BATTLEGROUNDS FOR BANNED BOOKS: THE FIRST AMENDMENT AND PUBLIC SCHOOL LIBRARIES.

• Author: Rehn, Jensen

When students started remote learning in the spring of 2020, new developments in digital teaching techniques entered homes and apartments across the United States. Even as children increasingly rely on technology for turning in assignments and attending virtual classes, some of the most contentious conversations at school board meetings in the past two years have related to teaching tools that have existed for centuries--books. Stereotypes of public school libraries as bastions of peaceful silence and calm order have shattered as public school library collections become powerful political symbols in communities across the country. Beyond calls to remove or reconsider books, members of some school boards have called for more drastic measures. Members of the Spotsylvania School Board in Virginia said "they would like to see the removed books burned." (1) Comments from some board members look like dialogue more appropriate for a dystopian novel than a school board meeting: '"I think we should throw those books in a fire,' [one representative] said, and [another representative] said he want[ed] to 'see the books before we burn them so we can identify within our community that we are eradicating this bad stuff.'" (2) These comments earned political points. After his book burning diatribe, one representative got promoted to Chairman of the Spotsylvania School Board. (3)

Unfortunately, the spectacle in Spotsylvania was not an isolated incident. Similar situations have occurred with increasing frequency throughout the United States. The Office of Intellectual Freedom of the American Library Association (ALA) studies efforts to ban books and "[f]rom June 1, 2021, to September SO, 2021, [the AIA]... tracked 155 unique censorship incidents, and provided direct support and consultation in 120 of those cases." (1) Anecdotally, the director of the Office of Intellectual Freedom could not "recall a time when [the ALA] had multiple challenges coming in on a daily basis." (5) This troubling trend exists beyond anecdotes. In December of 2021, the ALA released statements noting how "[t]here were more censorship attempts reported to ALA in the last three months [of 2021] than in all of 2020." (6) Banning attempts in 2022 will likely surpass the 2021 numbers, as Unite Against Book Bans tracked" 1,651 unique titles targeted between January 1-August 31, 2022." (7) Although certain stories receive disproportionate amounts of attention, challenges are increasing across the country. Challenges to books have happened on state and local levels in thirty-two states (8) which are spread throughout the country and include Iowa, (9) Florida," (1) Oklahoma," Texas, (12) and Wisconsin. (13) No state seems safe from potential public school library controversies.

As attempts to ban books increase throughout the United States, people on various sides of the debate use legal words and phrases to support their arguments. Academics and attorneys should recognize "ban," "remove," and "challenge" as synonymous terms that refer to what happens when parents ask school boards to take books off public school library shelves. Using all these terms reflects common use of the words and aligns with definitions from the ALA. After establishing a common vocabulary, courts should consider banned-book cases through a First Amendment free speech framework rather than a parental rights framework. Public school libraries exist as entities distinct from public libraries or public school classrooms. Therefore, bookban cases require different analysis than required school curriculum cases. Removing books differs from affirmatively requiring libraries to obtain books. Once school districts identify books as educationally appropriate for public school libraries, subsequent challenges need a legitimate basis.

To determine where to draw the legitimacy line, federal courts should primarily rely upon the plurality opinion in Board of Education v. Pico,' (4) which addressed removing books from a public school library. Since Pico has holes, lower courts should draw upon other First Amendment precedents, too. For example, West Virginia State Board of Education v. Barnette^ will help lower courts ensure that public school libraries do not create a single orthodox national narrative. Similarly, Brown v. Entertainment Merchants Ass'n (i6) provides precedent for not infringing upon the First Amendment rights of children whose parents approve of them engaging with controversial forms of media. Expanding beyond Pico would create more stability for students and librarians in public schools across the country.

