Will SCOTUS Give a Constitutional Right to Ban Books?
The Supreme Court (SCOTUS) just granted review in a case that has the potential to mandate book bannings and, even more worrying, giving total control of public school curriculum to religious extremists. The fact that the Court is dominated by a 6 member Republican supermajority does not give me much hope. Mahmoud v. Taylor has the potential to devistate any hope for inclusive education going forward.
The case is simple for anyone familiar with public education. The reality is that despite conservative moral panic talking points, most public education hasn’t changed a whole lot from what we remember: America is a triumphant nation of ultimate equality and liberty, literature is written mostly by the masters of the “canon” (who also tend to be dead white dudes), and gay people exist in some theoretical space but not in the classroom. But some districts, mostly larger and more diverse, have adopted some better practices that gradually includes other identities, voices, and in the case of history, actual history.
Mahmoud comes from Montgomery, County, Maryland just outside Washington, D.C. Serving 160,000 students the District had the crazy idea that it should provide education that included the reality of the world their students live in. For the plaintiffs in this lawsuit, this is all about LGBTQ people. You see, the school approved various books for each grade level that could be kept in classroom libraries for student use either as recreation or free reading assignments as well as for assignments in class. (The books are listed here for K-8). And for younger classrooms teachers could even read picture books that depicted queer people existing to classes. Teachers were not required to use any book in particular and were instructed carefully to respect dissenting student’s beliefs while emphasizing respect for others. Now to most people this isn’t a shocking form of education. In a district of any size, there are going to be LGBTQ parents, students, community members, and mentioning that they exist is not only reasonable but should be mandatory if one believes education is meant to prepare students for the real world. But to religious conservatives, especially the Christian Right, this is unacceptable.
The basis of the lawsuit is simple: the plaintiffs - a mixed religious group though the lawsuit is organized and funded by a Christian Right group - have a parental right to control their child’s upbringing and to bring them up in their religious faith that teaches queer people are evil. They, sadly, do have this right but it goes further. As a corollary to parental and religious freedom rights, they assert a right to have notice of lessons/content that offends their religious beliefs and a right to opt their child out of such material. After the school district refused the plaintiffs sued and the two lower federal courts both refused to issued a preliminary injunction. (To lawyers this is an important point: the procedural posture. I’ll come back to this in a minute). The lower courts correctly held, according to decades of precedent, that there is no religious freedom to be protected from exposure to ideas one doesn’t like. So long as the school doesn’t indoctrinate or coerce students to accept an idea, it is fine to teach it. The problem is that for Christian Right adherents - I can’t speak as well for other conservative religious traditions but I suspect they are similar - there is no education, only indoctrination. Children are to be told TRUTH and that TRUTH is absolute and unerring. So any lesson that is a violation of such TRUTH must be evil. Learning that queer people exist is a violation of that truth and must be prevented. I mean, the kids will still be in school where queer people exist but that doesn’t matter to them.
So why does this case scare me so much? Well, the precedent is so clear and well-settled that the only reason to take it is if there are five votes to adopted the plaintiff’s theory. Now a lawyer night respond that this isn’t that big a deal. This is where procedural posture comes in. The case is at a preliminary stage where the only question is whether a preliminary injunction will be issued against the school. Law nerds will tell you that a higher standard will only require the school to demonstrate it can pass strict scrutiny, this means that the school would have to show a compelling state interest and that its adopted the least restrictive means. Schools could still justify this and win so a SCOTUS decision wouldn’t implicate inclusion or anything else.
The problem is that this ignores the real world, which lawyers and law professors always struggle with. The entire reason the Montgomery County stopped providing opt outs is because they became impossible to offer and run a school. Imagine being a teacher and having to remember every child’s religious faith and what they might object to. This one doesn’t like mention of queer people, another hates the idea of interracial marriage, this one objects to any mentions of Muslims or Jews or whatever. Under an opt out program you have to remember not only every time a curriculum lesson comes up but every time a question is asked by other students. “You mentioned married fathers and mothers but my aunts are married, what about them” and responding “Oh Jimmy, Jane, Sarah, and Karen, could you leave the room.” That is impossible to run. Further, if you are talking about planned curriculum, teachers have to provide alternative assignments and someone has to supervise the students doing that. How is a biology or physics teacher going to opt out a student from the basic scientific reality of the creation of the universe and then test students?
“The Parents do not challenge the Board’s adoption of the Storybooks or seek to ban their use in Montgomery County Public Schools.” So declared the Fourth Circuit Court of Appeals. This is technically true in the sense that nowhere in the legal paperwork does a demand for banning books appear. But it is an idiotic statement in the real world. The goal of these plaintiffs is not actually to opt out their students, it is to make the system so burdensome that schools give up on inclusive education. Sure, a school might be able to defeat a lawsuit arguing that students should be exempted from learning that Black folk are equal, or that queer people exist, but the time and expense of that lawsuit, to say nothing of broader political pressures, will lead it to risk aversion. It’s easier to just stop trying. Removing inclusive educational lessons and returning to the old way of teaching white folk history and literature with a few MLK quotes thrown in sans his radical politics.
Sadly I don’t hold out much hope for a good outcome to this case. Increasingly it appears that the majority of SCOTUS thinks that living in a modern multicultural democracy is unfair to (conservative) religious folk. Mahmoud will be a step towards trying to eliminate that multicultural democracy in public education.
