the rights of parents as described by Meyer and Pierce do not encompass a broad-based right to restrict the flow of information in the public schools.” Id. at 534. Otherwise, “schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school’s choice of subject matter.” Id.

^[11] Wisconsin v. Yoder, 406 U.S. 205, 235–36 (1972).

^[12] See, e.g., Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1207 (9th Cir. 2005) (concluding that the parents’ right to control a child’s education “does not extend beyond the threshold of the school door”); Blau v. Fort Thomas Public Sch. Dist., 401 F.3d 381, 395 (6th Cir. 2005) (“[P]arents may have a fundamental right to decide whether to send their child to public school, they do not have a fundamental right to direct how a public school teaches their child.”) (emphasis omitted).

^[13] Ambach v. Norwick, 441 U.S. 68, 76–77 (1979).

^[14] Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).

^[15] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988).

^[16] Id. at 273.

^[17] Id. at 271.

^[18] Id.

^[19] Tinker v. Des Moines Indep. City Sch. Dist., 393 U.S. 503, 506 (1969). See also West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (holding that school boards must perform their “important, delicate, and highly discretionary functions . . . within the limits of the Bill of Rights”).

^[20] Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 682 (1986) (citing New Jersey v. T.L.O., 469 U.S. 325, 340–42 (1985)); see also Thomas v. Board of Education, Granville Central Sch. Dist., 607 F.2d 1043, 1057 (CA2 1979) (Newman, J., concurring) (“[T]he First Amendment gives a high school student the classroom right to wear Tinker’s armband, but not Cohen’s jacket.”).

^[21] Tinker, 393 U.S. at 509

^[22] Id.

^[23] See generally Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982).

^[24] See id. at 855–75 (Brennan, J., plurality); id. at 875–82 (Blackmun, J., concurring); id. at 883–84 (White, J., concurring); id. at 885–93 (Burger, C.J., dissenting); id. at 893–903 (Powell, J., dissenting); id. at 904–20 (Rehnquist, J., dissenting); id. at 921 (O’Connor, J., dissenting). Brennan based his plurality opinion on the students’ right to receive information under the First Amendment. Blackmun concurred in judgment but based his analysis on the First Amendment’s prohibition on viewpoint-based discrimination.

^[25] Id. at 870–72 (Brennan, J., plurality) (“[S]chool boards may not remove books . . . simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox . . . .”) (internal citations omitted); id. at 879 (Blackmun, J., concurring) (“[T[he State may not act to deny access to an idea simply because state officials disapprove of that idea for partisan or political reasons.”); id. at 883 (White, J., concurring) (concurring with the judgment on the basis that summary judgment was precluded due to an unresolved material issue of fact. That unresolved material issue of fact, “as [White] underst[oo]d it” was the reason or reasons underlying the book’s removal. By concurring, White’s opinion is best understood as an agreement, however tacit, that school boards exceed their discretion when they remove materials for discriminatory reasons); id. at 907 (Rehnquist, J., dissenting) (“cheerfully conced[ing]” that it would be improper for a school board, motivated by racial animus, to remove all books by Black authors).

^[26] See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45–46 (1983). There is a significant amount of confusion over the contours of these categories. See generally, Marc Rohr, First Amendment Fora Revisited: How Many Categories Are There?, 41 Nova L. Rev. 221 (2017) (discussing uncertainty surrounding the public forum doctrine; analyzing the different, often overlapping, ways the Supreme Court and lower courts have defined and applied the public forum categories, and; questioning the usefulness of the doctrine).

^[27] In U.S. v. American Library Ass’n, Inc., a plurality of the Court categorized (non-school) public libraries as a non-public forum for the purposes of evaluating an Internet filter. U.S. v. American Library Ass’n, Inc., 539 U.S. 194, 204–07 (2003). However, that case centered on adding material to the library. This distinction is crucial under the public forum doctrine. Once the government opens a nonpublic forum to certain categories of speech, it cannot discriminate within that category based on viewpoint.

^[28] See Perry, 460 U.S. at 46; Rosenberger, 515 U.S. at 829. See also Pico, 457 U.S at 881 (Blackmun, J., concurring) (“While the State may act as ‘property owner’ when it prevents certain types of expressive activity from taking place on public lands, . . . few would suggest that the State may base such restrictions on the content of the speaker’s message, or may take its action for the purpose of suppressing access to the ideas involved.”) (citing Police Dept. of Chicago v. Mosley, 408 U.S. at 96) (internal citation omitted).

^[29] Rodney A. Smolla, 1 Smolla & Nimmer on Freedom of Speech § 8:1:50 (2022).

^[30] Id. See also Rust v. Sullivan, 500 U.S. 173, 193 (1991).

^[31] See Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009).

^[32] See Pico, 457 U.S. at 908–09 (Rehnquist, J., dissenting) (noting the special role of the government when acting as educator); id. at 921 (O’Connor, J., dissenting); Ronna Greff Schneider, 1 Education Law §2.8 Curriculum (2022) (“The school’s curriculum may be viewed as the speech of the school itself.”).

^[33] See, e.g., Busch v. Marple Newtown Sch. Dist., 567 F.3d 89, 97 (3d Cir. 2009), cert. denied, 130 S. Ct. 1137 (2010) (upholding school’s ability to limit parental speech, when that parent is participating in curricular activities); Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794, 795 (5th Cir. 1989) (“[T]he [F]irst [A]mendment has never required school districts to abdicate control over public school curricula to the unfettered discretion of individual teachers.”); Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 624 F.3d 332 (6th Cir. 2010), cert. denied, 131 S. Ct. 3068 (2011) (“A teacher’s curricular and pedagogical choices are categorically unprotected, whether under Connick or Garcetti.”). But see Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021) (concluding that a university could not, under the First Amendment, terminate a professor who insisted on misgendering their students in class. The court held that, while the professor had made statements pursuant to their official duties, Garcetti did not apply because of an academic exception to the public employee speech doctrine. Further, the court held that the mandatory use of preferred pronouns in the classroom was a matter of public concern under the Pickering-Connick test. Because of this, and the importance of academic freedom in a state university, the court held that the professor’s speech was protected)

^[34] See Brown v. Bd. of Regents of Univ. of Neb., 640 F. Supp. 674 (D. Neb. 1986) (holding that the university’s decision to cancel the viewing of a controversial movie was a non-curricular decision and therefore must be viewpoint neutral)