In Part 1 of this post I described the outlines of challenges against Patricia Polacco’s In Our Mothers’ House in Davis, Utah. Here, I explore the events that led to the restriction, the lawsuit, and the settlement. Much of this information relies upon the ACLU’s legal complaint.
When formal challenges are filed, schools generally convene a reconsideration committee. Every institution varies but typically the committee is made up of librarian(s), teacher(s), a member of the administration (often a principal), and at least one parent representative. In junior high and high school challenges, a student is usually included as well. Davis convened a committee to hear the initial challenge and issued its conclusion on 27 January 2012. The memo states that while the challenger objected to the content of the book, the committee concluded that it “was appropriate” for the elementary library but that it would be reclassified from easy reading to fiction. The legal complaint notes that this fiction collection was intended for grades 3-6 but no mention is made of restricting access to those grades. While the memo states that the challenger “agreed that this would be acceptable to her,” apparently the committee chair was mistaken because the challenger appealed the decision and organized an additional two dozen challenges.
A further committee was organized on a district wide basis on 30 April 2012. Importantly, this committee included a “legal issues specialist.” At this committee a few of the challengers expressed many of the concerns discussed in their challenges but further criticized the degree of autonomy librarians had over school collections. This fits into a common trope that some literature is so dangerous that autonomous professionals must be guided by parents because professional judgments are often amoral. The challengers were informed of a rule that allowed parents to forbid their child to check out specific books but stated that this was insufficient because the child could still read it in the library without checking it out. The committee deliberation notes suggest that the district’s lawyer dominated the discussion. They stressed correctly that the Supreme Court’s jurisprudence on school libraries is limited but had to admit that personal disapproval of a book’s message is insufficient to justify restriction or removal. However, the lawyer opined that elementary libraries are different from public libraries or even other school libraries because “[s]tudent use of the elementary school library is very supervised and generally part of a lesson.” Thus, library use is in significant degree part of the curriculum itself.
It was this link to curriculum that proved crucial. The lawyer suggested that the district must look to curriculum standards. In particular, the lawyer pointed to the state’s “no promo homo” law that banned “advocacy of homosexuality” in public schools. The gist of such laws, and Clifford Rosky’s article is the best source on these policies, is that homosexuality is a danger and thus must be disapproved in all curriculum. While the minutes only summarize the discussion, it seems that the district’s lawyer believed that any positive portrayal of gay or lesbian people was prohibited advocacy. Based on this interpretation, the committee voted 6-1 to put the book behind the library desk and only allow checkout with signed parental permission in advance. When someone asked how a parent would be aware of the book to give permission, the librarian responded that “they generally know who the students are and can let the student or parent know that the book is available with parent permission.” This continues to assert the narrative that only children of gay parents would ever have a use for Polacco’s book.
The committee’s action to restrict the book rather than remove it demonstrated that the legal justification itself was a pretext. After all, if In Our Mothers’ House was homosexual advocacy, then the district was legally prohibited from providing access to it. The law did not allow an exemption for parental permission, any advocacy of homosexuality was prohibited. By restricting rather than removing the book, the committee in essence admitted that it was surrendering to the challengers’ moral criticisms rather than any legitimate pedagogical reason for the change. The legal justification, however, had radiating effects. On 1 June 2012 the Salt Lake Tribune reported that Davis school librarians had been instructed to preemptively remove and restrict other similar books, notably And Tango Makes Three. The District denied this story and engaged in some odd behavior to support the denial. In its July board meeting it amended the May meeting minutes to state, in essence, that the district’s reconsideration policy forbids the removal of a book until a committee hears the challenge. The fact that nearly two months had passed when this edit was made is suspicious, to say the least, and was likely triggered by the willingness of librarians to disclose to the press the preemptive restriction order.
On 13 November 2012, the ACLU filed a complaint in federal court challenging the restriction of In Our Mothers’ House. The Davis district would eventually reach a settlement in January 2013 where it agreed to remove the restriction, pay $15,000 in legal fees, and promised not to invoke the “no promo homo” law again for library collection issues. (It is worth noting that Utah repealed this odious law in 2017). As is typical with such settlements, the district did not admit to any constitutional violation. The record is unfortunately sparse, the district did not even file an answer to the complaint before settling, so it is impossible to say for sure but my guess is the district’s legal staff realized they had a significant problem. The legal standards governing library removals are vague and it is relatively easy to defend a decision on amorphous grounds of “educational suitability.” Had the district simply removed In Our Mothers’ House, it probably would have been on safer ground but as the restriction undermined its curricular rationale, justifying the restriction was more difficult. And then there is the allegation of a preemptive purge of other similar books. If an internal review turned up communications supporting the Tribune’s story, as seems likely, then settlement became an attractive way to avoid protracted litigation and public embarrassment.
So after a year of agitation, litigation, and payment of $15,000, what was the result? Things ended exactly as they began, with a policy that allowed parents to affirmatively restrict their child’s library use. The original challenger always had the option of blocking access to the book but this was insufficient. The very fact that the book existed was objectionable because queer voices did not deserve a place in our public spaces. Luckily for those of us who support a broad right to tell and read stories of all kinds, the District handled this issue so poorly that it exposed itself to litigation and a risk of a significant loss, not to mention public embarrassment, forced it to back down and restore access.