Parents group defends right to challenge school district’s book banning at Eighth Circuit

ST. LOUIS (CN) — A group of parents argued Tuesday in front of the Eighth Circuit that they had standing to challenge a school district’s policy of removing books from its library shelves.

“The injury here is that there is a right of access to receive ideas and information,” attorney Gillian R. Wilcox, of the American Civil Liberties Union of Missouri, argued on behalf of the parents in a 30-minute hearing. “And when the policy is triggered by any complaint, the book in a library is automatically removed, and that causes the injury to the students and parents who are filing on their behalf.”

The ACLU filed the lawsuit against the Independence School District on behalf of four parents in December 2022. The parents, who have children in the district’s elementary, middle and high schools, claim the district’s book removal policy violates their children’s constitutional rights.

At issue is a school board policy that automatically removes library materials, including books, immediately after receiving a challenge, before any review or vote.

The parents claim that automatic removal without an appeal process violates students' First Amendment and due process rights because it restricts their access to ideas and information for an improper purpose and without any prior notice. The policy allows for books to be removed on any basis, including because of views expressed in the material.

A federal judge dismissed the lawsuit, finding that the parents failed to show an injury, which prompted the appeal to the Eight Circuit.

The school district holds that the dismissal was proper because there was no actual injury done.

“This is an anticipated, hypothetical potential future temporary removal of a book, while it is reviewed by a committee before the board makes a decision,” said J. Drew Marriott of EdCounsel, the district's attorney.

U.S. Circuit Judge Lavenski R. Smith, a George W. Bush appointee, questioned Marriott whether this policy was a threat to First Amendment rights.

“When we're talking about that protected liberty interest, what we're looking at, is it stifling the actual expression?” Marriott said. “That’s not been alleged in this case, and so we have a policy in place that is viewpoint neutral and that been determined by both the Eastern District and in the Western District of Missouri as viewpoint neutral because it's been challenged with identical language in two different cases.”

Wilcox pushed back on that argument during her rebuttal.

“One person can lodge a complaint, can list every book that was written by or in favor of Republicans, and they would be removed automatically, because the policy requires it,” Wilcox said.

She added this this wasn’t a preenforcement challenge, that the policy has been enforced.

Wilcox noted the policy applies to all schools within the district, so when a parent in one school files a complaint, the book in question is immediately removed districtwide.

The April 25, 2022, removal of the book "Cats vs. Robots Volume 1: This is War" sparked the lawsuit. The challenge form submitted by a parent stated only “non-binary discussion chapter” as the basis for the complaint.

Both attorneys touched on the fact that this is the first challenge to a policy that has been in place for 12 years.

“I do think here the past enforcement recently does show that future enforcement is likely, especially if you look at what's going on nationwide with book challenges,” Wilcox said.

Marriott argued that is a hypothetical.

“We are here on a case that is not challenging the removal or temporary removal of any actual book,” Marriott said. “It's challenging a policy about an intention of students to use the library, a fear of some future event that they may not have access to some book, but they don't know what book, upon a challenge by someone."

He continued: "And what I would say is that the reality is, we have schools that have a finite number of books and libraries to begin with, right, so we don't have an issue with curating and what books are in there. And they also have to have the ability to update those books, change those books, remove those books.”

The Independence School District serves more than 14,000 students in the western suburbs of Kansas City. It has three high schools, four middle schools and 20 elementary schools, according to its website.

U.S. Circuit judges Roger L. Wollman, a Ronald Reagan appointee, and L. Steven Grasz, a Donald Trump appointee, joined Smith on the three-judge panel. The court took the arguments under advisement and set no timetable for a decision.

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