Constitutional and Policy Considerations for Library Book Bans
We have received a number of inquiries regarding the proposed policy changes required by PA 103-100, which limits the abilities of libraries, including school libraries, to ban, limit, or remove books based on partisan or doctrinal grounds. While the statute became effective on January 1, 2024, it is important to note that there are also longstanding constitutional considerations when schools seek to ban or remove books from the library.
First, the proposed policy changes from PRESS appear to narrowly track the changes in the statute:
Sec. 8.7. State grants; book banning. In order to be eligible for State grants, a library or library system shall adopt the American Library Association’s Library Bill of Rights that indicates materials should not be proscribed or removed because of partisan or doctrinal disapproval or, in the alternative, develop a written statement prohibiting the practice of banning books or other materials within the library or library system.
75 ILCS 10/8.7. The definition of a library or library system in the statute includes those libraries and library systems that provide services to “elementary and secondary school libraries.”
Second, and perhaps more important than the statutory changes created by PA 103-100, these issues are well-settled within the federal courts. While boards of education have slightly more authority as it relates to curriculum decisions (which we do not address in this post), courts have been very quick to find First Amendment violations for the removal of books from libraries. The decisions over time have generally limited the ability of school boards and other entities to remove books from libraries based on disapproval of the content of the book.
Most significantly, the Supreme Court addressed this question in Board of Education, Island Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853 (1982). In Pico, a school district directed the removal of certain books from junior high school and high school libraries (Down These Mean Streets, The Naked Ape, Slaughterhouse Five, among others), arguing that they were “anti-American, anti-Christian, anti-Semitic, and just plain filthy.”
The Supreme Court said that while Districts and local school boards have broad discretion in managing school affairs, that discretion must be exercised in a manner that complies with First Amendment rights. First Amendment rights, according to the Supreme Court, may be directly implicated by the removal of books from library shelves. Local school boards cannot, therefore, remove books simply because they dislike the ideas contained therein, as the Court’s decision noted that “ ‘[S]tudents must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding.’ The school library is the principal locus of such freedom. … Our Constitution does not permit the official suppression of ideas. …” Id. at 868-69 and 871. Ultimately, the Supreme Court noted that “Local school boards may not remove books from school library shelves 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.” While this decision might allow a school to remove a book because of “educational unsuitability,” most courts have found such arguments unpersuasive in subsequent cases, and the general rule of the cases – with relatively few exceptions – has been against the banning of specific books.
Recent court decisions appear to be in line with the general rule from the cases over time, including a recent Fifth Circuit decision enjoining Texas’ book ban law as likely unconstitutional (Book People, Inc. v. Wong, No. 23-50668, 5th Cir. 2024) and a Florida federal decision permitting a First Amendment case to proceed against a school board for removing books from school libraries (PEN American Center, Inc. v. Escambia County School Board, No. 23-cv-10385, N.D. Fla. 2024). In the Escambia County School Board case, the court noted: “The amended complaint plausibly alleges that Defendant’s removal/restriction decisions at issue in this case do not pass constitutional muster under [the Pico] standard because the decisions were based on ‘ideological objections to [the books’] content or disagreement with their messages or themes, rather than for pedagogical reasons.’”
So – where does that leave schools considering these issues? Keep in mind that these legal issues are not new – and it is legally prudent for boards of education to consider both the change in state law and the longstanding court precedent when confronted with these highly-charged decisions.