As a wave of attempts to remove books from school libraries continues to sweep the country, including in Bartholomew County, an Indiana University law professor says that the efforts have First Amendment implications, though Supreme Court precedent on the issue is “exceedingly ambiguous.”
Just over 40 years ago, the U.S. Supreme Court issued a ruling in a landmark case over books being removed from a public school library in what has been the high court’s most relevant — albeit ambiguous — statement on the issue so far, said Daniel Conkle, professor emeritus at the Indiana University Maurer School of Law who has taught Constitutional law, the First Amendment and law and religion.
The case, Board of Education, Island Trees Union Free School District v. Pico, involved a lawsuit filed by students against a Long Island school board that removed books from a high school library that a politically conservative group had voiced objections to, according to a copy of the Supreme Court’s decision.
At the time, the school board said the books — which included “Slaughterhouse-Five” by Indiana native Kurt Vonnegut and “Soul on Ice” by former Black Panther Party leader Eldridge Cleaver — were “anti-American, anti-Christian, anti-Semitic and just plain filthy.”
The students, who were represented by the New York Civil Liberties Union, argued that the removal of the books violated their First Amendment rights. The school board, for its part, contended that the First Amendment didn’t apply to decisions about school library catalogs.
While the Supreme Court ultimately ruled 5-4 in favor of the students, the justices were unable to form a majority opinion, meaning that not a majority of the justices concurred in the judgement’s legal reasoning.
Instead, the high court issued what is called a “plurality opinion,” which does not carry the same weight in terms of precedence as a majority opinion as fewer than half of the justices concurred.
The plurality opinion was written by Justice William J. Brennan Jr., who was joined by two other justices. Another justice only concurred with part of the decision and a fifth justice “joined in the result without agreeing with any of the reasoning,” Conkle said.
“The result in the Supreme Court was extremely fractured in which you had a 5-4 ruling, but no majority opinion,” Conkle said. “…So basically, what that means is you have great ambiguity as to what’s the result of the case in terms of a precedent.”
The end result, according to free speech activists, was that Supreme Court’s decision in the case was not definitive enough to prevent attempts to remove books due to objections to their content over the past four decades.
Currently, the number of attempts to ban or restrict access to books have reached its highest levels in more than two decades, according to the American Library Association.
And Bartholomew County has been no exception.
Last year, a religious group led by an out-of-county resident attempted to get Bartholomew County Public officials to remove six books from its teen section — or from the library catalog altogether — dealing with gender, sexuality and sex education, claiming that the books are “pornography” “brainwashing our children” and will “make kids confused about who they are.”
More recently, Eric Grow, a local parent and former school board candidate, compiled a list of books that he says are present in Bartholomew Consolidated School Corp. libraries and “may be problematic” and made the list available on social media as part of an effort “aimed at improving the resources available in our public school libraries.”
The “problematic” content, according to Grow, includes, among other things, “controversial cultural, political, social, or racial commentary;” “controversial/inflammatory religious commentary;” “alternate gender, sexual ideologies, dismorphic”; and critical race theory or diversity, equity and inclusion ideologies.
BCSC officials issued a statement saying they have a specific policy in place for public complaints and concerns. If a person chooses to go through this process due to concerns with a book, the school corporation with “thoroughly review the book as necessary and make a determination regarding the book’s placement.”
In the Supreme Court’s plurality opinion, Brennan held that the First Amendment of the U.S. Constitution limits the discretion that public school officials have to remove books they find offensive from school libraries.
“Local school boards may not remove books from school libraries simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion,’” Brennan wrote in the opinion. “…Our Constitution does not permit the official suppression of ideas.”
However, “the ruling suggests that school boards can remove books for pedagogical reasons, educational suitability reasons, vulgarity reasons, but not simply on the basis of a disagreement with the political or social message in essence of the books that are subject to that removal,” Conkle said.
And so far — after more than four decades — the lower courts “haven’t completely figured out what the First Amendment limit is,” Conkle said.
If a school board were to order books to be removed from a school library and a lawsuit was filed to challenge their removal, courts would likely focus on the school board members’ motivations for having the books taken off library shelves, as Brennan states in the plurality opinion that a violation of the First Amendment in this situation “depends upon the motivation.”
School boards could try to defend their decision to remove books by arguing that “the books that they removed were not educationally suitable for younger children” or “because they included vulgarity,” Conkle said.
“In essence, the law seems to be that a school board would be at least treading on thin ice if it were to order removal of books for no reason other than it doesn’t like the ideas being expressed in those books,” Conkle said.
“Throughout the years, there have been various controversies at various points of time, and yet, we still have no definitive ruling from the Supreme Court,” Conkle added. “The best we have is this Pico ruling.”