A Message to Florida: Heed Brennan’s Words in Pico

By Shripad Bangaru, Vol. 22 Staff Writer

Surging in popularity are states engaging in the practice of “book banning” in public schools. “In the 2022–23 school year, PEN America recorded 3,362 instances of books banned, an increase of 33 percent from the 2021–22 school year.”  Books such as To Kill a Mockingbird and The Kite Runner are just a few examples of the literary works being targeted. Politicians at all levels of government are advocating for and enacting book bans across the county. Groups such as Moms for Liberty are creating enormous pressure for these book bans to occur.

Most notably, “[o]ver 40 percent of all book bans occurred in school districts in Florida.” Across 33 school districts, there were 1,406 cases of book banning in Florida. The next closest state is Texas with 625 bans.

In the summer of 2022, Florida passed the Individual Freedom Act, commonly known as the Stop Wrongs to Our Kids and Employees Act and abbreviated to the Stop WOKE Act. Among other things, it prohibits “instruction that suggests that any individual, by virtue of their race, color, sex or national origin, ‘bears responsibility for and must feel guilt, anguish or other forms of psychological distress’ on account of historical acts of racism.” The bill was intended by DeSantis to “fight back” against “woke indoctrination” and critical race theory. But Florida wasn’t done.

The following year, Florida passed GB 1069. The bill requires “sex ed programs to teach that sex is determined by reproductive function at birth and is binary and unchangeable and to use only materials approved by the state Department of Education.” Furthermore, the bill also allows “anyone in the district to object to any material in the classroom or school library or on a reading list that depicts or describes any sexual conduct, even if it is not pornographic, if it is not for a health course. Such material would be removed pending investigation and subject to permanent removal.”

Over the past few years, these bans on books touching on race, gender or sexual orientation, became increasingly politicized. Parents who disagree with a school board’s final decision on a book can now also request review of the decision which comes with enormous administrative costs for school districts. Even more concerning, is that school districts must “remove any book challenged because it includes pornography or sexual conduct within five days until the complaint is resolved.”

Florida’s practice of book bans flies straight in the face of what the First Amendment is meant to protect. Certainly, some material is far too inappropriate for schools. And certainly, parents may wish to exert some degree of control over their child’s education. Here, however, we are seeing books being banned for the very reasons that they must be kept on the shelves.

In Board of Education, Island Trees Union Free School District No. 26 v. Pico, Justice Brennan wisely held that “students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate’ [and] therefore local school boards must discharge their ‘important, delicate, and highly discretionary functions’ within the limits and constraints of the First Amendment.”

Yet, Jennifer Kelly, a chair of Moms for Liberty and a fierce proponent of book bans, stated that she she was not interested in the views of students. “If they’re 17 or younger? No. It’s their parents’ decision.”

This could not be more misguided. These students are our future. Arguing that they lack such freedom is not only contrary to the First Amendment precedent but also fails to muster any semblance of sound logic. Of course, schools (and parents) must have some discretion to control what students are learning, but certainly this is not an absolute freedom.

Turning to Brennan again, finding “[o]ur precedents have focused ‘not only on the role of the First Amendment in fostering individual self-expression, but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas.” Brennan further held that the discretion afforded to local school boards “may not be exercised in a narrowly partisan or political manner.”

As stated earlier, the ideas sought to be suppressed are those found at the heart of the First Amendment. These are issues of great social, political, and historical value. They foster the most valuable of discourse. Although the concepts are not palatable for some, the First Amendment protects even what we find distasteful. One may even argue that the unpopularity of these issues accentuates the need for First Amendment protection, which has routinely been found at its strongest where unpopular viewpoints are at play.

Brennan’s reasoning is on point. Children do not, and should not, lose their rights upon entering school grounds. Accordingly, schools may not, and should not be allowed to ban books to censor certain political viewpoints.

While parents have the right to raise their own children, they should not hold the same level of power in a public school as they would within their own home. They also do not possess the right to raise other parents’ children. Book bans affect every child in the school, including many who would greatly benefit from access to such books. Finally, even if these ideas are not entirely tasteful to many, schools are arguably the best setting for children to be exposed to these ideas, where they have a chance to start a discussion with their peers, their educators, and their parents when they come home from school.

In sum, these books bans have utterly failed to pass the level of scrutiny required to override the explicit text of the First Amendment that reads that the government “shall make no law . . . abridging the freedom of speech.”