Throughout the United States, conversations about removing books from school libraries have prompted political action from parents who hold a variety of viewpoints. Within the past year, many pushes to ban books have come from advocacy groups rather than individual parents. (17) Requests to remove books often begin when someone expresses concerns about specific passages or themes contained in books. (18) For example, a Tennessee chapter of "Moms for Liberty" composed a list of books it found objectionable and presented that list to both the local school board and the Tennessee Department of Education. (19) Parent groups have also assembled to oppose book bans. Advocacy against banning books occurs on both a national and local level, too. One group called the "Book Ban Busters" put together an interactive map with color-coded pins identifying locations with permanent bans, temporary bans, requested bans, and busted bans. (20) Not all protests to book bans come from national organizations. Grassroots groups of parents also assemble when books get banned. Texas was a hot spot for book bans throughout 2021.' (21) Not all Texan parents supported these efforts. Round Rock Black Parents Association advocates in several spheres, (22) and the group has been a driving force behind petitions to keep books in Texas public school libraries and on reading lists. (25) With the potential for people to take issue with books for a variety of reasons, libraries could eventually end up with sparse shelves. To demonstrate this potential abyss, one editorial noted: "You don't like Upton Sinclair's 'The Jungle,' the 115-year-old novel about the horrors of the Chicago meat-packing industry? Well, I don't like 'The Fountainhead,' Ayn Rand's paean to rugged, stubborn individualism." (24) Before long, book bans to gain political points could devolve into ceaseless feedback loops of challenges.

Embedded in each conversation about banning books are arguments that use legal terminology. A brief conversation about banned books with a librarian will likely lead to a discussion of the "Library Bill of Rights" published by the ALA. (25) No one is bound by the ALA's Bill of Rights, which lacks a method of enforcement. (26) Thus, the question remains: what is the legal landscape of banning books? Unfortunately, the Supreme Court has not provided a clear precedent about banning books from public school libraries. In fact, the Supreme Court has only taken cases about libraries on three occasions, each of which has resulted in its own complex web of plurality opinions. (27) For public school libraries, Board of Education v. Pico is the guiding case. (28) Yet, as the past few decades have demonstrated, Pico falls short when lower courts attempt to apply it. In the face of the myriad of potential cases that could soon arise about banned books, federal courts are not completely lost. Rather than cobble together a Franken-precedent from pieces of the Pico plurality, courts can draw upon binding precedents from West Virginia State Board of Education v. Barnelte (29) and Brown v. Entertainment Merchants Ass'n (30) to guide decisions about books in public school libraries.

First, Part I of this Note will establish a baseline understanding of the background of book bans in public school libraries. Part I begins with the vocabulary of banning books, continues to the history of how banning books connects to free speech, and concludes with why banning books should be viewed as a question of free speech rather than parental rights. Potential speech implications for parents, school governments, authors, students, and librarians each receive attention. Then, Part II examines how the Supreme Court addressed the removal of books from a public school library in Pico and how federal circuit courts of appeals and federal district courts have applied the Pico plurality. In light of these shortcomings, Part III argues that even without binding precedent from the Supreme Court, courts can combine the Pico plurality with binding First Amendment precedents from Barnette and Brown to guide how they think about upcoming decisions regarding banned books.

1. BOOK BANNING BACKGROUND

   Entering the conversation about the legality of banning books requires first establishing a vocabulary for banning versus removal, providing a common context for the relationship between books and free speech, and narrowing the focus from parental rights to something more akin to student speech.

   1. Common Vocabulary

      Throughout this piece, a variety of terms will appear to describe the removal of books from libraries, including "ban," "remove," and "challenge." Establishing which of these terms will appear matters in the book-banning context. Some articles have suggested that "remove" provides a more politically neutral word for the process. (31) Academic authors are not the only ones who have noted the importance of precision when choosing to use either "ban" or "remove." None of the plurality opinions in Pico used the word "ban." Instead, phrases such as "discretion to remove library books" appear. (32) Federal judges have taken conflicting stances about the significance of "ban" not appearing in Pico. When the Court of Appeals for the Eleventh Circuit decided ACLU of Florida v. Miami-Dade County School Board--which determined whether a children's book...