A little more than 40 years ago, a school board in New York banned nine books, including novels and memoirs that addressed topics like racism, drug addiction, and anti-Semitism.

The board alleged that the books were “anti-American, anti-Christian, and just plain filthy,” and that the bans were part of their duty and obligation to “protect the children” in the school district from “moral danger.”

In response, a high school student named Steven Pico joined other students in suing the school board over the book ban. In 1982, the case Board of Education, Island Trees School ­District v. Pico made its way to the U.S. Supreme Court, which, for the first time, ruled on the constitutionality of book bans in school libraries.

Essentially, the Supreme Court’s judgment was that the school board could not prevail in the case without a full trial at the lower court level, and that under the First Amendment school boards could not remove books from the library based merely on “official suppression of ideas.”

Since then, Pico has come to stand for the general proposition that the U.S. Constitution protects the right to receive information and ideas, which is especially salient in a school library. As a result, there are some constitutional limits on the power of local school boards to remove books from school libraries, especially when book removals are based on narrow or partisan grounds.

Fast-forward four decades to February of this year when the American Civil Liberties Union filed a lawsuit against a Missouri school district on behalf of two unnamed students. Wentzville R-IV district was sued for banning eight books, including memoirs and novels addressing race, gender, and sexual identity.

In a release announcing the lawsuit, Anthony Rothert, legal director at ACLU of Missouri, said, “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 Missouri lawsuit comes amid a rise in book bans in the United States. School boards across the country are attempting to remove a range of titles, often in the wake of fierce complaints and well-organized campaigns from parents and groups using excerpts from books to create a fervor in like-minded community members.

The American Library Association’s (ALA) Office of Intellectual Freedom (OIF) “received an unprecedented volume of challenges” in the fall of 2021, according to OIF’s director.

Some of the banned titles have been considered longtime “classics” such as To Kill a Mockingbird by Harper Lee and Of Mice and Men by John Steinbeck. Newer titles addressing issues ranging from race, gender, and sexuality to family, social justice, and feminism have also been pulled from school libraries, including Gender Queer by Maia Kobabe and Stamped: Racism, Antiracism, and You by Jason Reynolds and Ibram X. Kendi.

In any case—and as was true 40 years ago in the Pico controversy—book bans present sometimes murky legal questions about free speech and students’ rights to access information and ideas in public schools.

Wentzville’s weeding

Wentzville R-IV is a suburban St. Louis public school district that serves more than 17,000 students. The district has policies governing selection, retention, and reconsideration of books for its school libraries. Those policies describe school libraries as “a point of access to information and ideas for students as they acquire critical thinking and problem-solving skills.”

Additionally, the district’s libraries reportedly embrace ALA’s Library Bill of Rights, which supports maximum student accessibility to materials that encourage knowledge, growth, and cultural appreciation and development.

In Wentzville’s schools, books can be “weeded” from libraries when they are damaged beyond repair or no longer useful, or when they are found to be age-inappropriate or to contain unreliable information. The school board may also consider formal written challenges regarding removal of certain titles.

In 2021, a parent member of the St. Charles County Parents Association formally challenged Toni Morrison’s novel The Bluest Eye because of explicit descriptions of violence, rape, sex, and incest contained in the book.

Initially, the Wentzville school board voted to retain the book, in part because The Bluest Eye was not an assigned reading or part of the district curriculum. Additionally, the committee reviewing the challenge thought that removing the title “would infringe on the rights of parents and students to decide for themselves” whether they wanted to read the book.

But later, the board approved removal of The Bluest Eye. Other books that were subject to formal challenges in the district around that same time were also pulled from library shelves in what the ACLU describes as “a campaign to suppress viewpoints about race and sexuality.”

All in all, the Wentzville school board removed All Boys Aren’t Blue by George M. Johnson; Fun Home: A Family Tragicomic by Alison Bechdel; Gabi, a Girl in Pieces by Isabel Quintero; and Heavy: An American Memoir by Kiese Laymon.

The board also removed Invisible Girl: A Novel by Lisa Jewell; Lawn Boy by Jonathan Evison; and Modern Romance: An Investigation by Aziz Ansari and Eric Klinenberg.

In its legal complaint, the ACLU contends that the board removed the books because school officials disliked the ideas contained in them, and that they did so “with the intent and purpose to prescribe what is generally or traditionally accepted as right or true in matters of opinion.”

Essentially, the ACLU says that the 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.”

The ACLU further contends that the Wentzville book bans violate student rights under the First and Fourteenth Amendments to the U.S. Constitution. The class-action lawsuit asks the court to reinstate the banned books into school library circulation.

Not long after the ACLU filed the lawsuit, the Wentzville school board reversed its decision regarding The Bluest Eye. Rothert welcomed the reversal in a statement issued in late February, but said that the ACLU’s case is still active.

“The fact remains that six books are still banned. And Wentzville’s policies still make it easy for any community member to force any book from the shelves even when they shamelessly target books by and about communities of color, LGBTQ people, and other marginalized groups,” Rothert said.

What about Pico?

The Wentzville case begs a question of how the Supreme Court’s narrow 5-4 decision in Pico–i.e., that there are some constitutional limits on the power of school officials to remove books from school libraries–applies in today’s highly charged book banning environment.

When Pico was decided, then-Justice William Brennan wrote the plurality opinion, which was joined either in full or in part by four other justices.

“In brief, we hold that local school boards may not remove books from school library shelves 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,” Justice ­Brennan wrote.

Another four justices dissented from that opinion. Some did not believe that the case implicated the First ­Amendment.

Consequently, aside from the principal opinion, Pico produced six different opinions from the various justices, each of whom presented potentially thorny legal questions underlying book banning in public schools. Those issues ranged from considering the underlying motivation for removing books, to examining the fundamental right to receive information under the law, to questioning whether school boards should be given broad judicial deference to manage school library collections.

The divergent viewpoints from the Supreme Court in the Pico case make it difficult to pinpoint a definitive legal test for determining whether a particular school board’s book removal runs afoul of the Constitution. As a result, book banning proponents may continue to push the issue until their state legislators clearly define school board authority to pull books from library shelves. And at this time, more than 13 states are reportedly proposing or considering bills that would make it easier for local school boards to remove books from school libraries.

Although the Wentzville board has thus far reinstated one of the banned books, the ACLU as of March appeared poised to continue pursuing the case in the courts.

”The First Amendment to the U.S. Constitution protects the right to share ideas, including the right of people to receive information and knowledge,” Rothert said in a statement, adding, “We must protect this right, including educators’ and students’ rights to talk and learn about race and gender in schools.”

Kelley R. Taylor is a writer, journalist, and lawyer.