Jill K. Osborne
Mark Twain’s Adventures of Huckleberry Finn is widely considered one of the great American novels. It appears on school reading lists all over the country for its depiction of the plight of the slave. However, it also appears on another list – a list of books parents want banned due to its use of vernacular common to the era but considered profane today. Every year, schools are collectively faced with hundreds of requests from parents, public officials, and activists pressing for the removal of books they deem inappropriate. Among those books most commonly opposed in schools are Catcher in the Rye, Hamlet, and The Scarlet Letter.
Across the United States, parents and other groups are placing increased pressure on school officials to tailor school libraries and curricula to reflect their values and beliefs. These developments are recent manifestations of a debate as old as American schools themselves – a controversy that centers on the competing interests between family and community to control the content of a child’s education. On one hand, advocates of banning books argue that being exposed to inappropriate material may harm students. By contrast, opponents insist that censorship of books and other curriculum material violates children’s First Amendment right to access information.
Objections to library and curriculum content present an enormous challenge for school officials. These situations force educators to consider parents’ legitimate pedagogical concerns while, at the same time, protecting students’ academic freedom. Furthermore, it is worth noting that courts are more likely to protect school library materials over books taught as part of the curriculum. Although courts generally defer to school officials when making curriculum decisions, most judges agree that there is a limit. This article will examine the legal trends of censorship in schools and provide guidelines for creating a policy to address challenges to content.
Legal Precedent
Courts have generally been reluctant to wade into educational decisions. Judges prefer to leave these matters to experts such as school boards and administrators. However, courts will occasionally intervene if school decisions infringe on the First Amendment rights of students or parents. Following the U.S. Supreme Court’s landmark decision in 1969 that found students do not “shed their Constitutional rights to freedom of speech or expression at the schoolhouse gate,”1 the Court also decided that the First Amendment imposes limitations on a school board’s ability to remove books from a school library.
Board of Education v. Pico
In 1982, the U.S. Supreme Court examined whether a school may remove books from a library based on ideological concerns. In that case, board members of the Island Trees School District decided to remove certain books from the school library after attending a politically conservative conference, which denounced the books. The Board then appointed a “Book Review Committee,” consisting of parents and school staff, to review the books and recommend to the Board whether the books should be retained. The Committee ultimately recommended that the majority of the books be retained. The Board subsequently rejected the Committee’s recommendation, without giving any reason for their decision. Parents from the school district then filed suit against the Board.
The U.S. Supreme Court in Board of Education, Island Trees Free School Dist. No 26 v. Pico, 457 U.S. 853 (1982) found that the school board had overstepped its authority in removing the books. The Court stated that “local school boards may not remove books from school library shelves simply because they dislike ideas contained in those books and seek their removal to prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.” The Court emphasized that the students have a First Amendment right to access information that cannot be subrogated by ideology. Providing insight on how to deal with these issues, the Court stated that a basis for resolving censorship conflicts over school materials could rest upon the use of “established unbiased procedures for the review of controversial materials” at the local level.
Forming a School Policy
Rather than waiting until schools are confronted with a difficult issue, educators should consider adopting a written policy to effectively handle curriculum disputes. Schools should require that the challenge be in writing and set a standard time frame to assess it. Challenges should then be sent to a standing review committee, including professionals from the community. The school should then establish helpful guidelines for committee members to follow when making a decision.
Schools should require the committee to read challenged materials and then issue a written opinion that explains, with reference to the guidelines, the committee’s decision to retain or ban a book. If the policy allows challengers to appeal a board decision to a school administrator, the administrator must adhere to the appeal policy in a consistent manner that eliminates any appearance of impropriety or bias.
Schools should also consider steps short of banning material from the library entirely. An effective policy might first allow for limiting access to the reading material by creating age restrictions or requiring parental consent for a certain book. Additionally, schools should not restrict the material while the appeal is pending. A good policy will be transparent and provide information to parents, media, and others. Due to the complexity of these issues and the potential for litigation, all school policies should be formed in consultation with legal counsel.
Children’s Internet Protection Act
School officials should also be aware of the Children’s Internet Protection Act (CIPA) and its effect on school material. CIPA is a federal law designed to address concerns about access to offensive content over the Internet on school and library computers. It imposes requirements on any school that receives funding for Internet access through the E-rate program – a program that makes technology more affordable for eligible schools. Under CIPA, schools and libraries may not receive discounts offered by the E-rate program unless they have an Internet safety policy that includes technology protection measures. These protection measures must block or filter obscenity, child pornography, and harmful material. Before adopting these policies, schools must provide reasonable notice and hold at least one public hearing or meeting to address the proposed policy changes.
Schools, subject to CIPA, are also required to adopt and enforce a policy to monitor the online activity of minors. Schools must adopt and implement an Internet safety policy addressing (1) children’s access to inappropriate matters over the Internet; (2) the safety and security of children when using electronic mail, chat rooms, and other forms of direct electronic communications; and (3) unauthorized access, including “hacking,” and other unlawful activities by minors.
Lessons Learned
Courts have held that schools are legally responsible for library and curriculum content. Although courts generally give broad discretion to school boards and administrators when making decisions about education content, school personnel should adopt a policy and be prepared to follow it. When creating these new policies, schools are encouraged to contact an attorney.
This article is intended to be a general discussion of challenges to curriculum content and is not intended to provide legal advice regarding a particular situation that may arise.
Reference
1. Tinker v. Des Moines, 393 U.S. 503 (1969).
Jill K Osborne, Esq., is a partner with the law firm of Udall, Shumway & Lyons. Jill’s practice is primarily focused in school law and employment law. She can be contacted at jko@udallshumway.com or (480) 461-5300.
