Book Bans in Schools and How They Can Violate the First Amendment’s Right of Free Speech

Issues related to the contents of school libraries and the reading materials in school curricula have been in the news a lot lately. School authorities have considerable discretion in the books they include and which ones they exclude, but that power is not unlimited. It’s possible for school authorities’ choices to cross constitutional limits and represent violations of the First Amendment’s guarantee of freedom of speech. Free speech cases, like many types of civil cases, can be complex matters requiring detailed knowledge of the law, which is why retaining a knowledgeable Atlanta First Amendment lawyer in your matter is crucial.

One of the most controversial examples occurred to our north in rural Tennessee, where a county school board voted unanimously to remove the book “Maus” by Art Seligman. The Pulitzer Prize-winning book followed the author’s parents through their time in the Auschwitz internment camp. The school board objected to the book’s depictions of suicide, the use of swear words, and an image of nudity as age-inappropriate for eighth-graders.

In Pensacola, Florida, a publisher and some parents used civil litigation to fight back against these sorts of bans. Penguin Random House, several parents, and a free speech nonprofit sued the Escambia County Schools for violating the First Amendment. The lawsuit alleged that school authorities disproportionately used their powers to target works that contained LGBTQ+ issues or dealt with race discrimination.

Nationwide, half of the 10 “most challenged books of 2021,” according to the American Library Association, had LGBTQ+ content.

The U.S. Supreme Court’s 1982 Ruling on School Book Bans

The U.S. Supreme Court has addressed this topic and provided some guidance, though that guidance is limited.

In 1975, after a Long Island (NY) school district temporarily removed nearly a dozen books from its libraries, five students sued. The Supreme Court ultimately ruled against the school district. The court’s opinion said that, while “local school boards have broad discretion in the management of school affairs,” and can ban books due to “due to pedagogical, educational suitability, and vulgarity reasons,” they cannot exercise that discretion in a way that does not comport with “the transcendent imperatives of the First Amendment.”

The court also said that a student’s “right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom” and that “local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books.”

Free Speech Rights and Title IX Rights

Recently, opponents of these bans have begun pursuing a new approach. While these challenges historically rested on First Amendment grounds, the ACLU of Texas undertook two challenges late last year on the basis that a Texas school district’s decisions violated Title IX. The complaints, filed with the U.S. Department of Education, argued that nearly 3/4 of the books banned involved LGBTQ+ characters or issues, thus demonstrating that the bans represented impermissible discrimination based on gender identity and/or sexual orientation.

In March, President Biden issued an executive order stating that, in accordance with Title IX, all students must receive an education “free from discrimination on the basis of sex, including… discrimination on the basis of sexual orientation or gender identity.”

First Amendment cases can be especially challenging. If you have a potential First Amendment case, you need the right legal team with the skills and experience necessary for success. The knowledgeable Atlanta First Amendment attorneys at the law firm of Parks, Chesin & Walbert are equipped to give you the powerful representation you need. Contact us through this website or at 404-873-8048 to schedule a consultation today.

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