Wanted: Student Plaintiffs to Fight Back in Court Against Districts Removing Books

The Foundation for Individual Rights and Expression is ready to go to court against school boards and districts taking books off the shelves, but they need high schoolers to lead the way.

The Foundation for Individual Rights and Expression (FIRE), a nonpartisan organization with a mission to defend and promote free speech, wants to help high school students strike back against school districts removing books from libraries and classrooms—and help solidify legal backing of the First Amendment right to access to books. Will Creeley, FIRE’s legal director, would like to speak with students or school librarians about pursuing possible legal action.

“FIRE is looking specifically for student plaintiffs,” he says. “We'd like to bring suits on behalf of students at high schools who are dealing with vigilante censorship by school boards that are ignoring or simply inventing policies for removing challenged books. We'd love to hear from librarians, and we'd love to hear from students.”

With legal action, FIRE is hoping to strengthen the Supreme Court decision in Board of Education, Island Trees School ­District v. Pico, Creeley says.

In 1976 Steven Pico and three fellow students sued the Island Trees School District in Levittown, NY, for removing books that the school board said were “anti-American, anti-Christian, and just plain filthy,” and that the bans were part of their duty and obligation to “protect the children” in the school district from “moral danger.” The books included Slaughterhouse-Five by Kurt Vonnegut and The Best Short Stories by Negro Writers edited by Langston Hughes, among other titles.

The case went all the way to the Supreme Court. In 1982, Pico took on the constitutionality of book bans in school for the first time.

In a 5-4 judgment, the Supreme Court decided that the school board could not prevail in the case without a full trial at the lower court level, and that under the First Amendment school boards could not remove books from the library based merely on “official suppression of ideas.”

Since then, Pico has come to stand for the general proposition that the U.S. Constitution protects the right to receive information and ideas. As a result, there are constitutional limits on the power of local school boards to remove books from school libraries, especially when book removals are based on narrow or partisan grounds.

But it is not cut and dry. Then-Justice William Brennan wrote the plurality opinion, which was joined either in full or in part by four other justices.

“In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” Justice ­Brennan wrote.

Another four justices dissented from that opinion. Some did not believe that the case implicated the First ­Amendment. Aside from the principal opinion, Pico produced six different opinions from the various justices, each of whom presented potentially thorny legal questions underlying book banning in public schools. Those issues ranged from considering the underlying motivation for removing books, to examining the fundamental right to receive information under the law, to questioning whether school boards should be given broad judicial deference to manage school library collections.

The divergent viewpoints from the Supreme Court in the Pico case make it difficult to pinpoint a definitive legal test for determining whether a particular school board’s book removal runs afoul of the Constitution.

"We'd like to update and strengthen Pico by building upon it with new decisions making clear that, as Justice [Harry] Blackmun put it in his concurrence, 'school officials may not remove books for the purpose of restricting access to the political ideas or social perspectives discussed in them, when that action is motivated simply by the officials’ disapproval of the ideas involved,'" says Creeley.

FIRE has already begun the fight in some locations.

“We sent an attorney to Nampa, Idaho, after vigilante book banning," says Creeley. "The board members were simply inventing procedure out of whole cloth to just pull books off the shelves. We are standing ready, willing, and able to bring those cases. We need some brave plaintiffs for it. We'd love to hear from either school librarians or students at high schools.”

Creeley acknowledges this isn’t an easy ask.

“We recognize it's hard to be a plaintiff, especially when you're students, especially when you're in small town, and especially when there's this scary element of physical threat out there,” he says. “Social media makes all these cases more immediate and makes them feel more fraught. That is really what we have to counter. There's strength in numbers. So that's why I encourage everybody to speak out loud and proud about what we believe.”

Anyone who is interested in pursuing legal action, or discussing the option, can email Creeley.

Kelley R. Taylor contributed to this article.

Be the first reader to comment.

Comment Policy:
  • Be respectful, and do not attack the author, people mentioned in the article, or other commenters. Take on the idea, not the messenger.
  • Don't use obscene, profane, or vulgar language.
  • Stay on point. Comments that stray from the topic at hand may be deleted.
  • Comments may be republished in print, online, or other forms of media.
  • If you see something objectionable, please let us know. Once a comment has been flagged, a staff member will investigate.



We are currently offering this content for free. Sign up now to activate your personal profile, where you can save articles for future viewing