The Supreme Court has long recognized that students have their own First Amendment rights at school.
Removing books from school libraries, as some parent groups and individuals in Utah have urged school boards and local administrators to do this school year over what they deem inappropriate, “may constitute a formal removal of ideas , in violation of the First Amendment”. says a new memo sent to schools by the Utah attorney general’s office.
The memo summarizes applicable laws and case law as district and charter school boards work to write or update their library policies and procedures in response to requests from schools that are removing books or other materials that some believe are not age appropriate or contain harmful materials.
The Utah State Board of Education continues to work on a draft policy to provide district and charter school boards with a framework for creating or updating their policies. The board’s laws and licensing committee deadlocked on a handful of proposals at its meeting late last week and referred the matter to the full board. The next regular board meeting is June 2 and no meeting is scheduled for July.
Meanwhile, school districts are working to ensure that their practices and policies are consistent with HB374, sponsored by Rep. Ken Ivory, R-West Jordan, and passed in the 2022 session. The legislation defines certain educational materials as “sensitive materials” and bans them from schools. It also requires schools to include parents who “reflect a school’s community” when determining whether educational materials are 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 to identify sensitive materials.
Speaking to the Laws and Licensing Committee, Ivory reminded members that lawmakers, with the Governor’s concurrence, have declared pornography a danger to public health. “I think we should all be involved in making sure that these public health impacts and societal harms are not borne by our children, that we are not exposing them to these harms,” he said.
He urged council to “respect the legislative intent” of HB374. If not, “then we’ll just have to become more prescriptive at the legislative level,” Ivory said.
Carol Lear, chair of the council’s laws and licensing committee, said the council’s work on a model policy is underway.
The memo from the Utah Attorney General’s office, which represents the school board, is “helpful in that it reminds schools that there are laws and court orders that must be followed to keep or remove books from school libraries. The First Amendment rights of students to have access to certain books and library materials cannot be decided by a majority vote of parents at a school,” Lear said.
The memo was written by Assistant Attorney General Ashley Biehl of the office’s education division.
The note quotes Tinker v. Des Moines Independent Community School Districtin which the Supreme Court addressed an Iowa school district’s ban on allowing students to wear black armbands to protest America’s involvement in the Vietnam War.
The justices concluded in the 1969 ruling that students and teachers do not “relinquish their constitutional rights to free speech or expression at the school gate.”
The case notes that “nowhere is the vigilant protection of constitutional liberties more vital than in the American school community.”
While other case law has determined that local school boards have broad discretion to manage school affairs, “such discretion must be exercised in a manner that respects the transcendent imperatives of the First Amendment.” … (T)he particular characteristics of the school library make this environment particularly appropriate for the recognition of these rights.
The memo goes on to say that the Supreme Court said that “students should always remain free to inquire, to study and to assess, to acquire new maturity and understanding.”
The high court described the school library as the “primary place of this freedom”, the memo said.
Ben Horsley said the Granite School District had received a fairly consistent number of requests to remove books or other materials from schools over the years, but there was a noticeable increase after HB374 was passed by the Utah Legislature.
Horsley said Granite officials are “looking forward to getting their ideas (from the AG and the state board) because we have 32 books that have recently been requested for reconsideration,” he said.
Granite District has a “robust process that involves parents as part of this process. But we’re obviously looking at, in light of HB374 and these new guidelines from the AG’s office and the state board, how that might be rearranged,” Horsley said.
Horsley said the Granite School District is very diverse and “we want to make sure we meet or provide opportunities for every student.”
At the same time, the school district will comply with state law and its own policies that state that materials must be suitable for minors, he said.
The Canyons School District received requests to remove nine books from school libraries late last fall. In January, the district implemented its updated “School Library Media Selection and Review” policy, said district spokesperson Jeff Haney.
“We reacted quickly in the fall to listen to our community. We believed at the time, and continue to believe, that this was not an issue that could be put on the back burner. We needed a clear and strong policy, and we think we got it,” he said.
Even though the district has an updated policy, the AG’s memo was “informative,” he said.
When patrons requested the removal of nine titles from Canyons District school libraries, the district suspended circulation of the titles pending a policy update. The books were then evaluated according to the criteria established in the new policy.
“The titles of ‘Lawn Boy’ and ‘Gender Queer’ have been removed from the catalogues, either because they were ‘weeded’ as part of the regular deselection process carried out by the librarians, or because they were verified by a student and never came back. ‘Lolita’ was also checked out by a student and never came back,” Haney said.
“L8R G8R” was deselected through the review process and removed from district catalogs, he said.
After proofreading by the teacher-librarians, the following titles will be retained in the catalogues: “Out of Darkness”, “The Bluest Eye”, “Monday’s Not Coming”, “Opposite of Innocent” and “Beyond Magenta”.
Teacher-librarians are currently reviewing six more books in response to community requests for review under the new policy, he said.
In addition to case law, the memo includes state laws that define materials that are harmful to minors.
“‘Harm to minors’ means that the quality of any depiction or depiction, in any form, of nudity, sexual conduct, sexual arousal or sado-masochistic abuse when it:
- taken as a whole, appeals to minors’ lustful interest in sex;
- is patently offensive to prevailing norms in the adult community as a whole regarding what is appropriate for minors; and
- taken as a whole, is of no serious value to minors,” the memo reads.
The memo states that a book must meet all three factors to be considered harmful to minors.