Utah Attorney General Provides Legal Framework to Fight Book Bans

In response to a new Utah law regarding "sensitive materials in schools," the state's attorney general's office issued an official memorandum that outlines the constitutional protections for students and library materials. Educators can use it as a tool to push back against district attempts to remove books from the shelves.

Librarians and their fellow educators who are fighting censorship in their school districts just received a little help from Utah Attorney General Sean Reyes.

The AG’s office released a memo as a requirement of new state law, H.B. 374, which addresses “sensitive materials in schools.” The official memorandum was to provide guidance for school boards and superintendents to better understand the laws involving school libraries.

The key takeaway from the memo: There are constitutional protections for students and school library materials. And constitutional protections are not just relevant to Utah, but to the entire country.

EveryLibrary provided this explanation on its website: “While this document was published by the Utah Attorney General, it likely has great value to librarians, parents, teachers, and public school administrators, across the country because state statutes related to obscenity and “harmful to minors”, while they may differ in some details, are fundamentally similar to each other in that they are ultimately constrained by and must reflect the free speech protections that exist in federal law. States are free to protect more speech than the United States Constitution affords, but they cannot protect less.”

This memo is now a tool that can be used at the state and local level to provide legal grounds and First Amendment case law to protect against attempts to remove books from library shelves, according to EveryLibrary associate director Peter Bromberg. Those previously armed with only their reconsideration policy and community allies now have an easy-to-follow document to present the legal arguments against removing books from school libraries. (Books that are part of a class curriculum have fewer protections, as the memo notes.)

There are many strategic ways for educators and community members to use this document, according to Bromberg.

“You can present this and say, ‘Here's a summation of what is and is not acceptable,’” he says. “Someone could take this and bring it to their own attorney general's office. They could bring it to the school board's legal counsel and say, ‘How does this apply or not apply to what our school board is doing?’ [Or] you can ask the school board ‘What does your legal counsel say about this?’ There are all different ways in which it can be applied.”

The memo answered seven questions, and each response buoyed the case for keeping books on the shelves. Its answers remind people of the famous quote from Tinker vs. Des Moines decision, where the Supreme Court ruling declared that students and teachers did not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

EveryLibrary summarized the Utah memo’s key points in its answers to each question.

Do students have legal rights regarding access to school library materials? “ Yes. The United States Supreme Court (“SCOTUS”) has an extremely long history of recognizing that students have their own First Amendment rights in school. The removal of books from a school library can constitute an official suppression of ideas, in violation of the First Amendment.”

What is the legal standard for assessing what is harmful to minors? The memo describes Utah state law, which mirrors the “Miller Test,” [which is outlined below] and strongly points out that ALL of these criteria must be met to reach the level of something that can be prohibited. (UCA) 76-10-12016 defines harmful materials thusly:

  • taken as a whole, appeals to the prurient interest in sex of minors;
  • is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
  • taken as a whole, does not have serious value for minors. Serious value includes only serious literary, artistic, political or scientific value for minors.

Are library books and books assigned as a part of classroom curricula subject to the same constitutional standard? “No. Library Books are given significantly wider protection under the First Amendment than books that are assigned as a part of school curriculum.”

What factors may NOT go into a book removal? “Books may not be removed because they contain ideas that local school boards disagree with based upon: politics, nationalism, religion, or other matters of opinion”

Does HB 374 change the standard for school library books? “No”

Are library books included in HB 374? “Yes, though HB 374 does not change the standard that is used to assess school library books”

What should be done with a book while it is pending review? There is no specific law stating whether books must be left in the library when facing a challenge. However, leaving books on the shelves while pending review helps to ensure that schools are not engaging in prior restraint… SCOTUS has a long history of disfavoring prior restraints.”

As an added benefit, no one can claim the memo resulted from partisan politics, Bromberg adds.

“This is a really super red state, and this is a super red AG issuing this very, very clear memo that says, ‘Sorry, you can't just pull this stuff off the shelf. Sorry, when you say porn, this doesn't mean the legal definitions of harmful to minors or obscenity,’” says Bromberg. “Right down the list. 1-2-3-4-5-6-7.”

As positive as it is to have this solid legal backing in the fight against book banning, worries remain. Considering the current makeup and recent decisions by the Supreme Court, if a new case dealing with book removal ever made it that far, it is possible the justices could overrule precedent and peel away some students’ rights.

“I'm certainly concerned about it,” says Bromberg.

Pico, which took on the First Amendment issue of school districts removing books from the library is "one of the bedrock cases" for students First Amendment rights and attempts at book banning.

But Pico, which was decided 40 years ago this month, was a 5-4 decision with no majority opinion, which means it doesn't set a strong precedent.

If a case against a school district’s removal makes it to the current Supreme Court, “I think the Supreme Court could do some damage to it, certainly around students’ rights to First Amendment protections,” he says. “It would be a little harder to chip away at the protections of the materials on the shelves.

“It's something I've been thinking a lot about."

To take a case to the Supreme Court typically takes years and the kind of money that a local school district wouldn’t have—or couldn’t put its tax dollar funding toward—for extensive legal action. A conservative political organization is unlikely to want to fund the fight, because they are using books as a wedge issue.

“It's a winning issue, they think, for the midterm elections,” Bromberg says.

The talking points of increasing parental control and claiming that democrats trying to indoctrinate kids with porn and books that include LGBTQIA+ people, or discussions of racism, are fuel for the fundraising fire. With each new title held up and vilified at a local school board meeting comes donations to the nearest politically-aligned candidate.

Parents, though, already have the right to know what their children are reading and limit it if they so choose. But they cannot arbitrarily take away the First Amendment rights to materials for the rest of the students in the school or district. Neither can educators, administrators, or school board members. And if anyone has a question—or seven—about that, the Utah attorney general has provided very clear counsel.

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