Removal of textbooks may be in violation of the 1st Amendment

SALT LAKE CITY (AP) – The Supreme Court has long recognized that students have their own First Amendment rights in school.

Removing books from school libraries, as some parent groups and individuals in Utah have pressured local school boards and administrators to do this school year over what they consider inappropriate content, “may constitute an official repression of ideas, contrary to the First Amendment.” says a new note sent to schools by the Utah Attorney General’s Office.

The memo summarizes current bylaws and case law as district and charter school boards work to either draft or update their library policies and procedures in the wake of requests that schools remove books or other material that some say is not age-appropriate or contains harmful material. It reported Deseret News.

The Utah State Board of Education is continuing work on a draft policy to provide district and charter school boards with a framework for establishing or updating their policies. The Board’s Law and Grants Committee approved a handful of proposals during its meeting at the end of last week and referred the matter to the entire Board. The next ordinary meeting of the Board of Directors is on 2 June and no meeting is expected in July.

Meanwhile, school districts are working to ensure that their practices and policies comply with HB374, sponsored by the rep. Ken Ivory, R-West Jordan, and approved during the 2022 session. The legislation defined certain teaching materials as “sensitive materials” and prohibits them in schools. It also requires schools to include parents who “reflect the community of a school” when deciding whether a teaching material is sensitive.

The legislation also requires the State School Board, in consultation with the Utah Attorney General’s Office, to provide guidance and training to local schools that identify sensitive material.

In an address to the Law and Licensing Committee, Ivory reminded members that lawmakers, with the governor in agreement, declared that pornography is a danger to public health. “I think we should all be involved in ensuring that these public health impacts and societal harms are not borne by our children, that we do not expose them to the risk of these harms,” ​​he said.

He urged the board to “comply with the legislative intent” of HB374. If it does not, “then we will simply have to become more prescriptive at the legislative level,” Ivory said.

Carol Lear, chair of the board’s law and licensing committee, said the board’s work on a model policy is underway.

The memorandum from the Utah Attorney General’s Office, which represents the school board, is “helpful in reminding schools that there are laws and lawsuits that must be followed when maintaining or removing books from school libraries. Students’ First Amendment to Access Certain Library Books and materials can not be decided by the majority of parents in a school, ”Lear said.

The memorandum was prepared by Assistant Attorney General Ashley Biehl in the Office’s Education Department.

The memo quotes Tinker v. Des Moines Independent Community School District, where the Supreme Court considered an Iowa school district’s ban on allowing students to wear black armbands to protest U.S. involvement in the Vietnam War.

The judges concluded in the 1969 decision that students and teachers do not “violate their constitutional rights to freedom of speech or expression at the gate of the schoolhouse.”

The case notes, “The vigilant protection of constitutional freedoms is nowhere more crucial than in the community of American schools.”

While other case law stated that local school boards have a broad discretion to manage school affairs, “such discretion must be exercised in a manner consistent with the transcendent imperatives in the First Amendment.… (T) the special characteristics of the school library make this environment particularly suitable for the recognition of such rights. “

The memo goes on to say that the Supreme Court has stated that “students must always be free to ask, study and evaluate, in order to achieve new maturity and understanding.”

The High Court has described the school library as “the primary place for such freedom,” the memo said.

Ben Horsley said the Granite School District has received a fairly constant number of requests to remove books or other material from schools over the years, but there was a noticeable increase after the Utah Legislative Assembly passed HB374.

Horsley said Granite officials are “eager to get their (AG’s and State Board) insights as we have 32 books that have recently been asked for reconsideration,” he said.

The Granite District has a “robust process that engages parents as part of this process. But in light of HB374 and this new guidance from AG’s office and state board, we’re obviously looking at how it can be rebuilt,” Horsley said.

Horsley said the Granite School District is very diverse and “we want to make sure we meet or provide opportunities for each student.”

At the same time, the school district will comply with state law and its own policies, which state that materials must be suitable for minors, he said.

The Canyons School District received requests late last fall to remove nine books from school libraries. In January, the district implemented its updated “School Library Media Selection and Review” policy, said district spokesman Jeff Haney.

“We moved forward quickly in the autumn to be responsive to our community. We felt then, and still feel, that it was not a problem that could be put on the back burner. We needed a clear, strong policy, and we think , we have achieved … that, ”he said.

Although the district has an updated policy, AG’s note has been “instructive,” he said.

When patrons requested the removal of nine titles from Canyons District school libraries, the district halted the distribution of the titles pending pending the policy update. The books were then evaluated according to criteria set out in the new policy.

“The titles of ‘Lawn Boy’ and ‘Gender Queer’ have been removed from the catalogs, either because they were ‘weeded’ as part of the regular opt-out process performed by librarians or were checked out by a student and never returned. ‘Lolita’ was also checked out by a student and never returned, ”Haney said.

“L8R G8R” has been deselected through the revision process and removed from district catalogs, he said.

Following reviews from teacher-librarians, the following titles will be retained in the catalogs: “Out of Darkness,” “The Bluest Eye,” “Monday’s Not Coming,” “Opposite of Innocent,” and “Beyond Magenta.”

Teacher librarians are currently reviewing six other books in response to community requests for reviews under the new policy, he said.

In addition to case law, the memorandum contains state statutes that define materials that are harmful to minors.

“‘Harmful to minors’ means the quality of any description or representation, in any form, of nudity, sexual conduct, sexual arousal or sadomasochistic abuse when it: 1. overall appeals to minors’ prurant interest in sex.; 2 “is manifestly offensive to current standards in adult society as a whole as to what constitutes appropriate material for minors; and 3. overall has no serious value to minors,” the memorandum states.

The memo says that a book must meet all three factors in order to be considered harmful to minors.

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