Book Banning and Book Removals

In Fahrenheit 451, Ray Bradbury wrote about a world in which the responsibility of fire fighters was to burn books rather than to extinguish fires. This radical reconceptualization of the fire fighter’s role was the product of a dystopia in which all books were considered dangerous contraband. Yet the act of burning books has not been left to the imaginary worlds of science fiction writers. In Nazi Germany, for example, citizens collected books that were deemed ‘‘un- German’’ and burned them in great pyres on public streets. Even at the start of the twenty-first century, many seemingly well-intentioned Americans continue to wage wars on books that they think are threatening to the social order, with some even resorting to book burning escapades of their own. However, many Americans consider the burning of books—even those they strongly abhor—to be an extremely repulsive act that is normally associated with brutal totalitarian states. As a result, those who want to reduce the public’s exposure to books they find dangerous have been inclined to use the less drastic—but perhaps equally effective—tactic of having the relevant books banished from public libraries and public school curriculums.

Judges have traditionally extended substantial deference to the decisions of school administrators regarding matters pertaining to the governance and general operation of public schools. This deference is most pronounced in matters regarding the school’s curriculum and the books used in the teaching of that curriculum (see Epperson v. Arkansas [1968]). Paradoxically, this deference has in some instances resulted in outcomes that stymie the efforts of those who want to remove or ban books. For example, courts have uniformly rejected legal challenges against schools where litigants argue that books should be removed from a school’s curriculum because they violate Antidiscrimination Laws by promoting religious/ethnic bigotry (Rosenberg v. Board of Education of the City of New York [1949]) and racist views (Monteiro v. Tempe Union High School District [1998]), or because they violate the First Amendment’s establishment (Brown v. Woodland Joint Unified School District [1994]) and/or free exercise (Mozert v. Hawkings County Board of Education [1987]) clauses. In fact, the courts have recognized that students and teachers are entitled to significant First Amendment protection for the expressive acts in which they engage while on school grounds (Tinker v. Des Moines Independent Free School District [1969]), and that schools should not be allowed to cast a ‘‘pall of orthodoxy over the classroom’’ (Keyishian v. Board of Regents [1967]).

Nevertheless, those who want to restrict access to books in public schools have had significant success, particularly when they have been able to convince a school’s administration that a book ought to be purged from the school’s curriculum. Such a ban prevents the book from being used as an assigned student text in the school’s curriculum, and it may—depending on its specificity—prevent teachers from discussing and presenting material from the book while teaching their classes. For example, in Virgil v. School Board of Columbia County, Florida (1989), the Eleventh Circuit Court of Appeals held that the school board had a reasonable basis to remove works by Aristophanes and Chaucer from its English curriculum after the Board concluded that the texts were too sexually explicit for high school students. The challenged regulation in Virgil allowed teachers and students to discuss the material during class discussions, and the texts were still available in the school library, but it is unclear whether any of these elements to the school’s policy were required by the First Amendment. After all, the Virgil court relied on Hazelwood School District v. Kuhlmeier (1989), a Supreme Court decision that provides school administrators with the broad authority to enact any school curriculum regulations that are ‘‘reasonably related to legitimate pedagogical concerns.’’

First Amendment–based lawsuits against school administrators are also triggered when administrators take steps to either remove or reduce student access to particular books in school libraries. For instance, administrators might decide not to purchase certain books as part of the library’s periodic efforts to gain new acquisitions. Alternatively, school officials might design policies that limit student access to currently stocked books by placing them in restricted areas of the library and by requiring parental concession before a student can gain access to the books. And, of course, administrators may decide that certain books need to be discarded entirely from the library’s collection. Regardless of which method school administrators choose to employ, lower federal and state courts have been guided by the Supreme Court’s conclusion in Board of Education v. Pico (1982) that school libraries fall outside of the school’s curriculum and, consequently, that judges should provide less deference to school administrators when litigants challenge the constitutionality of library policies as opposed to curriculum policies. However, because no opinion in Pico garnered majority support, lower courts have emphasized that it does not constitute a binding legal precedent, but instead constitutes an important factor that judges should consider when they address school board policies that limit access to certain books in school libraries (see Campbell v. Tammany Parish School Board [1995]).

