Are Book Bans a Prohibited Form of Discrimination?

Across the country and here in Virginia right wing parent groups - some funded by dark money - and Republican candidates and elected officials (think Glenn Youngkin) are pushing the banning of books with LGBT themes and/or that address non-white racial identity and all too often accurate history.   The motivations are two fold: (i) white Christofascists and white supremacists seek the removal of any books that go against their archaic beliefs or depict the horrors of parts of America's - and Virginia's - past and (ii) Republican candidates and officer holders seek to pander to their party base and primary voters who tend to disproportionately be far right extremist, Christofascists and white supremacists. This anti-LGBT and anti-minority jihad strives to deprive students of these minority groups of books that recount experiences like their own and shine a spotlight on America's often ugly past.  Now, based on complaints filed with the Office of Civil Rights of U.S. Department by the Texas ACLU investigations are underway as to whether such book bans are motivated by anti-LGBT and/or racial animus and constitute discrimination.   Should the actions be found to be discriminatory, the penalties against offending school divisions could range from mandatory training to a cut of off federal funding - the latter of which could enrage the majority of parents who find their schools penalized because of the demands of a loud minority of parents who harbor animus towards gays and racial minotities.   A piece in the Washington Post looks at what could be a game changer in turning back the efforts of religious extremists and racists.  Here are article highlights:

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.

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.”

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.” . . . . 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.”

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.

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.”

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.