Banning books is a threat to American democracy
Last year, attempted bans of books in school libraries rocketed. Not wishing to be left out of the fun, this year, the Indiana legislature passed House Bill 1447, which is in full effect in our schools.
The bill requires school districts adopt policies to remove books deemed “harmful to minors” and makes it a felony to distribute such books. While reasonable people can agree we do not want children reading obscenity, misapplications of this law by school boards will likely lead to First Amendment violations.
Let's clarify when a book can be banned and, just as importantly, when it cannot. In 1976, a school district in New York pulled “objectionable” books from its libraries. The board did not want books that were, among other things, “anti-American” and “offensive,” infecting their children. This led to the removal of classic novels, such as Kurt Vonnegut’s “Slaughterhouse-Five.” When the issue of the book ban reached the Supreme Court, the court found the district had violated its students’ First Amendment right to “receive ideas.” In the end, the court wrote that school boards may not ban books simply because “they dislike the ideas in the books.” Rather, to ban a book, boards should show a book is “pervasively vulgar” or not “educational suitability.”
More: School librarians could face prison for sharing content under this new Indiana law
Despite this, school districts nationwide have often labeled books as "offensive" when they encountered ideas they disliked, resulting in bans on works such as "To Kill a Mockingbird," "Nineteen Eighty-Four," and the "Harry Potter" series. However, courts have consistently reiterated that banning books due to disapproved ideas is unconstitutional — even if the book has wizards and witches.
Enter Indiana's new law, which makes it a felony for librarians to distribute "harmful material.” “Harmful material,” as defined by Indiana law, is defined the same way legal experts define “obscenity.” Specifically, such material must be “patently offensive to prevailing standards” and “lack serious literary ... value.”
Now, while I am not overly concerned with a misapplication of this law by the courts, I am concerned of a gross misreading by school boards. So, school board members, take note of what I am about to write: You cannot ban a book because you are “offended” by its ideas. And you cannot ban a book because you or your constituents do not like ideas in the book.
Rather, a book must be objectively “obscene” and lack value. So, can you ban a book because a character has two dads? No. Can you ban a book because it teaches about our country’s history of slavery and segregation? No. Can you ban a book because it might allude to the topic of sex or because characters might engage in sex, such as in “Brave New World” or “The Catcher in the Rye?” No.
This should be straightforward, but in a time when politics and culture are weaponized, school boards will undoubtedly be tempted to ban "controversial" books. People on both sides of the political spectrum often claim offense. After all, it’s an easy claim to make, but “offensiveness” is a meaningless and subjective standard. To a liberal school board, Ayn Rand’s “Atlas Shrugged” might be offensive; likewise, a conservative board might be offended by Madeleine L’Engle’s “A Wrinkle in Time.” But being offended is not good enough. A book that offends one may enlighten another.
The purpose of schools is to prepare students for the future, enabling them to engage with our democratic government. To achieve this, we must teach students to engage with diverse ideas. We must teach them to wrestle with different perspectives. We must teach them to critically analyze what they read. Banning books based on subjective notions of offensiveness threatens the very foundation of our democracy and the education of our youth. It is through the exploration of diverse perspectives that our students can become informed, thoughtful and engaged citizens.
As the Supreme Court wrote years ago, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” In other words, school board members, don’t ban books because you don’t like them.
Brad Desnoyer is a law professor at the Indiana University Robert H. McKinney School of Law where he teaches Education Law. He is a former attorney for the Missouri Supreme Court.
This article originally appeared on Indianapolis Star: Books bring diverse perspectives. Banning them harms American values
