To be or not to be on the shelf? New Florida school book law could restrict even Shakespeare

To be or not to be on the shelf? That’s the question school districts across Florida are asking themselves as they figure out how to apply a new book-challenge law.

In Leon County, home to the state's capital, school-media specialist Kathleen Malloy says "The Bard," William Shakespeare, could be at risk. Shakespeare's works have already been restricted for certain grades in Orange County, which includes Orlando.

Schools are having to ditch long-established methods for choosing what books to purchase and teach. Since the new law signed by Gov. Ron DeSantis took effect July 1, if a school district finds material that contains “sexual conduct,” under the state’s definition, it must “discontinue use of the material for any grade level or age group for which such use is inappropriate or unsuitable.”

Malloy said she used to go by a system called the Miller Test, a three-prong method established with Supreme Court rulings to determine whether material was obscene. No longer.

"Even Shakespeare is suspect,” Malloy said.

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Malloy and other media specialists around the state are interpreting the new legislation, HB 1069, to mean that districts could be breaking the law if they do not pull media containing “sexual conduct.” That includes many books needed to take the College Board’s Advanced Placement literature exam and dual-enrollment classes.

Malloy said that could even apply to books that overall are "very valuable as a piece of literature," with just one or two small scenes that fall under the "sexual conduct" definition.

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Districts are awaiting training from the Florida Department of Education on how to proceed, and some have put their review processes on hold to wait for state guidance, including Brevard and Hillsborough.

In the meantime, book-access advocates are disputing how districts are interpreting the "sexual conduct" provision, and committees are leaning toward "erring on the side of caution" – something the state Department of Education advises media specialists to do when considering what books to keep in their libraries.

“It is overly cautious,” said Stephana Ferrell, co-founder and director of research and insight for the Florida Freedom to Read Project.

Parents who disagree with a school board's final decision on a book challenge can now also request a special magistrate from the state to review the decision, on the school district's dime, which Ferrell said could encourage groups to pressure school districts without actually filing book challenges – and potentially forcing districts to cave to avoid the challenge costs.

And, school districts must remove any book challenged because it includes pornography or sexual conduct within five days until the complaint is resolved.

The Department of Education did not respond to a media request.

What does 'sexual conduct' mean?

The state's definition of “sexual conduct,” includes actual or simulated intercourse, exhibition of or physical contact with genitalia, or any depiction of "sexual battery."

In Brevard County, the district’s book review committee voted to remove three texts by poet Rupi Kaur because of sexual content.

Committee member Michelle Beavers said her favorite poem is from "The Sun and All Her Flowers," one of the texts under review, but she was still in favor of removing the book. The book includes drawings depicting outlines of naked bodies.

"It's against statutes. We're done. That's it," she said, holding up copies of the drawings.

While a review process is ongoing in Orange County Public Schools, four Shakespeare plays are listed as approved for only grades 10 through 12, the Orlando Sentinel reported. Also on the temporarily rejected list are books that had been frequently taught in county high school classes, including “The Color Purple,” “Catch-22,” “Brave New World” and “The Kite Runner.”

The common rationale: “sexual conduct.”

And in the Tampa area, Pinellas County school officials, while choosing books for their annual Battle of the Books competition, voiced concern about relationships and sexual situations mentioned in the texts, which could make them off limits under the new law.

The pushback on book bans

DeSantis, who is vying for the Republican nomination for U.S. president, signed the law on the same day he signed three other bills that critics say target transgender people and the LGBTQ community.

DeSantis has maintained that the idea of book bans across Florida, which have made headlines across the nation, is a "hoax." He has bashed books that have been recently removed or restricted from public schools as pornographic, violent or otherwise inappropriate.

Those restrictions and removals have swelled in Florida over the last two years with legislation signed by DeSantis and a push by conservative parents' rights group Moms for Liberty, armed with lists of offending excerpts from targeted books.

In Leon County, the school district is contemplating delaying the checking out of books at all schools at the beginning of the school year until they can make sure they’re abiding by state statute, said Superintendent Rocky Hanna.

“I’m not banning books, I am not that guy,” Hanna said. "I also, because of this new law, do not want to be found in violation of the law and targeted by the DOE and the governor.”

Earlier this week, Hanna pulled five books that he deemed were in violation of state statute following prodding from a local chapter of Moms for Liberty.

“We will not do more than the law requires,” he said.

Kasey Meehan, director of the Freedom to Read project at PEN America, said the removal was an example of an activist group "intimidating" school administrators by using "overly vague" Florida law to label content as pornography.

“This framing has become an increasing focus of activists and politicians to justify removing books that discuss sex, include LGBTQ+ characters, or feature characters of color: books that do not remotely fit notions of ‘harmful ideology and overt sexualization,’” Meehan said in a statement.

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This reporting content is supported by a partnership with Freedom Forum and Journalism Funding Partners. USA Today Network-Florida First Amendment reporter Douglas Soule can be reached at DSoule@gannett.com or on Twitter @DouglasSoule. Ana Goñi-Lessan can be reached at AGoniLessan@tallahassee.com or on Twitter @goni_lessan. Contributing: Finch Walker, Florida Today

This article originally appeared on USA TODAY NETWORK: New law for Florida school books makes even Shakespeare 'suspect'