Iowa urges Eighth Circuit to uphold LGBTQ+ school book ban

(CN) — A federal appeals court Tuesday heard arguments that could finally determine the fate of Iowa’s controversial 2023 state law that bans books with sexual orientation themes in school libraries and blocks teaching in public schools on LGBTQ+ subjects.

The dispute stems from two lawsuits challenging Senate File 496, which Republican Iowa Governor Kim Reynolds signed into law in 2023: one was filed by book publishers, including Penguin Random House, along with author Jodi Picoult; the other was brought by Iowa Safe Schools, a group advocating for LGBTQ+ rights.

A federal judge in Des Moines issued preliminary injunctions blocking in part the enforcement of Senate File 486 last year in two separate rulings affirming his previous injunctions that had been vacated and remanded by the U.S. Court of Appeals for the Eighth Circuit. A different three-judge panel of the St. Louis-based Eighth Circuit heard arguments Tuesday in the state’s appeal of the latest injunctions.

Iowa Solicitor General Eric Wessan told the U.S. circuit judges the Eighth Circuit got it right when it vacated the District Court’s first injunctions.

“This court found that Iowa’s law was a viewpoint-neutral, content-based, age-appropriate restriction,” he said. “It found that school libraries are intended to advance the curriculum of the school, and it found that Iowa was not required to have speech that undermines or is inconsistent with the goal of advancing the curriculum.”

In response, Frederick J. Sperling of Chicago-based ArentFox Schiff, an attorney for the plaintiff book publishers, said Iowa’s law “removes all of the discretion teachers and librarians historically had in the school districts of Iowa. First, the library restriction is a statewide mandate that prevents teachers and librarians from considering the value of the book as a whole,” as the U.S. Supreme Court has required in obscenity cases. “Second, the library restriction applies the same standard from kindergarten through 12th grade, so that a book that is inappropriate for a kindergartener must be taken off the shelves for high school seniors as well.”

U.S. District Judge Stephen Locher, a Joe Biden appointee, blocked enforcement of Iowa’s statute that removes from school libraries books with LGBTQ+ themes and descriptions of sex acts. He held that the law is facially unconstitutional because it forces schools to remove books that are not pornographic or obscene.

In a separate ruling, he upheld the constitutionality of most provisions of the law barring classroom instruction that focuses mandatory lessons or instruction for students in grade six or below that include detailed explanations or normative views on “gender identity” or “sexual orientation.” And he said state officials and school districts may enforce the parental notice requirement if a student asks for an accommodation in the form of a different pronoun to be used to identify that student.

However, he declared unconstitutionally vague the statute’s requirement that school officials notify parents if a student requests an “accommodation that is intended to affirm the student’s gender identity.”

Iowa Solicitor General Wessan argued in a brief filed with the Eighth Circuit that the statute, as applied to library books, is not subject to attack under the First Amendment because the state law requiring schools to “curate” their collections — that is, to eliminate books with LGBTQ+ sexual content — is government speech.

“Curation is the curator’s own speech,” Wessan wrote, adding that “curation of third-party speech is itself an expressive act, and thus government speech.”

In response, book publishers argue in a brief filed with the court by ArentFox Schiff’s Sperling that Iowa’s book ban cannot be justified as government speech.

“Courts applying the school-sponsored speech doctrine defer to the discretion of educators and schools because they are best positioned to make decisions concerning their students,” he wrote. “But the [Iowa’s law] is a statewide mandate that removes this discretion” and cannot be salvaged by the school-sponsored speech doctrine.

Questions directed at the lawyers by U.S. Circuit Judge Ralph Erickson, a Donald Trump appointee who confessed to being uncertain about the scope of any injunction in this case, indicated an as-applied challenge to Iowa’s statute might be preferable to a challenge to the constitutionality of the law on its face.

U.S. Circuit Judges Lavenski Smith, a George W. Bush appointee, and Jonathan Kobes, a Trump appointee, rounded out the panel. They did not say when a decision would be issued.

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