Judge dumps ‘wildly overbroad’ Iowa LGBTQ book ban

DES MOINES, Iowa (CN) — A federal judge in Des Moines halted enforcement of a ban on books referencing LGBTQ people or depicting sex acts in public schools Friday, but left intact a provision that requires school districts to inform parents if their child requests gender-identity accommodations like a change in pronouns.

“The law is incredibly broad and has resulted in the removal of hundreds of books from school libraries, including, among others, nonfiction history books, classic works of fiction, Pulitzer Prize-winning contemporary novels, books that regularly appear on Advanced Placement exams, and even books designed to help students avoid being victimized by sexual assault,” U.S. District Judge Stephen Locher wrote in his order. “The court has been unable to locate a single case upholding the constitutionality of a school library restriction even remotely similar.”

He also noted that “on its face, the law forbids any programs, promotion, or instruction recognizing that anyone is male or female or in a relationship of any sort (gay or straight). The statute is therefore content-neutral but so wildly overbroad that every school district and elementary school teacher in the state has likely been violating it since the day the school year started.”

The legislation, Senate File 496, was signed into law by Iowa Governor Kim Reynolds this past May. Among other things, it requires public school districts to ban books and materials containing descriptions or depictions of “sex acts” from all Iowa school libraries except for certain religious texts, such as the Bible, and forbids mention of sexual orientation or gender identity from kindergarten through the sixth grade, in or outside of the classroom.

It also requires teachers, counselors, and other school staff to report to parents if a student asks to be referred to by names or pronouns that differ from those they are registered under.

The plaintiffs in the Lambda Legal/ACLU-Iowa lawsuit filed in federal court Nov. 28 include eight public school students ages nine to 17 who identify as LGBTQ+ and their parents. They claim Iowa’s new law violates the students’ rights of free speech and expression under the First Amendment and equal protection under the 14th Amendment.

Separately, Penguin Random House, a parent, teachers and school librarians sued Iowa state education officials in federal court in Des Moines on Nov. 30, claiming the statute violates the plaintiffs’ First and 14th Amendment rights. The complaint names as defendants state education officials and two Iowa school districts.

Penguin was joined in its complaint by authors Laurie Halse Anderson, John Green, Malinda Lo and Jodi Picoult, whose books have been targeted for removal or removed from Iowa school libraries and classroom collections as a result of Senate File 496.

Penguin Random House, which calls itself the world’s largest trade publisher with more than 300 independent publishing imprints globally, claims books it published have been targeted for removal by Iowa school districts. Among them: “Beloved” by Toni Morrison; “Last Night at the Telegraph Club” by Malinda Lo; “Ulysses” by James Joyce; “As I Lay Dying” by William Faulkner; “Push: A Novel” by Sapphire; and “I Know Why The Caged Bird Sings” by Maya Angelou.

Locher found that while all plaintiffs had standing to challenge the book restrictions, none could challenge the disclosure requirement, which the Legislature titled “Parental rights in education.”

“All GLBT youth student plaintiffs report that they are already 'out' to their parents, families, and/or schools, and thus none of them are directly affected by this feature of the law,” Locher, a Joe Biden appointee, wrote. “Instead, at most, they simply allege that the parental notification requirement contributes to the overall perception that the law targets the LGBTQ+ student community. This is not the type of concrete injury that confers standing.”

Standing was also an issue for the plaintiffs’ challenge of a rule restricting “programs, promotion, and instruction” relating to gender identity or sexual orientation for grades six and under. Only one of the students, a fourth grader, could be deprived of any such programs by the law, Locher wrote. Even so, he noted, the law requires the fourth grader to engage in self-censorship and deprives her of opportunities to discuss her transgender identity without the fear of discipline, and her challenge was therefore likely to succeed.

With standing covered, Locher moved on to address the law’s constitutional bona fides. He found that the law was likely to fall afoul of two 1982 cases: Board of Education, Island Trees Union Free School District No. 26 v. Pico and Pratt v. Independent School District No. 831, from the U.S. Supreme Court and 8th Circuit, respectively. In Pico, Locher wrote, a fractured Supreme Court was largely able to agree that school boards’ decisions to remove books can, in some cases, violate the Constitution but have authority to remove “vulgar” books.

Pratt, Locher continued, provided additional guidance. “Pratt held that ‘to avoid a finding that it acted unconstitutionally, the board must establish that a substantial and reasonable government interest exists for interfering with the students’ right to receive information,’” Locher quoted. “’At the very least, the First Amendment precludes local authorities from imposing a “pall of orthodoxy” on classroom instruction which implicates the state in the propagation of a particular religious or ideological viewpoint.’”

Senate File 496, Locher wrote, threatened just such a “pall of orthodoxy.” “The problem here… is that Senate File 496 makes no attempt to target [vulgar] books in any reasonable way,” he wrote. “instead, it requires the wholesale removal of every book containing a description or visual depiction of a ‘sex act,’ regardless of context. The underlying message is that there is no redeeming value to any such book even if it is a work of history, self-help guide, award-winning novel, or other piece of serious literature.”

Senior attorney Nathan Maxwell of LGBT rights organization Lambda Legal celebrated the decision. “We are glad our clients, Iowa families, and students will be able to continue the school year free from the harms caused by these parts of this unconstitutional law,” Maxwell said in a statement. “This decision sends a strong message to the state that efforts to ban books based on LGBTQ+ content, or target speech that sends a message of inclusion to Iowa LGBTQ+ students cannot stand.”

Reynolds condemned the ruling.

“Instruction on gender identity and sexual orientation has no place in kindergarten through sixth grade classrooms,” Reynolds said in a statement. “There should be no question that books containing sexually explicit content — as clearly defined in Iowa law — do not belong in a school library for children. The fact that we’re even arguing these issues is ridiculous. The real debate should be about why society is so intent on over-sexualizing our young children. It’s wrong, and I will continue to do my part to protect their innocence.”

ACLU of Iowa executive director Mark Stringer called Reynolds’ statement inaccurate. “This lawsuit has nothing to do with access to obscene or pornographic material,” Stringer wrote on Facebook. “To the contrary, it is about protecting students to have a safe and affirming school environment and accurate learning materials. Moreover, Iowa law already bans obscene material from youth.”

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