Will Two Recent Court Wins Against Book Censorship Be The Last?
Two recent settlements are a reminder of how book banners know they're doing wrong *and* how the incoming administration will reshape the legal system again.
Lawsuits are the way forward–at least right now–when it comes to book censorship. Over the last month, two cases, one in Florida and one in Alaska, showcase how. Both of these stories are centered in public schools, and both focus on the actions of school board members who sought to impose the values they’re told to have by the far right on the lives of the whole community to which they serve.
Nassau County School District (Florida)
Authors Peter Parnell and Justin Richardson, the pair behind the continuously targeted picture book And Tango Makes Three, filed a lawsuit after their book was among 36 pulled from shelves in the district. The suit claimed the district violated the First Amendment rights of the school body and that the district failed to follow Florida’s Sunshine Laws. The books were removed behind closed doors at the behest of Citizens Defending Freedom (CDF), a Christian nationalist group that has been at the forefront of book bans both in Florida and beyond. “Alternate sexuality in animals” was the reason CDF gave for demanding Nassau remove And Tango Makes Three. The book is the true story of two male penguins at the Central Park Zoo who were extremely bonded with one another; a zookeeper then gave them an egg which the pair successfully hatched and raised.
Because technically And Tango Makes Three did not rise to the legal definition of “obscene” or “sexual” created by Florida, the district could not remove the title with that reasoning. Instead, they noted that the book lacked circulation so it could be pulled that way. The board used that same “lack of circulation” reasoning to remove two other titles, while the remaining 33 were pulled for several other “reasons.”
On top of the district’s removal of the books, they changed their own policies for reviewing titles. No longer did the board’s reviews need to require public input. In other words, they simply gave themselves the power to decide what books could or could not be in district libraries.
In September, the district settled the lawsuit and the terms of that settlement are pretty important. They not only have to return all 36 books back to shelves and revoke the power they gave themselves to ignore policy and procedure when it comes to book reviews, they had to admit they did wrong. Not all of the books returned will be fully available to all students, but they are on shelf again while the district either follows through in its own review process or implements an opt-in policy for their access (i.e., unless the person wanting to borrow the book is 18 or has parental permission). Twenty-two of the returned books have zero restrictions attached.
Is this a perfect solution? No. Is it an end to book censorship in Nassau schools? Also no. But the key piece here is that the board admitted to not fulfilling their obligations to their community. They got caught.
The lawsuit was filed in the summer and settled in September, so the process was not significant in length. The judge did not take any actions as the settlement happened pre-trial, but it should be noted that the judge assigned to the case was a Trump appointee.
Matanuska-Susitna Borough School District (Alaska)
This week, freedom to read advocates in Matanuska-Susitna Borough School District Mat-Su) scored a similar out of court settlement victory. Unlike in Nassau though, the process here was very long. The suit was filed in November 2023 and settled nearly a whole year later.
The lawsuit, filed by several citizens, the state ACLU, and the Northern Justice Project, claimed that the district removed 56 titles from shelves after a handful of parental complaints. There was not yet a committee in place to review the titles, which was supposed to be part of the district’s process amid a book challenge. The vast majority of those books were, unsurprisingly, titles with LGBTQ+ characters or themes, but there were also several popularly targeted classics, including The Bluest Eye and The Handmaid’s Tale.
Mat-Su has been one of the earliest and most eager censoring districts nationwide. This pulling of 56 books in 2023 isn’t the first time that books and resources in the schools have been removed. In April 2020–right as COVID-19 protocols and restrictions were rolling out–the board voted 5-2 to ban five books from being taught in English classes across the district. Those titles included Invisible Man by Ralph Ellison, Catch-22 by Joseph Heller, The Things They Carried by Tim O’Brien, I Know Why The Caged Bird Sings by Maya Angelou, and The Great Gatsby by F. Scott Fitzgerald. All were pulled due to their depiction of “sexual situations,” with Angelou’s title also being noted as “anti-white.” At that time the district also banned the use of the New York Times’ The Learning Network; in the piece I wrote covering this story back in 2020, I linked to the district’s policy about how they do not have the power to ban books from district libraries.
The lawsuit had teeth from the start.
Unlike in Nassau though, despite electing to settle the case that was costing them a lot of money, Mat-Su officials refused to agree they were involved in any wrongdoing. Their press release, however, also suggested they knew they did the wrong thing. The district emphasized that 49 of the titles were already back on shelf after they were approved by the review committee (seven are permanently banned and include You by Caroline Kepnes; Verity, Ugly Love, and It Ends with Us by Colleen Hoover; Call Me By Your Name by André Aciman; and Sarah J. Maas’s A Court of Silver Flames and A Court of Mist and Fury). The lawsuit was over the books having been removed before the committee was established, not what the committee decided about said titles.
Mat-Su noted that they decided to settle this one out of court because it was pricey. Unlike other districts who believe wholeheartedly in their right to ban books whenever they wish to because of their political agendas, this settlement suggests not only the wrongdoing but also the recognition that spending more money would actually financially ruin the district. We know that ruin is the point in many places, but Alaska does not have a voucher scheme and the underhanded tactics used to fund some private schools with public dollars have been heavily criticized.
In this settlement, Mat-Su will be paying $89,000 in legal fees to those who brought the lawsuit forward.
That’s a hefty fee for not following their own policies.
The presiding judge in this case was Sharon Gleason, who sided with the plaintiffs’ claim that the district acted unconstitutionally. Gleason was an Obama appointee.
These are but two recently settled cases. There are about a dozen more pending or working their way through the legal system right now. Those outcomes are going to not only play a significant role in the work of anti-book censorship work going forward, but they’re also going to highlight the politics at play in book banning and interpretation of American law.
We need to keep documenting what’s going on because the reality is what we have now is not what we will have even four months from now. Courts will be under the eye of rising fascism in a way that we have yet to have see in our lives, and we already know what has happened with the current slate of lower court 2016-2020 appointees. They serve a master and that master isn’t the constitution, the law, nor American citizens.