Excerpted From: Amy Anderson, A Pleasure to Burn: How First Amendment Jurisprudence on Book Banning Bolsters White Supremacy, 49 Mitchell Hamline Law Review 1 (February, 2023) (192 Footnotes) (Full Document)


AmyAndersonPublic school libraries are facing an unprecedented number of attempts to ban books from their shelves. The mounting pressure levied by parents, community members, and political groups against school administrators threatens to overwhelm attempts to enhance students' access to information--particularly information that does not fit within the framework of assumed “community values.” The majority of challenged titles are written by LGBTQ+ authors and authors of color, and typically cover topics including race, sexuality, and counternarratives to the traditional middle-class white America experience that is often portrayed in literature written for young audiences.

This Article will discuss efforts to ban books from public school libraries and how such bans violate students' First Amendment rights. Specifically, it will discuss how book banning restricts students' rights to free speech and to receive information, and it will argue that current jurisprudence allows for book bans motivated by political and performative objections made in bad faith in an attempt to dictate what a “proper” school community looks and thinks like. This construction of the “proper” student body champions a white, straight, cisgender, and homogenous learning environment as normative and preferable while it perpetuates the subjugation of Black, Indigenous, and other Persons of Color (“BIPOC”) and the LGBTQ+ community.

This Article argues book bans are one of many tools used to uphold tenets of white supremacy that are inherent in the American public school system and posits that access to diverse texts is critical to upholding the ideals of the First Amendment while also dismantling systemic harms that disproportionately impact BIPOC communities. It begins in Part II with a brief review of precedent regarding free speech in public schools and then, in Part III, discusses the standard of review proposed by the plurality decision in Pico. Part IV reviews the malleability of the standard proposed by the Pico plurality, and as adopted by lower courts, related to book bans from public schools. Part IV further discusses how ill-defined precedent regarding book bans permits school boards and lower courts to contort their supposed justifications for removing a book from the school library.

These justifications and removals of text are how white supremacy maintains control in the public school system. Part V concludes that it is essential to defend students' access to diverse texts in the school library to resist racial violence inherent in the public school system and proposes a pragmatic (if imperfect) approach to a review of challenged books.

[. . .]

Efforts to ban books from school libraries are at an all-time high, and books challenging deeply held beliefs that America and its government are race-neutral and that all citizens are equal under the law are particularly at risk for removal from library shelves. BIPOC students do not have the advantage of definitive Supreme Court precedent to combat the removal of materials that challenge dominant narratives of a traditional, middle-class, white America.

When presented with the opportunity to clearly define the parameters of a student's right to access information in the school library, the Court instead provided ill-defined criteria for determining the constitutionality of book removal without any precedential value. The decision left lower courts to make individualized determinations of whether challenged books are “educationally unsuitable” or “pervasively vulgar” based on their own interpretation of these terms. The biases and presumptions of white normativity within the American educational system and the judiciary inevitably places materials written by BIPOC authors and materials that challenge white value systems at a disadvantage under these standards. Community standards tend to be reference points for educational suitability and vulgarity, but they carry a long history of unchallenged racism. Works that do not fall under the traditional interpretations of what is educationally valuable and what is appropriate for students to read and discuss are presumed vulgar and unsuitable at the outset.

Considering these inherent biases, it is imperative that diverse texts are available to BIPOC and LGBTQ+ students in their school libraries so they can achieve self-actualization and learn how to challenge the tenets of white supremacy. Diverse texts that contradict traditional American history and social studies courses give students the tools to advocate for themselves in the classroom and in the future. At a minimum, librarians should be trusted to manage their collections and navigate the book acquisition process. Restrictions to accessing particular books should be limited on a student-by-student basis in order to circumvent a parent or community member imposing their own sensitivities onto the student body as a whole.

White supremacy is the foundation of public education in America, but challenges to oppressive assumptions are made in children's books each day. Access to materials that challenge white supremacy and white normativity are critical to effect change in education for all students. Depriving students access to those texts under the guise of concern for “educational suitability” and “pervasive vulgarity” reiterates white normativity and resists necessary change. “Books--all kinds of books, expressing all kinds of views--are not a luxury but a necessity. They contribute to the strength of America .... challenge our convictions and our settled ways of thought and make us learn not only what we believe but why we believe it.” American public schools are long overdue for a challenge to settled ways of thought, and diverse texts with counternarratives are exactly the challenge public schools need.