In Pico, the plurality opinion conceptualized public school libraries as environments in which students and teachers should be allowed to freely and voluntarily examine a wide array of views on those topics that they are studying—a process that is often necessary for the acquisition of human knowledge. In addition, the plurality opinion explained that students and teachers have First Amendment rights to receive information, and that administrators should not be allowed to manipulate the stock of available library materials in an attempt to promote a particular political, social, economic, or religious orthodoxy. Administrators in public schools can shape their school library’s holdings, particularly when making new purchases, by considering the intellectual merit of a book, whether a book is appropriate for students of a particular age, and whether a book complements the school’s curriculum. However, books currently housed in a school’s library that are acceptable on these dimensions cannot be removed or restricted because administrators find them threatening to their—or the community’s—ideological predispositions.

The Pico plurality opinion also explained that school administrators face a greater chance of running afoul of the First Amendment when they remove a book already on their school library’s shelves than when they choose not to purchase a book to add to the library’s existing collection. When purchasing new acquisitions for school libraries, administrators must strive to maximize, on what are normally quite limited budgets, the quality of library resources that can be provided to students and teachers. This budgetary rationale, however, is usually not available when the school attempts to remove books already sitting on its library’s shelves. Since books are expensive and libraries generally prefer to have more rather than fewer titles, removing books from a library’s existing stock is an inherently suspicious activity—especially when that activity prompts a lawsuit. To be sure, books can be removed from libraries for entirely legitimate reasons (for instance, they are tattered, out of date, or because room must be made for incoming new titles), but courts have nevertheless been inclined to view legal challenges to school library Book Removals and restrictions as more credible than challenges to administrative decisions to purchase some books but not others.

Thus, school administrators have lost most cases involving challenges to the removal or restriction of access to books in school libraries. For instance, the Pico Court held that the school board could not remove nine books from school libraries simply because they were considered ‘‘‘anti-American, anti- Christian, anti-Semitic, and just plain filthy.’’’ Similarly, a federal district court overturned a school board decision that required students to gain parental consent before gaining access to books in the Harry Potter series that were located in the school library (Counts v. Cedarville School District [2003]). That court rejected the school board’s argument that exposure to the Harry Potter books would be likely to increase student ‘‘disobedience and disrespect for authority,’’ or that the school had an interest in preventing students from reading about ‘‘witchcraft’’ and ‘‘the occult.’’ Indeed, the court considered the latter rationale indicative of the fact that school administrators were attempting to promote only traditional religious values, and thus acting in clear violation of First Amendment doctrine prohibiting viewpointbased regulations of expression. The Ninth Circuit Court of Appeals reached the same conclusion in overturning a local school board’s decision to remove a book entitled Voodoo & Hoodoo from all school libraries in the district (Campbell v. Tammany Parish School Board [1995]).

Government administrators of nonschool public libraries who have taken steps to remove or restrict access to books have frequently encountered frosty judicial receptions when their acts are challenged in court. Unlike school libraries, the policies of local and state public libraries are not entitled to any heightened judicial deference and, therefore, those officials who manage them must hew very close to traditional First Amendment free speech doctrine. For example, a federal district court declared unconstitutional the Wichita Falls Public Library’s decision to remove Heather Has Two Mommies and Daddy’s Roommate—books that experts had deemed suitable for small children—from the children’s section of the library and have them placed in the adult section (Sund v. City of Wichita Falls, Texas [2000]). Thus, nonschool public libraries are even more tightly constrained by the First Amendment than are their public school counterparts, for the efforts of library officials to remove or restrict access to books have been closely scrutinized and are rarely tolerated by the courts.

MARK KEMPER

References and Further Reading

• American Library Association. Home Page. https://www.ala.org

Cases and Statutes Cited

• Board of Education, Island Trees Union School District No. 26 v. Pico, 457 U.S. 853 (1982) 
• Brown v. Woodland Joint Unified School District, 27 F.3d 1373 (9th Cir. 1994) 
• Campbell v. Tammany Parish School Board, 64 F.3d 184 (5th Cir. 1995) 
• Counts v. Cedarville School District, 295 F.Supp.2d 996 (W.D. Ark. 2003) 
• Epperson v. Arkansas, 393 U.S. 97 (1968) 
• Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) 
• Keyishian v. Board of Regents, 385 U.S. 589 (1967) 
• Monteiro v. Tempe Union High School District, 158 F.3d 1022 (9th Cir. 1998) 
• Mozert v. Hawkings County Board of Education, 827 F.2d 1058 (6th Cir. 1987) 
• Rosenberg v. Board of Education of the City of New York, 92 N.Y.S.2d 344 (1949) 
• Sund v. City of Wichita Falls, Texas, 121 F.Supp. 2d 530 (Fed. Dist., 2000) 
• Tinker v. Des Moines Independent Free School District, 393 U.S. 503 (1969) 
• Virgil v. School Board of Columbia County, Florida, 862 F.2d 1517 (11th Cir. 1989)