A federal judge has denied a local school board’s motion to dismiss a complaint alleging violations of First Amendment rights arising from the school board’s ban of certain school library books but granted a motion to dismiss the equal protection claims brought by Black and LGBTQ+ authors. The case is typical of many cases in which freedom of speech may be threatened by an increasing number of book bans across the country. ABA Litigation Section leaders believe that the decision in PEN American Center et al. v. Escambia County School Board is unique, however, and is a mixed bag with mixed results.
In PEN American Center, the plaintiffs alleged that the school board violated their First Amendment right to freedom of speech by its decision to remove or restrict certain books from school libraries. Reacting to complaints by some parents, the school board removed books and restricted access to others, allegedly based on ideological disagreements. The plaintiffs included parents, minority authors of some of the affected books, a book publisher, and PEN American Center, an organization that advocates for free speech on behalf of writers. The plaintiffs alleged that the school board’s actions demonstrated a bias against minority authors and topics, specifically LGBTQ+ and Black authors and related subject matter. In addition to First Amendment claims, the plaintiffs also included equal protection claims under the Fourteenth Amendment.
The school board moved to dismiss on several grounds, most notably failure to state a plausible claim. The motion was based on the doctrine of government speech, which holds that certain government actions communicate a viewpoint which is not constrained by the U.S. Constitution. The school board argued that its selection of which books to place on the library shelves and which to remove or restrict was a form of protected government speech.
The PEN American court, however, denied the motion to dismiss and rejected the government speech defense. Pointing out that “the traditional purpose of a library is to provide information on a broad range of subjects and viewpoints,” the court distinguished McGriff v. City of Miami Beach, in which the Court of Appeals for the Eleventh Circuit held that the city’s selections of which artwork to include or exclude from a city funded exhibit constituted government speech free from constitutional claims. The PEN American court noted that it “fail[ed] to see how any reasonable person would view the contents of the school library (or any library for that matter) as the government’s endorsement of the views expressed in the books on the library’s shelves.”
The district court determined that the appropriate test is whether school board decisions were based on ideology or on legitimate pedagogical concerns. Because the plaintiffs here alleged that the school board acted out of ideological disagreement with the content of the targeted books, the district court ruled that they had stated plausible claims of First Amendment violations.
Litigation Section leaders agree. “This court correctly applied the U.S. Supreme Court plurality holding in Board of Education, Island Trees Union Free School District No. 26 v. Pico, on strikingly similar facts. There the plurality held that a school board cannot remove books from a school library because the board or certain parents dislike the content or what the books represent,” says Rebecca Sha, New Orleans, LA, cochair of the Section’s Minority Trial Lawyer Committee. “The court’s rejection of the government speech doctrine further demonstrates its embrace of Pico because the dissenting opinion there was essentially the same as the later-developed government speech doctrine.”
“This is exactly what the First Amendment is all about,” agrees George Freeman, New York, NY, Executive Director of the Media Law Resource Center and former cochair of the First Amendment Media Subcommittee of the Section’s Civil Rights Litigation Committee. “It is outrageous to allow ideology to enter into the selection of books for a school library."
The plaintiffs’ equal protection claims, however, did not survive the motion to dismiss. The plaintiffs’ equal protection claims were that the school board’s actions in removing or restricting certain books had a disparate impact on non-white and LGBTQ+ authors and students. Here, the district court focused on the policies of the school board, which it found to be facially neutral, instead of on the board’s practices. With respect to possible claims of disparate impact on LGBTQ+ students, the court noted that those children would have to be “outed,” something the plaintiff parents advised the court they would not do. Accordingly, the court granted the motion and dismissed the equal protection claims.
Sha is surprised that the court dismissed these claims at the pleading stage based on Arlington Heights Housing Corp. v. Metropolitan Housing Corp. “Arlington Heights held that disparate impact standing alone is not enough on which to base an equal protection claim. There must also be discriminatory intent or purpose, as this court noted in a footnote. But the plaintiffs here did allege discriminatory intent on the part of the school board, and that might have been further developed in discovery,” Sha concludes.
