The United States has become a country divided on important issues of K-12 education, including which books students should be able to read in public schools.
Efforts to ban books from school curricula, remove books from libraries and maintain lists of books that some consider inappropriate for students are increasing as American views become more polarized.
These types of behaviors are called “banned books.” They are also often labeled “censored”.
But the concept of censorship, and the legal protections against it, are often highly misunderstood.
On the right side of the political spectrum, most book bans are taking place, in the form of school boards removing books from classroom curricula.
Politicians have also proposed legislation to ban some books that lawmakers and parents consider too mature for school-age readers, such as “All Boys Are Not Blue,” which explores queer themes and agreeable themes. Nobel laureate Tony Morrison’s classic The Bluest Eye, which includes themes of rape and incest, is also a common target.
In some cases, politicians have proposed criminal prosecution of public school and library librarians for keeping the books in circulation.
The American Library Association says most of the books that will be banned in 2021 “are written by or about black or LGBTQIA+ people.” State lawmakers are also targeting books they believe will make students feel guilty or distressed because of their race , or books that imply that students of any race or gender are inherently paranoid.
There have also been some attempts on the political left to ban books, as well as remove books from school curricula that marginalize minorities or use racially insensitive language, such as the popular To Kill a Mockingbird.
Whether these efforts are constitutionally reviewed is a complex question.
The First Amendment protects individuals from government “denial of freedom of speech.” However, some may argue that government actions of censorship – especially those related to schools – are not always neatly categorized as constitutional or unconstitutional, since “censorship” is a colloquial term, not a legal term .
Some principles can clarify whether and when a banned book is unconstitutional.
Censorship is not unconstitutional unless the government does.
For example, if the government tried to ban certain types of protests based solely on the protesters’ views, that would be an unconstitutional restriction on speech. The government can’t make laws or allow lawsuits to prevent you from placing specific books on your bookshelf unless the content of those books falls into a narrow category of unprotected speech, such as obscenity or defamation. Even these unprotected categories are defined in a precise way, still very protective of speech.
However, the government may make reasonable regulations to limit “when, where or how” you speak, but generally it must do so in a content- and viewpoint-neutral way. Therefore, the government cannot restrict an individual’s ability to make or listen to speeches based on the subject of the speech or the views expressed.
If the government did attempt to restrict speech in these ways, it would likely constitute unconstitutional review.
what is not unconstitutional
Conversely, when private individuals, corporations and organizations formulate policies or engage in activities that suppress people’s ability to speak, those private actions are not unconstitutional.
The general liberty theory of the constitution considers liberty in the context of government restrictions or prohibitions. Only the government has a monopoly on the use of force to force citizens to behave in one way or another. Conversely, if private companies or organizations are lukewarm about speech, other private companies can experiment with different policies, giving people more options to speak or act freely.
Still, private behavior can have a significant impact on a person’s ability to speak freely and the generation and dissemination of ideas. For example, book burning or private universities punishing teachers for sharing unpopular ideas hinder free discussion and the free creation of ideas and knowledge.
When schools can ‘ban’ books
It is difficult to determine whether the current school ban is constitutional. Why: Courts’ analysis of decisions made in public schools differs from scrutiny in nongovernmental settings.
In the words of the Supreme Court, control of public education is largely in the hands of “state and local authorities.” The government has the power to decide what is right for students and thus the curriculum in schools.
Students, however, retain some First Amendment rights: Public schools may not censor a student’s speech on or off campus unless it causes “serious damage.”
But officials can control the school’s curriculum without violating the free speech rights of students or K-12 educators.
There are exceptions to the government’s power over school curricula: For example, the Supreme Court ruled that a state law that bars teachers from covering evolutionary topics is unconstitutional because it violates the First Amendment’s founding clause, which prohibits the state from sanctioning a particular religion.
School boards and state legislators often have the final say on what classes are taught in schools. Unless states’ policies violate some other provision of the Constitution—perhaps protections against certain types of discrimination—they are generally constitutionally permissible.
Schools with limited resources can also decide for themselves which books to add to the library. However, several members of the Supreme Court wrote that the constitution allows removal only if the books are based on educational adequacy, not because it was designed to deny students access to books that school officials disagreed with.
Banned books are not a new problem in this country—nor is the public backlash against such moves. While the government has discretion to control what is taught in schools, the First Amendment ensures freedom of speech for those who want to protest what is going on in schools.
This article is republished from The Conversation under a Creative Commons license. Read the original text.