GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2024

Status

Accepted

Abstract

Since 2021, the number of demands that public school libraries remove materials from their shelves based on content has accelerated almost too quickly to track. Book removal incidents are more prevalent today than at any time since data became available, doubling between 2021 and 2022. Such “book bans” (as opponents characterize them) or “targeted book removals” (as the courts call them) arise in the context of intense political and cultural divisions and, in turn, exacerbate those conflicts. Indeed, national organizations as well as politicians at every level have played a role in the contemporary attack on library materials, which disproportionately targets books about or by LGBTQ+ people and racial and ethnic minorities. Targeted book removals have led to a spate of litigation, most of it still working its way through the judicial system.

While it might seem a simple proposition that removing books from school libraries based on their content always violates the First Amendment, the governing law is far more complex. Public schools exist in a special constitutional zone in which students and others have a limited right to free expression. Libraries play a special role within that zone, it is argued, as a place devoted to free inquiry, where students have asserted a right to receive information.

This Essay delves into the granular distinctions among settings, decisionmakers, and materials in public schools before analyzing the current constitutional status of targeted book removals. When courts consider legal challenges to book removals, they face a number of complexities, including (1) the fragility and diminished stature of the sole Supreme Court case addressing library book removals, which is the basis of students’ right to receive information; (2) limited (or no) guidance from appellate courts; and (3) the need to assess the standing of a variety of plaintiffs (including students, teachers, and librarians as well as authors and publishers) in relation to a range of distinct constitutional claims that receive different levels of judicial review. Meanwhile, competing visions of parental rights add to the stakes.

The Essay reveals the jurisprudential obstacles to successfully challenging targeted book removals in court. It argues, however, that—with the right plaintiffs—a range of constitutional arguments offer a path to keeping controversial library books available to public school students in every jurisdiction.

GW Paper Series

2024-61

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