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Lawsuits over book bans implemented in conservative states nationwide are one step closer to the U.S. Supreme Court. On Tuesday, the 8th U.S. Circuit Court of Appeals heard arguments in an Iowa lawsuit seeking to block two provisions of a sweeping law that regulated curriculum and prohibited instruction related to gender identity and sexual orientation in schools.
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Last week, the 5th Circuit in a split decision ordered that eight books on racism and transgender issues that were removed from libraries in Llano County, Texas, must be returned to the shelves. The decision upheld the lower court's injunction requiring 17 books be restored to the libraries, but diminished the injunction's scope to cover only eight books.
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While the issue is likely to make its way to the Supreme Court, other high-profile lawsuits remain in progress in states' district court systems. For example, a lawsuit filed in May 2023 by free speech organization PEN America and joined by publisher Penguin Random House is still in the Northern District Court of Florida after a judge decided plaintiffs had a valid argument.
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The 5th Circuit court decision was a partial victory for LGBTQ+ advocates and covers Mississippi, Louisiana and Texas.
Many of the lawsuits challenging book bans invoke the First Amendment, claiming that curriculum restrictions on topics related to race, gender identity and sexual orientation abridge the rights of students and sometimes educators to express themselves, teach and learn.
In that vein, the American Civil Liberties Union and Lambda Legal, another LGBTQ+ civil rights group, argued before the 8th Circuit on Tuesday that Iowa’s law restricts student expression and their ability to learn freely.
"There is something special about a school library, which is where students go specifically to learn," said Nathan Maxwell, a senior attorney for Lambda Legal, in a press conference following oral arguments on Tuesday. "Students here have a right to receive information, and they have a right to receive information that's age-appropriate."
Maxwell said the two organizations are hoping that once the lawsuit concludes, libraries and educators will once again be able to make decisions according to their expertise on what is considered "age-appropriate."
However, when asked about how the legal team would respond if the appeals court does not rule in favor of LGBTQ+ students, Maxwell said he could not speak to a future legal strategy. But Maxwell said "we will continue to fight for the students and families in Iowa to be able to access this information and to be able to speak freely about who they are in schools."
The issue of book bans is not a new one for the courts to grapple with.
In 1982, the U.S. Supreme Court addressed the removal of books from libraries in public schools in a landmark 5-4 decision in Island Trees School District v. Pico.
While a lower court upheld a school board’s removal of books from its junior and senior high school libraries that it said were "anti-American, anti-Christian, anti-Semitic, and just plain filthy," upper courts swung the decision in favor of students who said the board's decision violated their First Amendment rights.
In that case, justices ruling for the students said school board members have "significant discretion to determine the content of their school libraries," but that their decision should not be politically or personally motivated.
"Whether petitioners' removal of books from the libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners' actions," wrote former Justice William Brennan in the decision. "School boards may not remove books from school libraries simply because they dislike the ideas contained in those books and seek by their removal to 'prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.'"
Books removed by the school board included "The Black Boy" by Richard Wright and "Best Short Stories of Negro Writers," edited by Langston Hughes. Similarly, books impacted by current bans include modern classics such as Toni Morrison's "The Bluest Eye."
And while the issue isn't new to the court system, experts have called the breadth of recent book bans spreading in conservative states unprecedented.
Last year, PEN America tracked 3,362 books banned in the 2022-23 school year, a 33% jump from the year prior. The pace also picked up significantly in fall 2023, with 4,349 materials banned in just the first half of the 2023-24 school year compared to 1,841 in 2022-23.
State laws regulating issues related to race, gender and sexuality vary significantly in their scope and the penalties, which can include revoking teaching licenses and imposing felony charges.
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