Book Bans and the First Amendment
BY HENRY LONG
IMAGE COURTESY OF THE MIAMI HERALD
Throughout his term as Florida governor, Ron DeSantis has signed several K-12 public education reforms into law. The Parental Rights in Education Act, known colloquially as the Don’t Say Gay Bill, grants parents more power to prevent their children from learning about certain topics in school. The Individual Freedom Act, also known as the Stop the Wrongs to Our Kids and Employees (W.O.K.E) Act, prohibits the teaching of specific ideas related to race. Another law adjusts the requirements for the acceptance and retention of books in school libraries. Republican governors across the country are taking similar steps to adjust K-12 public school curricula. As such, it might be enlightening to examine Supreme Court precedent related to these kinds of K-12 public education cases.
The Supreme Court has generally recognized that state and local authorities have broad discretion over educational curriculum—within certain constitutional limits. Some of the earliest Supreme Court education cases reveal these limits. In Meyer v. Nebraska (1923) and Bartels v. Iowa (1923), the Supreme Court ruled that state laws proscribing the teaching of foreign languages were unconstitutional under the Fourteenth Amendment’s Due Process Clause. According to the Court in Meyer, “the purpose of the legislation was to promote civic development by inhibiting training and education of the immature in foreign tongues and ideals before they could learn English and acquire American ideals.” In his majority opinion, while Justice McReynolds did not question “the State’s power to prescribe a curriculum,” he wrote that “no emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition.”
The Court has also been clear that a state’s jurisdiction over the curriculum can be limited on Establishment Clause grounds. In Epperson v. Arkansas (1968), the Court found an Arkansas statute prohibiting the teaching of evolution to be unconstitutional under the First Amendment since the law was found to be religiously motivated. On behalf of the majority, Justice Fortas wrote that “a State’s right to prescribe the public school curriculum does not include the right to prohibit teaching a scientific theory or doctrine for reasons that run counter to the principles of the First Amendment.”
The Court also ruled in Edwards v. Aguillard (1987) that a Louisiana law prohibiting the teaching of evolution unless accompanied by the teaching of creationism was unconstitutional under the First Amendment. Justice Brennan, on behalf of the majority, wrote that “because the primary purpose of the Creationism Act is to endorse a particular religious doctrine, the Act furthers religion in violation of the Establishment Clause.” In a concurrence, Justice Powell clarified that “nothing in the Court's opinion diminishes the traditionally broad discretion accorded state and local school officials in the selection of the public school curriculum.”
The Supreme Court has also identified limits to compulsory student speech under the First Amendment. While the Court found that a compulsory pledge of allegiance was constitutionally acceptable in Minersville School District v. Gobitis (1940), they reversed their decision just three years later in West Virginia State Board of Education v. Barnette (1943). In the latter case, Justice Jackson, on behalf of the majority, wrote that “Boards of Education . . . have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights.” Thus, the Court has repeatedly affirmed the broad discretion of state and local authorities in matters of educational curricula—provided that their discretion remains within constitutional bounds.
Supreme Court precedent on the removal of books from school libraries is more complicated. The Court has only faced one case on this issue—Board of Education, Island Trees Union Free School District No. 26 v. Pico (1982). In the case, the school board removed books it characterized as “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy.” The final ruling was messy—the Court only came to a plurality and not a majority decision. The plurality, led by Justice Brennan, acknowledged that while schools have broad discretion over the acquisition of new library books, “the First Amendment imposes limitations upon a local school board’s exercise of its discretion to remove books from high school and junior high school libraries.” While schools could remove books from libraries if they were “pervasively vulgar” or of questionable “educational suitability,” the plurality held that schools could not remove books in a “narrowly partisan or political manner.” The plurality based their conclusion on a “right to receive ideas.” Justice Blackmun, in his partial concurrence, denies that students have any such right. Justice White’s partial concurrence sided with the majority on the ruling but dismissed its constitutional pontification as unnecessary. Regardless of these disagreements, however, Pico demonstrates that schools’ power to remove books is not unlimited.
Supreme Court precedent has repeatedly affirmed the discretionary authority of state and local officials to dictate K-12 public school curricula. These precedents mean that as governor, DeSantis has broad leeway to mandate the teaching of certain topics and bar the teaching of others in a K-12 public school classroom. That said, there are limits to this authority. Opponents of DeSantis’s laws have already filed and may continue to file lawsuits under the First and Fourteenth Amendments, and others may file suits challenging DeSantis’s laws as unconstitutionally vague. The courts have already blocked the portions of the Stop W.O.K.E. Act that apply to public colleges and universities.
Many of the legal decisions will hinge on how the laws are enforced—both by DeSantis’s Department of Education and by teachers in the classroom. If the application of the laws violates students’ due process rights, limits student expression of certain viewpoints, or is conducted in a narrowly partisan manner, courts might object on constitutional grounds. Ultimately, while DeSantis’s K-12 education laws are no doubt controversial, it remains to be seen whether they will be found unconstitutional.