How Would This Supreme Court Rule on Book Banning?

How Would This Supreme Court Rule on Book Banning?

Last Thursday, Penguin Random House, along with a group of writers, educators, and parents in Iowa, joined the front ranks of the high-stakes election-year issue of book banning. They filed suit in federal court against the state’s school administrators, including the president of the state’s Board of Education, to stop the enforcement of a law known as Senate File 496, which the governor, Kim Reynolds, signed into force in May. The law requires that public-school libraries and classrooms contain only “age-appropriate” books, which it defines to automatically exclude books that have a description of a sex act. The law also prohibits instruction that deals with “gender identity” and “sexual orientation,” which the plaintiffs allege includes books. Local school-district boards are responsible for identifying which books violate the law; one has a list of about sixty that must be taken off the shelves—from an initial list of four hundred, which was trimmed after an outcry from the community. Any school employees who violate the law are subject to increasing disciplinary measures—for teachers, that could mean having their teaching license revoked.

The lawsuit notes that the language of the statute is so broad—does even a mention of sex qualify as a violation?—that it has caused confusion and alarm among teachers and librarians, who fear being fired if they fail to comply. As a result, they have been erring on the side of removing books, rather than on the side of providing access to information. There are no provisions for considering the literary, artistic, or educational merit of the work as a whole, and titles removed by some districts so far include classics by Toni Morrison, Alice Walker, William Faulkner, Margaret Atwood, and Richard Wright. The complaint cites a question raised by the Iowa Association of School Librarians: If the ban covers classic literature that is part of the Advanced Placement curriculum, how will the state handle the issue of students being unable to read the books that are the subject of A.P. tests? It goes on to ruefully note that, as the age of consent is sixteen in Iowa, high schoolers can lawfully have sex, but not read about it in their school library.

The Iowa law, of course, is just one of a series of recently passed state laws that seek to ban books, or to limit students’ access to information about sex, sexual identity and orientation, and issues of race in American history. Texas, Florida, Missouri, Utah, Arkansas, and South Carolina have all passed laws restricting public-school students’ access to books. The Arkansas version imposes penalties of up to a year in jail for librarians and booksellers who provide material considered “harmful to minors.” Texas House Bill 900 requires publishers to “rate” books based on their sexual content, and prohibits any “sexually explicit” books from appearing in school libraries. Plaintiffs including the American Booksellers Association and the Authors Guild filed suit to declare the Texas law unconstitutional, and won an initial victory when a federal district-court judge stopped its enforcement, but the famously conservative Fifth Circuit recently heard oral arguments in an appeal of that ruling. Opponents of bans are not optimistic about the outcome.

All this raises the question of what the current Supreme Court would do if it were to decide to take up one of the simmering book-ban cases. The key precedent on the issue is Island Trees School District v. Pico, from 1982. That case arose out of the removal of ten books from public middle-school and high-school libraries in a school district on Long Island, New York, by the local board of education. Though Island Trees is forty years old, the case concerns books addressing the same themes included in today’s bans: Richard Wright’s “Black Boy,” Kurt Vonnegut’s “Slaughterhouse-Five,” Eldridge Cleaver’s “Soul on Ice,” and titles by Bernard Malamud and Alice Childress. The vice-president of the local board, a retired New York City police sergeant, had deemed the books obscene, “anti-American,” and “just plain filthy,” though he admitted that he hadn’t read them. In fact, he heard about them at a meeting of an organization called Parents of New York United (P.O.N.Y.U.), a conservative group from Watkins Glen, in far-western New York, which had compiled a list of objectionable books and given it to the Long Island school-board members. P.O.N.Y.U. is a precursor of sorts for Moms for Liberty, the modern conservative book-banning group from Florida. (Indeed, Governor Reynolds spoke alongside other state Republican lawmakers at an event hosted by Moms for Liberty at a middle school in Des Moines just months before passing the Iowa law.)

The Island Trees case made its way to the Supreme Court after a district-court judge in Brooklyn, appointed by Ronald Reagan, ruled in favor of the school board, finding that students had no right to access the books in question. The Second Circuit Court of Appeals reversed that ruling, and the Supreme Court took up the subsequent appeal. There, in a majority decision written by Justice William Brennan, the Court invalidated the ban, echoing a prior ruling that students do not surrender their First Amendment rights “at the schoolhouse gate.” But the over-all ruling is hardly a model of judicial clarity. The decision was 5–4, with seven separate written opinions, including four dissents. The majority noted that citizens, including minors, have a right to receive information and ideas. Nevertheless, the opinion is limited to the removal of books that are already in a library, and the Court makes explicit that it is not ruling that school libraries must acquire any particular books. Moreover, Chief Justice Warren Burger wrote a dissent in which he made the evergreen argument that parents should have “influence, if not control” over their children’s education, equating parental control to “democracy in a microcosm.” He also suggested that children who are denied books in school libraries are not prevented from obtaining them: they can simply go to a bookstore and buy them. Finally and, perhaps, ominously, Burger asserts that there is no constitutional requirement that schools maintain libraries at all. “The board,” he wrote, “could wholly dispense with the school library, so far as the First Amendment is concerned.”

The volume and vehemence of the dissents in the Island Trees decision were perhaps a reflection of the times. The Satanic Panic—the belief that cabals of Satan-worshipping teachers and others were conducting terrible rites involving schoolchildren—had begun a couple of years earlier, in 1980, with the publication of “Michelle Remembers,” a memoir purporting to be based on the author’s “recovered memories.” (The panic resulted in more than twelve thousand accusations reported to authorities, none of which confirmed the existence of such abuse.) The year before, a six-year-old boy named Etan Patz had disappeared from his SoHo neighborhood while on his way to school; the incident set off a consuming fear of child abduction across the country. There seemed to be a sense of rising unspeakable dangers to children. Moms for Liberty and similar groups, in a way, are warning of what they perceive to be similar dangers: a conspiracy of “woke indoctrination” that is designed to “groom” children for predators. For whatever reason, book bans are once again being promoted as a totemic protector of children.

This Supreme Court has been protective of some speech, particularly religious speech. (See Justice Neil Gorsuch’s opinions upholding a public-high-school football coach’s right to hold group prayer on the fifty-yard line, and in favor of a wedding-Web-site designer who feared being forced to work for same-sex couples.) But it’s not clear what the current Court would do when the desire to ban speech—or, in the question of book banning, to restrict access to certain ideas—is articulated as a parental right. We know, from the Dobbs decision, that the conservative Justices are not averse to overruling settled precedent, even with regard to a constitutional right. And what about the voices of fundamentalist religious groups who are certain to weigh in on behalf of bans? Will the Court grant deference to a religion-based desire to restrict the information that all public-school students can have access to? It may be that those who favor bans will find a more receptive bench now than they did four decades ago. ♦

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