The Uses and Limits of Law
The antidiversity movement to ban books has been powerful, there is little doubt of that. Extremists drawing from various forms of right wing activism have targeted books that are largely about people of color and queer folks while dressing up their challenges as being about “porn” in the library. They call these books obscene without any engagement with the actual law that clearly means they are not obscene. One thing I see often is “why don’t we sue them!” (with them being the schools that censor material). In Missouri, the ACLU has done just that after the Wentzville School District removed a slew of books including the great The Bluest Eye by Toni Morrison. Will this work? Well it depends on what you mean by work because litigation has multiple purposes. The ACLU might, and I stress only might, win in a full lawsuit but it is far more likely to scare the school into backing down, as may already be occurring.
The ACLU’s complaint is focused on The Bluest Eye though ultimately eight books have been removed in some fashion. As the complaint summarizes “Each of the Banned Books features and presents the perspective of an author or protagonist, or both, who is non-white, LGBTQ+, or otherwise identifies as a minority.” A leader of the local antidiverstiy group, who did not have a child in this school, objected to The Bluest Eye because it contains “Pediphilla, incest, rape.” “Any non-woke WDS parents” are represented by her. This amazing book about Black experience, written by a Nobel Prize winner no less, is boiled down to a book advocating sexual abuse. To the censor, books endorse what is inside of them and any mention of sex, abuse, drug use, queer people, and so on, are unacceptable. I assume Romeo and Juliet would be condemned for the underage sex, of course. As the complaint noted, students can opt-out of reading and that this was not even used in the curriculum, it was just available in the school library - a school, again, that the challenger had no child in. The review committee voted 8-1 to retain, with only 1 vote to remove and 2 to restrict access (I don’t have those records but they are bizarre votes). Without any clear explanation, the Board voted 4-3 to remove The Bluest Eye.
So this brings me to the question: would the lawsuit win? That is a hard thing to say. The leading law on this issue is provided by Board of Education v. Pico (1982). As I discussed here, Pico is a weak precedent for two basic reasons. First, there was no majority opinion. Justice Brennan wrote what we call a plurality opinion that only had the support of three justices, with a fourth supporting a different First Amendment argument to rule against the school’s censorship. This means that there is no actual binding precedent for lower courts but the plurality decision can and has been used as persuasive precedent by most lower courts dealing with book banning cases. The second weakness, however, is that Brennan’s opinion strongly suggests that books can be removed because they are “pervasively vulgar” or “educationally unsuitable.” There is no attempt to explain what these mean and they are mile wide holes that a creative school can drive a bus through. The school districts that have lost book banning suits have always failed to hide their true motive. For example, when Olathe, Kansas, schools banned Annie on My Mind in 1993-94, all of the school board testimony, and I’ve read all of their depositions, tried to pretend it was about educational suitability but they readily admitted that the only thing that made this book educationally unsuitable was the fact that it had lesbian teens in it. Being gay was what they believed was educationally unsuitable and the district court correctly held this violated Pico. But most school districts are far more savvy today and are able to hide their real reasons much more effectively. And we live in a time with a much more conservative judiciary with Trump-appointed judges making up something like 25% of the federal judiciary and often drawn from groups with ties to antidiversity and hate groups, such as the Alliance Defending Freedom. Given the weak precedent, ease of creating pretexts within that precedent, and a dangerous judicial climate, many litigators would be unsure if they would win a book banning case.
Litigation is not always about winning in court, however. Lawsuits also bring publicity and pressure down on school districts. A lawsuit is a pain in the ass and will involve dozens of school officials, and all the board of education members, testifying in depositions for hours, collecting documents for discovery, and various other forms of annoying day to day burden for years possibly. (And, if the school loses, it will have to pay the costs of the ACLU’s suit). Lawsuits also bring attention and ridicule. It is unlikely that any of the Board members who voted to ban The Bluest Eye or any of the other books read them and when this attack is on a classic of American literature it is hard to sound intelligent when banning access. Looking like a moron is rarely a fun event, just ask the board that banned for a short time The Invisible Man. This may have a stronger effect because schools rarely want these fights. There is nothing really to win as any actual parent can restrict access to the dangerous books that might corrupt their child with empathy. So schools are more likely to pull back from censorship rather than take on the announce and expense of litigation. It seems this has already had an effect as immediately after the lawsuit the Wentzville Board voted to retain one book and now has reversed itself 5-1 to reinstate The Bluest Eye. The litigation is ongoing because the district also removed, outside of policy, a slew of other books.
So in the end of the day the litigation may work in the way that it can: pushing the district to back down. More than a few districts in this wave of book banning have had opinions from their attorneys noting the constitutional defeats for book banners and warning the district that this could be an expensive choice to attempt. This acts as legal cover for board members who don’t really care about antidiversity goals and just need an excuse to avoid controversy. Hopefully, the Wentzville School District follows this path and reverses its unconscionable book banning.
