Legal Forum

Removal or Restriction of School Library Books

Dr. Amy Dagley Associate Professor, University of Alabama at Birmingham and Dr. Dave Dagley, Professor Emeritus, University of Alabama

The school board in Escambia County, Florida, decided to remove or restrict access to several books in their school libraries. Five plaintiff groups sued the school board: the PEN American Center, Inc.; author plaintiffs who wrote the books; a book publisher; plaintiff parents; and plaintiff students. The five groups brought three claims. The first claim was viewpoint discrimination under the First Amendment. The second claim was violation of a right to receive information under the First Amendment. The third claim was an unequal protection claim under the Fourteenth Amendment. (PEN American is a nonprofit organization begun in 1922 to raise awareness in the United States and worldwide for free expression through literature.)

As the defendant, the school board filed a motion for the court to dismiss the case. After the parties were given an opportunity to present an oral argument on the motion on January 10, 2024, the district court judge issued an oral opinion, then memorialized his rulings in a written order two days later. This stage of the progress of the court case was not reported in the national reporter system until sixteen months later, on May 22, 2025. It is cited as PEN American Center, Inc., v. Escambia County School Board, 711 F.Supp.3d 1325, 433 Ed. Law. Rep. [749] (N.D.Fla. 2024) and it is the starting place for this commentary.

The defendant school board brought four arguments to support its motion to dismiss. First, it argued that the pleading was an impermissible shotgun pleading, because it did not give the school board adequate notice of the claims against it and the grounds upon which each claim rests. Second, it argued that none of the plaintiffs have standing. Third, it argued that the claims are moot based on Florida law. Fourth, the complaint failed to state any plausible claims for relief.

For the first argument, the district court judge noted that in oral arguments the school district’s counsel illustrated a clear understanding of the claims being brought and the grounds upon which those claims rest. For the second argument, the judge noted that the authors and publisher have a First Amendment interest that was impaired by the removal or restriction of the books they produced and the loss of a previously available forum for the speech in those books. PEN has associational standing because the interests implicated by the school board’s actions are germane to the purpose of the organization. Students have a right to sue for the loss of access to a variety of viewpoints and parents have a right to sue on behalf of their children.

For the third argument, the school board argued that the plaintiffs’ claims were moot under state law. Florida had created a special magistrate process that is available to parents when a local school board denies an objection to a book being made available in a school setting. (See, FLA. STAT. § 10006.28(2) (a)6.) The situation addressed in legislation is the opposite to the situation in this case. In the legislation a parent is petitioning the school board to remove a book. In this case the board has limited the access to books by students. Consequently, Florida law does not make the case moot. And for the fourth argument, all plaintiffs have standing to sue. Having “standing” opens the door to the courthouse, but it isn’t dispositive of the merits of the case.

The district court judge denied the motion to dismiss on the first two claims, that the school board’s actions implicated both viewpoint discrimination and the right to receive information, both under the First Amendment. However, the judge dismissed the third claim, that the school board had violated equal protection under the Fourteenth Amendment.

The district court judge in this case gave some thought to what the legal standard should be in measuring the school board’s decision to restrict or remove library books. At one point he mentioned a court case from 1982, Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 102 S.Ct. 2799 (1982). Pico was the first and only time the U.S. Supreme Court heard a case about a school board’s decision to remove library books from the school library. Unfortunately, Pico was a plurality opinion, meaning that there was no majority opinion, with at least five justices signing on to the decision. Consequently, Pico has little precedential value. However, the Pico plurality stressed the distinction between school library books and instructional materials in the curriculum. School libraries are unique because they are a place where students can engage in voluntary inquiry and they provide an opportunity for students to broaden their horizons and seek maturity in their understanding of more complex subjects.

The district court judge in the PEN case then wrote the following about what the legal standard should be:

The applicable legal standard for evaluating alleged First Amendment violations in the school library context is not entire clear, but the common theme in all of the potentially relevant standards (e.g., Pico plurality, Hazelwood, nonpublic forum) is that school officials cannot remove books solely because they disagree with the views expressed in the books but they can make content-based removal decisions based on legitimate pedagogical concerns including things like pornographic or sexual content, vulgar or offensive language, gross factual inaccuracies, and educational unsuitability for certain grade levels. 711 F.Supp.3d at 1331.

The district court judge closed his order with an expression of encouragement for the parties to discuss potential ways to resolve or narrow this case to avoid the time, expense, and uncertainty involved in the litigation process. Advice given in law commentaries after Pico in 1982 suggested that book removal decisions might be better accomplished by creating committees of education professionals to evaluate requests to remove or restrict access to school library books, judged against a legal standard similar to the one articulated above, followed by a vote by the school board concerning the committee’s recommendation. We believe that is still good advice.