Huck Finn and Equal Protection
When I started researching how people contest the right to read, I didn’t know what to expect in terms of litigation. I expected some litigation challenging removals or restrictions on books but that this would be uncommon for a few reasons. First, most challenges are rejected; in my data of about 180 challenges to date roughly 85-90% reject the attempted restriction. Second, the doctrinal support for a right to read is relatively weak, as I discussed here. Third, litigation requires someone to raise a legal claim as well as resources to prosecute that claim and, contrary to the myth of litigious Americans, both are in short supply. Most people outraged at a book removal are likely to just let it go rather than seek out legal representation because the stakes personally are not really all that high. Easier to simply purchase the book themselves and move on. The fact that litigation plays such a minimal role is one of the things that originally attracted me to this work as I’m a little tired of in depth doctrinal work. Research, however, often evolves as you get deeper into a subject.
While I went in expecting relatively little litigation challenging library and school restrictions on books, I did not expect to discover a whole parallel world of litigation seeking to force schools to ban books. I didn’t expect this because existing law gives schools broad discretion over curriculum already and many challenges arise in English curriculum controversies. Additionally, the one significant Supreme Court decision on library collections suggests that only institutional restriction on materials already on the shelf raises constitutional implications, the decision to acquire or use a book is (probably) constitutionally unreviewable. Despite this, I’ve found a few creative attempts to use litigation as a means of forcing removal of books. Joan DelFattore’s What Johnny Shouldn’t Read details two high profile Christian Right lawsuits in the 1980s primarily relying on claims that the books violate parent’s right to free exercise of religion. Similarly, parents attempted to invoked their right to raise their children without undue interference in arguing that schools must hide the very existence of gay people from elementary students. More recently, a group of dissatisfied residents and one parent attempted to invoked obscenity law in battling against a book assigned as one option in senior English. All of these attempts have failed but book challengers are creative in invoking arguments which brings me to Monteiro v. Tempe Union High (1998).
In Monteiro, a mother raised objections to two selections in her daughter’s ninth grade English class: The Adventures of Huckleberry Finn by Mark Twain and the short story “A Rose for Emily” by William Faulkner. Her complaint was that both works repeatedly used the N-word and that this contributed to a hostile environment for African American children and thus violated the Fourteenth Amendment’s Equal Protection Clause as well as federal civil rights law. She further alleged that her daughter and other African American students were subject to racial harassment that increased in frequency after the books were covered in class. Where most justifications for book banning turn on parental rights, religion, and/or morality, this claim focused on a right to equal dignity in a racially neutral classroom. And this was not ignored by the court, which noted that racist epitaphs have long been understood to have a power beyond mere insult. The claim failed, in part, because the standard for racial discrimination is a high one. If the school had assigned a racist work as part of an overt message of white supremacy, at least one judge argued, things might be different. But there was no evidence of that here.
The core of the court’s argument rejecting this claim turned upon the countervailing free speech rights of students. This was reinforced by the school’s discretion over curriculum. At times these interests are in conflict but here the court saw them as working together. The school board has the power to choose an appropriate curriculum from a broad range of factors and allowing a single parent to control that decision would inhibit not only that discretion but also the rights of students: “We have no hesitation in concluding … that a student’s First Amendment rights are infringed when books that have been determined by the school district to have legitimate educational value are removed from a mandatory reading list because of threats of damages, lawsuits, or other forms of retaliation.” Partly, the court worried, this would be taking a step down a slipper slope because a great deal of literature is outdated, offensive, or outrageous by modern standards. To prohibit Huck Finn by judicial order would be to open the entire curriculum to trial and that was something the Supreme Court sought to avoid by recognizing educational discretion. The suit also fundamentally attacked a base assumption of free speech: “the function of books and other literary materials, as well as education itself, is to stimulate thought, to explore ideas, to engender intellectual exchanges. Bad ideas should be countered with good ones, not banned by the courts.”
Unsurprisingly, I believe the Ninth Circuit hit the correct balance. Courts should not become forums to review the nuances of curricular decisions as they lack the necessary expertise and judgment. Further, the history of obscenity law suggests that such judicial micromanaging of literature is far more likely to suppress ideas than protect vulnerable populations. This should not, however, be license for ignoring reasonable criticisms. Every teacher knows that one of the big risks is becoming stale. I obsess over the risk that I have fallen into a rut and may include material because it’s easier than changing. Sometimes change is necessary. It makes me think of a debate I saw on Twitter a couple of months ago between English teachers over whether they should still teach To Kill a Mockingbird and, if so, how. The critiques were interesting but the real fascinating details were suggestions on how to use it with more contemporary works to get students to interrogate how Mockingbird’s vision may be skewed by author and place. The legal respect for professional judgment should not be a license for falling into path dependence, the continuation on the same path we’ve always taken because it is easier than changing.
