Some thoughts on the flurry of efforts to remove* books and materials from school libraries and curricula.
[*] Some people are upset about the use of the word “ban” in this context since the books remain available from other sources. That is a dumb argument, but I do not feel like fighting it.
This offers an opportunity to revive and underrated William Brennan First Amendment opinion–Board of Island Trees v. Pico. A plurality (Brennan for Marshall, Stevens, and most of Blackmun) held that the First Amendment limits school power to remove materials from the library based on disagreement with the content or ideas expressed in those books. The Court is more deferential to school boards than it was in 1982, so perhaps this will not fly. But it is an argument worth watching.
Many efforts give parents private rights of action to sue over stuff they do not like. Republican officials laud themselves for following the Texas S.B. 8 trick of using the threat of civil litigation and damages to influence behavior and believing that will avoid federal litigation, while not realizing that not everything is S.B. 8. Schools and school board must make any changes to curricula or libraries, even if those changes are made on threat of a private suit and private liability; that provides a government target for a suit challenging any removal on First Amendment grounds. Imagine anti-Ruby Bridges Parent A threatens a suit because the book makes his child feel bad that his grandparents opposed school integration and the school, fearing liability, removes the book; to the extent that raises First Amendment issues, I-would-like-my-kids-to-know=history parent X who want the book to remain can sue the board to enjoin removal. The latter parent’s First Amendment rights should prevail over the former parent’s state-law rights.
Going further on procedure: Perhaps Parent X can intervene in Parent A’s suit against the school, arguing that X’s kids have a First Amendment interest that will be impaired by the state suit and that the school will not sufficiently vindicate? Alternatively, perhaps Parent X, seeing Parent A’s suit, can ask a federal court to enjoin Parent A’s state lawsuit because the judgment in that suit would compel the government to remove some materials and thereby violate Parent X’s (kids’) rights? This would seem to fit three exceptions to § 2283 (depending on timing) and not be barred by Younger.
Finally, a matter of state procedure: If the removal of Ruby Bridges is required by state law because its presence makes A’s kids feel uncomfortable, does the removal of Ruby Bridges make X’s kids feel uncomfortable, by denying the basic history of Louisiana in the 1950s? Perhaps A and X can sue the school for competing judgments. Or X intervene in A’s suit to protect state-law interests in not having his kids feel uncomfortable. The key to defeating S.B. 8 is that “any person” can include a friendly plaintiff who wants to help Whole Woman’s Health litigate the law. “Discomfort” is a similarly boundless concept that goes both ways and can allow some unexpected claims from unexpected sources.
Posted by Howard Wasserman on February 1, 2022 at 04:11 PM