Book Bans and First Amendment Rights: A Call for Change in School Libraries

As a kid, Captain Underpants was my favorite super hero.

He was a portly school principal who would, at the snap of a finger, enter into a hypnotic trance and become “captain underpants.”

He’d then disrobe, throw on a cape, and go fight villians in his underwear, like “Professor Poopy Pants” or the “Turbo Toilet.”

I remember some teachers discouraging the reading of Captain Underpants because they thought it was inappropriate, but it was never banned from our school libraries. In fact, it was always the centerpiece of every scholastic book fair.

Some books are universally perceived as harmful to children – porn, erotica, etc. That’s why it’s a crime to distribute that type of content to kids.

But what about Captain Underpants? It served no legitimate educational purpose besides merely being readable material. Beyond that, Captain Underpants was just poop and fart jokes. For some reason, there was never a call to ban it.

Today, book bans are becoming more prevalent as political agendas take aim at dismantling LGBTQ messaging. It is suggested that the narratives alone in those publications can have the power to disrupt a child’s sexual development.

But who decides what stays on the shelves?

How do we draw the line betwwn “inappropriate,” like Captain Underpants, and “harmful.” Is there a balance between allowing kids to access meaningful or amusing material while also protecting them from harmul messaging?

Book Bans: A Legal Primer

The banning of books in school libraries is not a new phenomenon, but there has been a sharp increase in this practice over the last few years.

From 2022 to 2023, the number of public school book bans across the country increased by 33 percent. This is not because authors suddenly started publishing more objectionable content. The uptick in book bans is a political tactic to silence LGBTQ voices while also cashing in on the media frenzy.

The Supreme Court weighed in on school book bans and gave a standard for when you can remove a book from a library shelf.

Legal standard for banning books from school libraries

The standard is rooted in a 1982 Supreme Court case called Board of Education, Island Trees Union Free School District No. 26 v. Pico. Rolls off the tongue.

We’re just going to call it Pico going forward.

In Pico, the school board of a public school district in New York removed 11 books from their school’s library, claiming they were inappropriate for children. These books weren’t porn magazines; they were books by Kurt Vonnegut, Richard Wright, Langston Hughes, Bernard Malamud – important works by canonical authors.

Several students sued the school on 1st amendment grounds, and the court made the school put the books back on the shelves.

The court in Pico gave school boards broad discretion to remove books from libraries.

Not unlimited discretion, but broad nonetheless. The court left the door open by saying that a school can’t remove a book just because they disagree with its message, but they can remove it if it is “pervasively vulgar” or “factually inaccurate.”

That 40 year old standard has remained unchanged until this day.

Should The Standard Be changed?

We are living in an era where one person’s way of life, or even just a person’s identity, is viewed as not only “pervasively vulgar” to some people but an affront to God.

We are also living in a world where millions of people, including some United States Congressmen and women, believe that the 2020 election was stolen from Donald Trump, or the world is flat, or that COVID was a Chinese conspiracy to get the upper hand on our economy (or something.)

What we consider “Facts” or “vulgarity” is constantly in flux. The standard for book bans needs to be reformulated in a way that renders it immune from the oscillating cultural tides that considered Langston Hughes “vulgar” and “inaccurate” in the 60’s, but considered Captain Underpants perfectly acceptable in the 2000’s.

     As long as school boards have discretion to ban books, it will always be a political battle. If we try to tailor the standard more narrowly, for example, by changing it to “pervasively vulgar because of X, Y, and Z” or “factually inaccurate based on this standard,” we’re going to keep arguing in circles. We need to agree on what the purpose of a school library is and weigh that purpose against other important factors like a parent’s right to raise their child, or what is in the best interest of children.

            There are some categorical topics that we all agree have no place in a school library. For example, here’s what Massachusetts considers “harmful to minors” when it comes to disseminating books and magazines and pictures:

”Harmful to minors”, matter is harmful to minors if it is obscene or, if taken as a whole, it (1) describes or represents nudity, sexual conduct or sexual excitement, so as to appeal predominantly to the prurient interest of minors.

This would distinguish books that have literary merit but just happen to have a sex scene, as opposed to books whose primary objective is to appeal to our prurient interest, minors or otherwise. And the decisions would be left to the courts, not partisan school boards.

Again, there’s too much wiggle room with words like “obscene.” But it can most likely be agreed upon by reasonable minds that certain books are just porn disguised as literature, and that “predominantly appeal to the prurient interest of minors.”

There’s already a law against giving children books like this. There already are guardrails in place against bad actors flooding schools with pornography. What there is no guardrail for, at present, is a school board banning a book because they find the mere concepts of homosexuality and transgenderism vulgar.

It’s an effort to further ostracize marginalized groups of people, and to get their children to believe that, yes, there is something inherently wrong with being black or being gay or being transgender. We need to protect those groups. And we don’t need to protect our children from being exposed to different beliefs. We need to protect our children from the normalization of hate.

The Bottom Line

Whatever your position is on LGBTQ literature, I think its important to make the distinction between content that’s harmful or vulgar to minors, and content that merely contains different viewpoints.

There are gay people in the world. There are trans people in the world. These are realities, and totally denying the next generation access to information that teaches them about those realities is denying our children a full education because it prohibits them from learning about the world and from developing their own viewpoints about the world.

I think there is a line we can draw between what should and shouldn’t be on the schools bookshelves, but in states like Florida and Texas, book bans have become so broad and discretionary that we may be doing more harm than good.