School Libraries and the First Amendment

LEGAL BRIEF

An angry parent demands the removal of what she calls “un-American” books from the high school library. Your own school board directs you to eliminate books with diversity/equity/inclusion or LGBTQ themes.

So what are the First Amendment rights of students, librarians, teachers, board members and even the books’ authors? The U.S. Supreme Court took a stab at settling the issue in its 1982 decision in Board of Education v. Pico, involving a constitutional challenge to a New York school board’s removal of certain books it deemed anti-American, anti-Christian, anti-Semitic and “just plain filthy.”

A majority of the justices hearing the case could not agree on how much (or even if) the First Amendment restricted school officials’ discretion, so the decision has no binding precedential effect and, since then, the lower federal courts have been left to develop their own standards. This means that, even though the First Amendment is federal law that one would hope to be applied uniformly nationwide, the interpretation you’re bound by may vary depending on which of 12 federal appeals courts has jurisdiction over your school district.