As book ban litigation increases, arguments often involve discrimination versus parental rights
America is no stranger to book bans. The first one documented happened in 1637, when the Puritans banned New English Canaan by Thomas Morton, one of their critics.
PEN America has counted 16,000 book bans in U.S. public schools since it first started tracking them in 2021; and it says there were more than 10,000 instances of book bans in U.S. schools in the 2023-2024 school year alone.
Over the years, banned titles have included Kurt Vonnegut’s Slaughterhouse-Five, Stephen Chbosky’s The Perks of Being a Wallflower and Toni Morrison’s Beloved.
States that have the most removals are Florida, which removed 4,500 books from school libraries in 2023-2024; and Iowa, which removed 3,600, according to data from PEN America. The writers’ association focuses on supporting freedom of expression.
At least 130 state bills regarding the removal of books from public schools and libraries were introduced in the latest legislative session, according to the American Library Association. Anti-censorship groups and publishers are challenging various states’ bills in court.
Parents need more control over what their children have access to in public schools and libraries, supporters argue. They also say that not allowing their children to opt out of reading certain books violates their free exercise rights.
Meanwhile, those opposed to book prohibitions say the book bans violate First Amendment rights. Opponents also describe the actions as racist and discriminatory, as many of the books removed feature people of color and LGBTQ+ themes.
“In the past, book ban decisions have usually taken place at the local level—where the community at least has a chance to weigh in and oppose the removal of valuable books from their schools and community libraries,” says Lee Rowland, executive director of the National Coalition Against Censorship. “Now, however, we are seeing a much wider assault on the freedom to read, including from statehouses.”
Others see things differently.
“There’s broad consensus that some sexually explicit books are not age-appropriate for minors in school libraries,” says Jeremy Samek, senior counsel at the Independence Law Center, a religious rights firm.
“Should books with graphic sexual imagery—like A Game of Thrones: The Graphic Novel—or sexually explicit written content, such as romance novels, take up room on school library shelves and be made available for schoolchildren? These books may not rise to the level of criminal obscenity, but many would agree they’re not age-appropriate. Schools need clearer and higher standards,” Samek says.
Under President Donald Trump’s administration, the Department of Education’s Office for Civil Rights dismissed 11 complaints related to book removals, saying in a Jan. 24 news release it was ending “Biden’s book ban hoax.”
The agency also rescinded department guidance that held the removal of books from school libraries could violate civil rights laws, according to the release.
Library laws
In 1982, a landmark U.S. Supreme Court case, Island Trees School District v. Pico, established students’ First Amendment right to access information in library settings.
“But despite that precedent, this administration has doubled down on banning books—recent executive orders have called book bans a hoax, explicitly targeted ideas and words themselves, and led to the removals of books from military library shelves,” Rowland says.
In Iowa, a book ban is being challenged in two federal lawsuits. The law, passed in 2023, prohibits schools from using instruction materials, including books, that discuss sexual orientation or gender identity for students in kindergarten through sixth grade. The law also bans for all grades books containing descriptions or depictions of sex acts.
One action was brought by major publishing houses, authors and educators; the other was filed on behalf of the LGBTQ+ youth advocacy group Iowa Safe Schools.
The Southern District of Iowa enjoined the law in December 2023, and in August 2024, the 8th U.S. Circuit Court of Appeals at St. Louis lifted the injunction with directions that the district court reconsider the law’s constitutionality in light of the July 2024 opinion in Moody v. Netchoice, a Supreme Court case addressing the First Amendment and social media platforms.
The Iowa law was implemented in schools. In March, the district court issued an injunction in the publishers’ case, enjoining the enforcement of the school library book bans; in May, the district court issued another injunction enjoining the state from enforcing restrictions of programs related to gender identity or sexual orientation on the basis that such action would unconstitutionally restrain speech outside of mandatory classroom curriculum. Appeals for both lawsuits are pending in the 8th Circuit.
In 2024, the New Orleans-based 5th U.S. Circuit Court of Appeals upheld a lower district court’s ruling that blocked Texas’ Restricting Explicit and Adult-Designated Educational Resources Act, which required school book vendors to rate the content for what is deemed sexually explicit material. The court ruled the sexual-content ratings for public schools violated the First Amendment.
In May, an en banc 5th Circuit tossed the First Amendment claims by library patrons in Llano County, Texas, who argued that they had a right to receive information under the free speech clause.
“It is one thing to tell the government it cannot stop you from receiving a book. The First Amendment protects your right to do that,” Judge Stuart Kyle Duncan wrote in a portion of his May 23 majority opinion. “It is another thing for you to tell the government which books it must keep in the library. The First Amendment does not give you the right to demand that.”
According to Samek, laws like those in Iowa and Texas help protect children and parents’ rights.
“Those supporting this legislation advocate for curriculum transparency and parents’ rights to exercise control over educational materials for their children, particularly in relation to explicit content,” he says. “Some further argue that state governments have the authority to define inappropriate content and control access to it to protect children.”
Tasslyn Magnusson, who has been tracking books removed from schools, serves as a senior advisor at PEN America’s Freedom to Read program.
“It’s mostly new books, written by [people of color] and LGBTQ+ authors. These are targeted attacks,” she says. “The book bans are closely aligned with Christian nationalism and a number of more conservative extremist movements.”
At the 2024 midyear meeting, the ABA House of Delegates passed a resolution opposing policies that restrict teaching about the experiences of marginalized communities in classrooms, including denying access to books reflecting their voices.
States such as New Jersey, Illinois, Minnesota and Oregon have passed laws that ban book bans. In June, the Supreme Court found in Mahmoud v. Taylor that a school board policy prohibiting parents from opting their children out of lessons involving books featuring LGBTQ+ characters was likely unconstitutional because it placed a burden on religious exercise. The case was brought by the Becket Fund for Religious Liberty on behalf of parents from Montgomery County, Maryland, and argued that parents should receive notice and the right to opt their children out of these lessons.
According to a Supreme Court filing by the petitioners, books approved for the Montgomery County language arts curriculum included Pride Puppy, which tells the story of a family losing its dog at a gay pride parade; and Uncle Bobby’s Wedding, where the protagonist attends a same-sex wedding.
The district court had denied the parents’ request for a preliminary injunction, which the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals affirmed in a 2-1 decision. The majority found that the petitioners had not demonstrated a free-exercise burden, because being denied an opt-out did not force them to change their religious beliefs or conduct.
Write a letter to the editor, share a story tip or update, or report an error.
