Attempts to ban books continue in school board meetings across the country, but increasingly, the conversation has moved to statehouse legislators and lawyers. More than 10 states have introduced legislation that would make it easier to remove titles from school library shelves. Librarians and their fellow educators fear legal prosecution. And students, who identify personally with the themes and topics in many of the banned books, report feeling disenfranchised and discriminated against.

That’s the case in Texas, where a book ban challenge brought by the ACLU has led to a federal investigation. Opened in December, that investigation will consider whether book bans, which are often argued to be an infringement of First Amendment rights, are also a violation of civil rights. The ACLU of Texas says yes. But will the federal government agree and provide a new legal avenue for fighting to keep books on library shelves?

In January 2022, the superintendent of Granbury ISD, Jeremy K Glenn, had a meeting with librarians in which he reportedly instructed them to remove books with LGBTQ themes from library shelves. The meeting was recorded, and investigative coverage from NBC News, ProPublica, and The Texas Tribune revealed Glenn's comments.

“There are two genders,” Glenn is reportedly heard saying on the recording. “There’s male, and there’s female. And I acknowledge that there are men that think they’re women. And there are women that think they’re men. And again, I don’t have any issues with what people want to believe, but there’s no place for it in our libraries.”

According to reporting, Glenn described Granbury as being in a very conservative community with very conservative members on the school board, as well as saying of the content  of the titles that needed to be removed, that it's the "transgender, LGBTQ, and the sex—sexuality—in books."

In the weeks following that meeting, more than 125 books were pulled from Granbury ISD school library shelves. About 75 percent of those could be described as LGBTQ-themed, according to the ACLU of Texas. In July 2022, the organization filed a complaint with the U.S. Department of Education, saying the Granbury action violates Title IX of the Education Amendments of 1972.

“Superintendent Glenn’s comments and the resultant purge of LGBTQ+ books from library shelves by district employees plainly were discriminatory acts and create a pervasively hostile atmosphere for LGBTQ+ students in Granbury ISD,” the Texas ACLU said in its complaint.

In response, in December, the Department of Education’s Office for Civil Rights opened an investigation into the Granbury ISD book ban. While that sounds significant, opening a federal investigation into a civil rights complaint is not uncommon. However, this investigation’s focus—whether the Granbury book ban is a form of discrimination based on gender identity and sexual orientation—is somewhat novel. Will this approach and federal investigation have a significant impact on other censorship attempts across the country?

Just another book removal?

The Granbury ISD book removal is another in a proliferation of book bans in the last few years. In Texas alone, about 800 books were banned in a 12-month period from 2021 to 2022, according to PEN America. Additionally, data from the American Library Association indicates that more than 1,600 books were targeted for removal from libraries across the country in 2022.

Legal action challenging various book bans has been initiated and is ongoing in other places as well.

Last year, in Missouri, the Wentzville R-IV district was sued for removing eight titles that included memoirs and novels addressing race, gender, and sexual identity. In challenging the Wentzville book ban, the ACLU of Missouri focused on censorship and equal protection.

“School boards cannot ban books because the books and their characters illustrate viewpoints different of those of the school board; especially when they target books presenting the viewpoints of racial and sexual minorities, as they have done in Wentzville,” the ACLU argued.

Essentially, the Missouri ACLU said that Wentzville district failed to use established and unbiased procedures for book removal and that the banned books were “removed on an arbitrary basis and not in a viewpoint neutral manner.”

Since that lawsuit was filed, the Wentzville board has put several of the challenged books back on school library shelves but has permanently banned other titles. The case is an example of a typical pattern that book bans and legal challenges to those bans have followed over the years.

A key difference with the Granbury ISD complaint is that the ACLU of Texas is saying that documented anti-LGBTQ sentiment was the reason the books at issue were removed from district libraries. And because of that, the removal amounts to illegal discrimination against LGBTQ students. Specifically, the ACLU of Texas argues that Glenn and Granbury ISD violated Title IX—and that argument, in the book ban context, is a new approach.

Title IX was originally designed to prevent discrimination based on sex in education programs and activities. But over time and especially after the U.S. Supreme Court upheld the right of LGBTQ employees to be free from workplace discrimination in 2020, the breadth of Title IX’s application has grown. In June of 2021, President Biden and the U.S. Department of Education adopted the interpretation that Title IX’s prohibition on the “basis of sex” includes discrimination based on sexual orientation and gender identity.

Not all states have embraced that application of the civil rights law. Attorneys general from 12 states challenged the Department’s interpretation. In July 2022, the Department of Education was preliminarily enjoined from implementing its interpretation of Title IX in those states.

Texas, however, is not one of those states. So, the ACLU’s assertion that the Granbury book ban violates Title IX relies on the Department of Education’s interpretation of the civil rights law. One aspect surrounding the book ban that seems to bolster the ACLU’s claim is the well-documented statements of the Granbury ISD superintendent. There are also other facts and circumstances that the ACLU says point to anti-LGBTQ sentiment as the rationale for the book removal.

For example, Granbury ISD’s communications director reportedly acknowledged that some people would not agree with the book ban. But in justifying the book removal, the director added, “We understand the conservative climate of our community and that a large majority recognizes that several social and cultural topics are best left to parents and families to discuss with their children.”

Who should decide?

The Granbury communication director’s statement underscores an age-old dilemma tied to book banning, which is the question of who (i.e., parents, school boards, courts, or state legislatures) should decide what books kids have access to in school libraries.

For decades, that question has spurred usual legal arguments when book bans come about. One is that banning books in public school libraries is a form of censorship (e.g., a violation of the First Amendment to the U.S. Constitution) or of equal protection. Others contend that book removals are merely a matter of proper school authority and that school districts have broad discretion to decide what materials do, or do not, belong on school library shelves. That notion is long-established. But the law surrounding how much discretion schools have when they remove books from school library shelves is less clear.

The last time the U.S. Supreme Court decided a book banning case (Pico vs. Island Trees School District) was more than 40 years ago, producing a ruling with six differing opinions from the nine justices. It left no clear precedent, therefore there is no definitive way to say if a district’s removal of books amounts to a violation of the U.S. Constitution or of civil rights laws or a simple legal exercise of local district oversight.

The federal investigation into Granbury ISD’s book ban will take time—maybe a long time. And it’s way too early to speculate whether the complaint will eventually reach the Supreme Court or what would happen if it got there. Meanwhile, librarians in Granbury and across the country remain on the frontlines of the battle for intellectual freedom and, perhaps, in defense of students’ civil rights.