A federal appeals court ruling will make it more difficult for library patrons to challenge book removal decisions, with the decision involving a public library in Texas but likely applying to school libraries as well.
In its 10-7 decision on May 23, the full U.S. Court of Appeals for the 5th Circuit, in New Orleans, ruled that a library’s decision to remove books may not be challenged under the First Amendment based on library users’ right to receive information.
The decision would appear to apply equally to public libraries and school libraries in the three states in the 5th Circuit—Louisiana, Mississippi, and Texas.
“I expect this opinion to have far-reaching practical consequences on both public and school libraries,” said Katherine P. Chiarello, an Austin, Texas, lawyer who represents the plaintiffs in the suit challenging book removals in Llano County.
The court’s 100-page decision in Little v. Llano County devotes much discussion to school library book challenges. Notably, the court expressly overruled its own 1995 precedent that suggested students could challenge the removal of books in their schools.
“Removing a library book does not deny anyone the chance to read it,” says the majority opinion by Judge Stuart Kyle Duncan, an appointee of President Donald Trump. “The book has not been ‘banned.’ … People who want the book can buy it or borrow it from somewhere else.”
The majority also rejected the U.S. Supreme Court’s 1982 decision in Board of Education, Island Trees Union Free School District v. Pico, which stemmed from a New York state school district’s 1976 removal of books from school libraries including Black Boy by Richard Wright, Soul On Ice by Eldridge Cleaver, and Go Ask Alice by an anonymous author.
Though Pico was a fractured decision lacking a majority opinion, most courts and legal experts believe it places at least some limitations on the authority of schools to remove challenged books, as Education Week explored in 2021 during the latest wave of book challenges.
The 5th Circuit maintained that its stance on Pico dates back to a conclusion it reached in 1982, shortly after the ruling, that Pico decided “neither the extent nor, indeed, the existence of … First Amendment implications in a school book removal case.”
The dissenters said the majority had mistakenly written off Pico and the 5th Circuit’s own 1995 decision in Campbell v. St. Tammany Parish School Board, which found that courts should consider the “substantial motivation” behind school administrators’ decisions to remove books.
“For decades, the Supreme Court’s judgment in Pico—faithfully applied by our court in Campbell—has prevented undue federal court intervention in the operation of libraries,” said the dissent by Judge Stephen A. Higginson, an appointee of President Barack Obama. “Nonetheless, our court today discards the durable Pico decision as essentially meaningless.”
Texas challenge started with a conservative lawmaker’s long list of books he deemed objectionable
In the case from Llano County, northwest of Austin, the focus was on 17 books challenged in 2021 by local residents, partly motivated by Texas state Rep. Matt Krause, a Republican who had issued to school superintendents in the state a lengthy list of books he deemed objectionable because of their focus on sexual or racial issues that might cause students distress “by virtue of their race or sex.”
Residents claimed some books were “inappropriate,” contained “pornographic filth,” and or advanced LGBTQ+ and “CRT” messages, referring to critical race theory.
Among the books removed from the Llano County public library system were In the Night Kitchen, a children’s book by Maurice Sendak; Caste, an examination of caste systems across the world by Isabel Wilkerson; Being Jazz, by transgender student Jazz Jennings; several books for young readers touching on sexuality, including It’s Perfectly Normal; and several books for younger children that are about bodily functions, including I Broke My Butt! and Larry the Farting Leprechaun.
The process following the book challenges involved a series of political and administrative machinations in Llano County before the 17 titles were removed. When seven county residents sued over the removals, the library director testified that while the books were initially pulled from the shelves based on objections raised by community members and government officials, the ultimate decision to remove them from the library’s collection was based on normal weeding principles.
Such practices typically involve removing books that are deemed misleading, superseded by newer volumes, physically worn out, or irrelevant (such as being rarely checked out). But the head librarian in Llano County testified that most of the 17 books did not meet the normal weeding guidelines.
A federal district judge rejected the idea that the books were pulled under normal practices of culling the collection and found that the county had “targeted and removed books, including well-regarded, prize-winning books, based on complaints that the books were inappropriate.” The judge ordered the 17 books re-shelved.
The defendants, including county officials and the library director, appealed to the 5th Circuit.
Dissenters say it is for the Supreme Court to reconsider its Pico decision
In the majority opinion, Duncan said it can be difficult for courts to determine whether libraries are removing books for legitimate weeding purposes, or doing so based on impermissible viewpoint discrimination.
“If a library had to keep just any book in circulation—no matter how out-of-date, inaccurate, biased, vulgar, lurid, or silly, then it would be a warehouse, not a library,” Duncan said. “By definition, libraries must have discretion to keep certain ideas—certain viewpoints—off the shelves.”
Seven members of the majority agreed that a library’s collection decisions are a form of government speech not subject to challenge on that basis under the free-speech clause, but the court as a whole did not reach a consensus on that rationale.
The dissenters criticized the majority for overruling the 5th Circuit’s Campbell decision and rejecting Pico.
Judge Higginson, writing for the dissenters, argued that Supreme Court Justice Byron R. White’s controlling opinion in Pico made clear that courts must determine the government’s motivation when determining if a book removal violates the First Amendment.
“The authority to adjust Pico—whether to extend it further or to change course—lies with the Supreme Court alone,” he said.
Chiarello, the lawyer representing the challengers, said they were considering their next steps.
“We are very disappointed that the 5th Circuit has regressed from long-standing circuit precedent and other precedent recognizing the right to receive information,” she said in an interview.
She noted that several federal district courts around the nation have recently blocked school library book removals or recognized a First Amendment right to receive information.
However, the only other federal appeals court to rule on book removals recently provided at least a temporary victory last year to supporters of an Iowa law that bans books depicting sex acts from school libraries and bars instruction about gender identity and sexual orientation through the 6th grade.
The U.S. Court of Appeals for the 8th Circuit, in St. Louis, reinstated the Iowa law as the case over its full merits continues.
Books removed from Texas county’s library system
Here is the full list of the books removed in Llano County:
- Caste: The Origins of Our Discontents by Isabel Wilkerson
- They Called Themselves the K.K.K.: The Birth of an American Terrorist Group by Susan Campbell Bartoletti
- Spinning by Tillie Walden
- Being Jazz: My Life as a (Transgender) Teen by Jazz Jennings
- Shine by Lauren Myracle
- Under the Moon: A Catwoman Tale by Lauren Myracle
- Gabi, a Girl in Pieces by Isabel Quintero
- Freakboy by Kristin Elizabeth Clark
- In the Night Kitchen by Maurice Sendak
- It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health by Robie H. Harris and Michael Emberley
- My Butt Is So Noisy! by Dawn McMillan
- I Broke My Butt! by Dawn McMillan
- I Need a New Butt! by Dawn McMillan
- Larry the Farting Leprechaun by Jane Bexley
- Gary the Goose and His Gas on the Loose by Jane Bexley
- Freddie the Farting Snowman by Jane Bexley
- Harvey the Heart Had Too Many Farts by Jane Bexley
