The rise of book bans throughout the U.S. and Minnesota’s legislative response
“Each of these rulings has shown that while book bans have become increasingly attractive to some school board members and lawmakers, courts have been skeptical of their constitutionality.”
According to the American Library Association, 2023 saw the greatest number of attempted book bans in public libraries and schools in the United States since the ALA began keeping records 20 years ago. The ALA documented 4,240 unique book titles that were either removed or restricted beyond the age intended by the publisher, a 92 percent increase over the previous year. The ALA also noted that 47 percent of books banned or challenged feature the voices of LGBTQ+ people and people of color.
While individuals and organizations challenging large numbers of books at a time drove the 2023 surge in book bans, state legislatures and school boards have also played a significant role. As discussed below, most of these efforts have been met with litigation.
Florida, Iowa, Missouri, Oklahoma, Tennessee, Texas and Utah are among the states to have enacted content-based restrictions on books in public schools. In perhaps the most well-known example, Florida’s “Don’t Say Gay or Trans” law, passed in 2022, prohibits “classroom instruction by school personnel or third parties on sexual orientation or gender identity” for students in kindergarten through third grade. The law prompted widespread confusion and concern from educators, librarians and civil rights groups that previously approved children’s books featuring LGBTQ+ characters could violate the new law. Publishers and civil rights groups sued the state, and a recent settlement significantly narrowed the law to make clear that the law does not prohibit references to LGBTQ+ families in books, does not prohibit anti-bullying curriculum, and does not apply to school libraries.
In 2023, Iowa passed a law similar to Florida’s but extending to grade six, and explicitly prohibiting any books containing reference to sex acts other than those in the Bible in all public schools for students grades K-12. The law prompted the removal of hundreds of books from school libraries and classrooms and was also challenged in court. Penguin Books, several well-known authors, and the Iowa State Education Association are among plaintiffs suing the state. In December 2023, a district court judge temporarily blocked both provisions of the law, finding that they were unconstitutionally vague and overbroad in violation of the First Amendment. The court also agreed with the plaintiffs that many age-appropriate and celebrated literary works include content that would arguably violate the law. The case is now on appeal.
In August 2023, the Clyde-Savannah School District in upstate New York removed five books from the school library after a minister with no children in the district challenged them. After New York State United Teachers (NYSUT) challenged that action with the state commissioner of education, the district rescinded its ban, prompting the minister and a local Moms for Liberty chapter to appeal the school board’s decision to the commissioner. In a written opinion issued just last month, the state commissioner rejected the book challenge, finding that the objections were not limited to concerns about their age appropriateness, but rather motivated by disagreements with the authors’ personal and political views. The commissioner relied heavily on Board of Educ., Island Trees UFSD No. 26 v. Pico, a 1982 decision from the U.S. Supreme Court holding that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books.
A 40-year-old court decision stemming from an attempted film ban in the Forest Lake School District is frequently being cited in current litigation. In Pratt v. ISD No. 831, Forest Lake (1982), three students sued the district over its effort to prevent a teacher from showing the movie “the Lottery” because of political and religious themes parents and board members found offensive. The U.S. Court of Appeals Eighth Circuit held that the school board’s action, although purportedly due to graphic violence in the film, was motivated primarily by ideological concerns. The court reasoned, “What is at stake is the right to receive information and to be exposed to controversial ideas-a fundamental First Amendment right. If these films can be banned by those opposed to their ideological theme, then a precedent is set for the removal of any such work.”
Each of these rulings has shown that while book bans have become increasingly attractive to some school board members and lawmakers, courts have been skeptical of their constitutionality. In addition to opposition from courts, a number of states are beginning to intervene to prohibit school districts and libraries from banning books based on the book’s viewpoint or ideology. Illinois, Washington and Maryland have all recently passed “Freedom to Read” laws—which take aim at book bans—and similar bills have been introduced California, Connecticut, Delaware, Georgia, Kansas, Massachusetts, Missouri, New York, Pennsylvania, Rhode Island and Vermont.
As of the time of this printing, Minnesota’s proposed prohibition on book bans has been included in both the house and senate education omnibus bills— meaning it is very likely to become law this year. The bill states that a public library, including libraries and media centers within public schools, “must not ban, remove, or otherwise restrict access to a book or other material based solely on its viewpoint or the message, ideas or opinions it conveys.” The proposed law does not prohibit public libraries from removing or restricting books over “legitimate pedagogical concerns, including but not limited to the appropriateness of potentially sensitive topics for the library’s intended audience….” among other reasons. Finally, the law requires all libraries to adopt a policy with procedures for selecting books, reviewing challenges and reconsidering materials. Echoing concerns of many members about the rise of book bans or book ban efforts, Education Minnesota has supported this legislation.
As a note of caution, even with legislation prohibiting book bans, K-12 educators do not have a First Amendment right to select classroom content without district oversight. For classroom instruction, educators will still need to work through the curriculum review process set by their district’s or charter school’s advisory committee and site team, as required by state law. Nevertheless, if passed, Minnesota’s prohibition on book bans will make it much more difficult for community or school board members to ban certain books from school libraries based on disagreement with the ideas expressed within them.
This Legal Briefs column, written by Education Minnesota attorneys, is one of an occasional series on legal developments that affect educators.
