Are book bans discrimination? Biden administration to test new legal theory

The federal government has opened an investigation into a Texas school district over its alleged removal of books featuring LGBTQ characters - marking the first test of a new legal argument that failing to represent students in school books can constitute discrimination.

The Education Department's Office for Civil Rights is investigating the Granbury Independent School District, department spokesman Jim Bradshaw said this month. The probe is based on a complaint of discrimination lodged last summer by the American Civil Liberties Union of Texas, said ACLU attorney Chloe Kempf.

If the government finds in the ACLU's favor, the determination could have implications for schools nationwide, experts said, forcing libraries to stock more books about LGBTQ individuals and requiring administrators, amid a rising tide of book challenges and bans, to develop procedures ensuring student access to books that some Americans, especially right-leaning parents, deem unacceptable. The books most often targeted explore sometimes-challenging themes of sexual and racial identity.

» READ MORE: Central Bucks bans Pride flags and other staff ‘advocacy’ amid federal investigation into treatment of LGBTQ students

The Texas ACLU's complaint alleges that Granbury school officials directed the removal of all LGBTQ books from school libraries, in part citing remarks by Superintendent Jeremy Glenn in a January 2022 closed meeting. As reported in an article published jointly by the Texas Tribune, NBC News and ProPublica, Glenn said his staff would be "pulling out ... the transgender, LGBTQ, and the sex - sexuality - in books." The district later removed from library shelves at least 130 books, three-quarters of which featured LGBTQ characters or themes, according to the article.

These actions, attorneys for the Texas ACLU argue, violate Title IX, the federal law that prohibits discrimination in public schools on the basis of sex. The Biden administration recently interpreted this law as forbidding discrimination based on sexual orientation and gender identity - a finding that is key to the ACLU chapter's argument.

"The book removals and also the comments create this pervasively hostile environment," attorney Kempf said. "Both send a message to the entire community that LGBTQ identities are inherently obscene, worthy of stigmatization - and the book removals uniquely deprive LGBTQ students of the opportunity to read books that reflect their own experiences."

» READ MORE: I’m a trans teen in Central Bucks. Here, it doesn’t ‘get better.’

The Granbury school district did not respond to a request for comment. The Education Department declined to comment beyond confirming the investigation.

Will Flanders, research director at the right-leaning Wisconsin Institute for Law and Liberty, said treating book access as a Title IX problem makes little sense. "This isn't the sort of civil rights issue that requires federal intervention," Flanders said. "It's a question about books in schools, not about individual rights being violated."

He added that governmental intervention in the Granbury case could set a worrying precedent of federal overreach, since decisions on the appropriateness and availability of texts in school libraries should remain in the hands of local school boards, as has been the case since the establishment of the public school system.

Experts say the argument advanced by the Texas ACLU is unprecedented - but may stand up well to federal scrutiny and in court, should the investigation develop into a lawsuit.

"I think it's gonna hold," said John Doherty of the School Liability Expert Group, a firm that provides expert witness testimony and legal consultations to schools. "I wouldn't be surprised if this ends up at the Supreme Court eventually."

Still, Doherty said, it would be foolish to read too much into the federal government's decision to investigate the complaint, because Title IX requires the Office for Civil Rights to investigate all complaints of discrimination it receives. He also predicted that the federal probe is likely to proceed slowly, taking one to two years, and could generate penalties for the school district ranging from nothing to a reduction in federal funding to government-mandated training on inclusivity.

Already, though, the Texas ACLU's contention that removing books featuring certain kinds of students may amount to discrimination is drawing attention - at a moment when school book bans and challenges have surged to historic levels nationwide and school officials are clandestinely pulling texts from shelves to avoid controversy. Analyses from PEN America and the American Library Association show that the vast majority of books drawing complaints are written by or about people of color and LGBTQ individuals.

The Texas ACLU has already filed a second complaint with the Office for Civil Rights making the same argument, this one against Texas's Keller Independent School District. That complaint, filed in November, targets a decision by the school board last year to ban library materials that discuss or depict "gender fluidity." The Texas ACLU contends that this amounts to discrimination against LGBTQ students because it "seeks to erase transgender and non-binary identities ... and sends the message that transgender and non-binary students do not belong in the Keller ISD community."

A Keller school district spokesperson said Tuesday that the district is aware of the ACLU's complaint but that officials have not heard anything about a federal investigation. As of Dec. 30, the Keller complaint was not listed online as one of the Office for Civil Rights' open cases, and Education Department spokesman Bradshaw declined to say whether the government plans to investigate the Keller district.

Meanwhile, library and free speech advocates are taking notice. John Chrastka, who heads the national political action committee EveryLibrary, said he was thrilled when he realized the scope and implications of the Texas ACLU's argument that book banning could violate federal anti-discrimination laws.

This year, Chrastka said, EveryLibrary plans to repeat that contention in amicus briefs it will file in lawsuits against school book banning. As an example, he pointed to the ongoing suit filed by two students in Wentzville, Mo. that alleges their school district removed books representing the viewpoints of people of color and members of the LGBTQ community.

If his organization's efforts and the efforts of the ACLU in this arena prove successful, Chrastka said, he expects them to fuel an explosion in the availability of texts devoted to LGBTQ voices and subjects in school libraries.

Added Kempf, of the ACLU: "Instances of curricular censorship that we've seen are motivated by anti-LGBTQ animus, and we think this is a powerful tool in our tool belt to fight this politicized hostility towards LGBTQ students."

Others, though, say the civil rights claim may have limited applicability. The Granbury incident appears to be an outlier insofar as the superintendent was caught on tape specifically directing the removal of books featuring certain kinds of people, said Rick Hess, director of education policy studies at the conservative American Enterprise Institute.

Most cases of school book challenges and removals, Hess said, cannot be clearly traced to animus against a particular protected class of people such as LGBTQ individuals. Instead, he said, parents in school systems nationwide are filing complaints against books for their sexual or otherwise age-inappropriate content.

"If school districts everywhere really are systematically removing every book which contains a gay or trans character, that would be problematic, but I find that unlikely," he said. "But to ask whether something is appropriate for a 6- or 10-year-old? That strikes me as eminently reasonable."

However long it takes, the outcome of the federal investigation into Granbury could alter how school districts nationwide deal with the push to remove certain kinds of books, said Doherty, of the School Liability Expert Group.

For example, Doherty said, the government could find the Granbury district at fault and order the system to conduct staff training on meeting the needs of LGBTQ students - and to establish new procedures that might make it harder to remove titles from a library.

"This could become a precedent for other similar cases across the country, especially if the [Office for Civil Rights] decides to send out guidance known as a 'Dear Colleague' letter," he said.

Houman Harouni, a lecturer at the Harvard Graduate School of Education, said the outcome could have implications for religious studies at public schools, too. If it becomes possible to argue that removing books about LGBTQ students constitutes discrimination against those students, he predicted, activists on the religious right will try to extend that argument to religious students in order to push for the greater availability and teaching of school materials on religion.

"Religious minorities are also a protected class," Harouni said, "but many schools don't seem to have much of a problem limiting texts that promote a particular region."

The only real certainty in the Granbury investigation so far, Harouni said, is that the Texas ACLU's argument has opened yet another battlefront in the fierce education culture wars.

“However this case is concluded in the courts,” he said, “another rift is going to open.”