Addressing Challenges to Controversial Books

For years there have been efforts to ban certain books in schools. Parents’ concerns have ranged from profanity and sexual content to the political leanings of various authors. More recently, the outcry against the perceived inclusion of “critical race theory” in schools has gained national attention. How can school boards and administrators address parent concerns while also maintaining a robust and high-quality selection of library books for students?

School boards have broad discretion in determining how to govern their school district, including determining the curriculum and what books are available in their libraries. New York State Education Law specifically delegates to school boards the task of designating school library materials to be used in schools. More importantly, parents may not compel a school district to use or not use a particular book.

Nevertheless, there are certain restrictions on a school board’s discretion. The courts have consistently held that school districts should encourage free speech as opposed to curtail speech or the expression of ideas. In making determinations regarding the removal of books, any action taken by a board of the board’s designee should be “viewpoint neutral.” In other words, removals by a board or designated administrator should be reasonably related to legitimate pedagogical concerns, rather than based on the social, religious, political, or philosophical views of an author or work.

With respect to legal challenges against school boards that have removed books from school libraries or curriculum, the courts typically find a violation of students’ First Amendment rights if removal is content-based or reflective of board members’ personal taste and values. By comparison, if a school board removes a book due to vulgar or sexually explicit content, such decision is less likely to be overturned by a court. Again, the legal standard to consider is that removal must be reasonably related to legitimate pedagogical concerns. It should not be to restrict access to certain political, social or moral views.

With respect to a school district’s refusal to remove a book from its curriculum and libraries, the courts generally defer to the discretion of the school board. By way of example, in Monteiro v. Temple Union High School Dist., 158 F.3d 1022 (9th Cir. 1998), the Court denied a parent’s request to ban certain books, including Huckleberry Finn, from a school district’s curriculum based on the allegation that such book was racist. The Court concluded, however, that the book had already been determined to have intrinsic educational value. The Court further discussed how removing a book for racial stereotypes of a particular group could open the door to removing other great literary works including Toni Morrison, Tennessee Williams, Hemingway, and Shakespeare. Ultimately the Court did not want to restrict students’ rights to receive material that a school board or other educational authority deemed to be of legitimate educational value.

What tools do school districts have with respect to challenges of their own library books? We recommend that districts begin by reviewing any board policies related to the selection and maintenance of library materials, to determine whether such policies are well articulated and followed. Your policies should outline considerations when reviewing material, such as the quality of the literary material, the reputation and significance of the author, the appropriateness of the material for the age, grade, and maturity level of the students who will be reading it, the material’s relationship to the school district’s instructional programs, and the authenticity of the material.

School districts should also establish unbiased procedures for the review of controversial materials if brought to a board’s attention. This can involve establishing a small committee comprised of teachers and administrators to address challenges to library materials. The committee’s recommendations should be submitted to the board for approval. It is also important for board members to understand that their decisions as board members must not be based on personal preferences or values.

Please contact us for assistance with development/revision of materials selection procedures/policies and for consultation regarding challenges to specific materials.