☆ Constitutional law experts reveal differing opinions on school library debate
The specter of censorship looms over public school districts, as some locals worry their school libraries are pulling content parents label as inappropriate. Really, do parents have the constitutional right to request—even demand—a book is removed from their public school's selection? Opp Now asked four legal experts (three from CA) to speak to this controversy. Their exclusive varied takes below.
Barry P. McDonald, Pepperdine University Constitutional Law Professor:
Parents always have the right to make such requests, but a school would not be obligated to cater to individual requests. A more appropriate question might be this: If parents prevailed on school administrators or board members to order certain books banned, what free speech rights might objecting students or parents have?
The SCT has only dealt with this very issue in one case. It was a highly fractured decision. My guess is that the current court would put some burden on the board to demonstrate that certain books were inappropriate for minors for reasons other than personal dislike, but likely defer to the board's decisions the younger the student was.
Lance Christensen, California Policy Center Education Policy & Government Affairs Vice President, Former Legislative Consultant:
My answer to this question is complex. First of all, I believe—and the Supreme Court has said this over and over—that parents are supreme in education. A school, when they act as a stand-in for the parent for a short duration of time, has certain privileges but can't take parents' rights away.
With that said, local school boards can adopt whatever kind of curriculum they want as long as it's consistent with state standards. Reasonable people may disagree with those state-mandated standards, but school boards are doing nothing legally wrong if they're abiding by them. Our state constitution provides a wide swath for school boards to adopt curriculum that follows their standards.
Furthermore, there is a First Amendment issue that slices a couple different ways. In a public school, which has the ability to mandate a child attends there, I'd argue the parent has the right to tell their school what or what not is acceptable (including being age appropriate) to discuss with their child. And the parent should be allowed to disassociate with a school that doesn't comply with their preference. So the First Amendment applies to that school just as much as parents.
Also, one of the sole responsibilities of a school board is fiduciary: approving the budget and approving curricula. The board can't control what actually happens in the classroom. So if a teacher decides to take the established curriculum and teach something differently (e.g., to introduce a book that some view as not age appropriate), does that district have the right to sanction them? How much constitutional authority does that teacher—whose salary is paid for using taxpayer dollars—have to forgo curriculum passed by the school board (which was approved and appointed by taxpayers)? There's not a clear answer to this question, in my opinion.
Ultimately, if a parent doesn't believe a book being taught is age appropriate, academically rigorous, or is overtly controversial for its own sake, they have the right to ask that the book not be part of the school curriculum. This shouldn't be labeled as banning books; it's not that at all. A local school isn't the Library of Congress. They don't have access to every book out there and won't have access to every idea.
Kelly Chang Rickert, Constitutional Law Attorney in Pasadena, CA:
The law is very vague on this question. Parents have the ultimate authority over the health, education, and welfare of their children. There is a landmark case (Troxel) that defines this.
However, many states have passed laws that allow perverse subjects to be covered, under the guise of “diversity and inclusion.”
I do believe some new laws will need to be established as to whether a parent has a right to request removal of books and literature. And it will require new lawsuits and brave attorneys to take them and sue them and make new law.
Jeff Rowes, Institute for Justice Senior Attorney, First Amendment and Constitutional Law Expert:
Parents have a First Amendment right to express their views on the content of books in public schools, just as they have a right to express their opinion on who should be president. The First Amendment protects their right to express views, especially political views.
If the question is whether parents have a First Amendment right to force the schools to remove books from public schools that the parents don’t like, then no. The First Amendment does not give private citizens the power to dictate the contents of a public school library. Parents can put political pressure on existing officials or seek to have officials removed, perhaps through elections. And parents have a right to send their kids to private school or homeschool them if they don’t like what public schools teach or what is in the public school library. But there is no constitutional right (and imagine how unworkable it would be) for every set of parents to send the principal a list of books that must or must not be in the library.
For what it's worth, I also strongly dislike the term “book ban.” The decision not to add or remove a book from a public library is not a book ban. It is just a government policy decision about how it operates its own institutions. A book ban is when the government does not allow you to write, own, or publish a book on a forbidden topic. So not only is the term legally inaccurate, but using it in debates about what should go in a public school library diminishes the courage of people who defy actual book bans (and other viewpoint restrictions) such as Russians who want to criticize the invasion of Ukraine and Putin’s policies. No one in America remotely faces what Russians face because courts here enforce speech rights.
Read alternate perspectives, and solutions, on restricted school library offerings here and here.
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