Banned Books & Banned Identities: Maintaining Secularism and the Ability to Read in Public Education for the Well-Being of America's Youth

Authors

Megan M. Tylenda, Albany Law SchoolFollow

Abstract

Books containing LGBTQ+ themes and characters are being removed from public school libraries at a rapid rate across the United States. While a book challenge has made it to the Supreme Court once before, the resulting singular plurality opinion left courts without a clear test to apply, ultimately leaving students’ First Amendment rights in the air. Additionally, the increasingly relaxed view of courts towards religious influence in public schools indicates that if a modern case were to reach the Supreme Court, religious challenges may be accepted, which would leave LGBTQ+ students who seek to see themselves represented in literature without an avenue to do so. In light of this and other legislation harming LGBTQ+ students, in addition to studies indicating mental health concerns for LGBTQ+ youth, the best avenue to resolve this issue is to create a federal regulation separate from the courts. Students having access to literature that represents them or challenges them to learn about people different from themselves is essential to lessening mental challenges and inequalities faced by LGBTQ+ students and, without a standard that includes a formal review process for schools, the risk of detriment to mental health only increases. Others have sought to disregard the current plurality standard of review altogether in favor of a book removal test based on standards outlined in Wisconsin v. Yoder, while some have described that courts are utilizing Hazelwood School District v. Kuhlmeier, but reliance on the courts is difficult to ascertain considering the number of book challenges that go unreported and current religious influence.

This Article suggests that the most efficient way to rectify this issue is for the U.S. Department of Education to implement a funding-based regulation requiring that schools have a process of review, designating who is involved in that process, and requiring schools to provide a report of which books are removed at the end of each school year; if upon review the removals are found to be content- or viewpoint-based, the challenge must be revisited. Even though the Department cannot have direct oversight over school libraries and their book selection, it can establish regulations that make certain federal funding contingent on requisite programs and requirements that the schools can establish themselves. This Article seeks to add to the current debate over book bans and how they should be handled, especially when considering LGBTQ+ students, and provide a legal alternative for a remedy outside of the judicial system.

Recommended Citation

12 Ind. J. L & Soc. Equal. 109