Utah's Biggest School District Pulls 52 Books
Alpine (UT) School Board Pulls 52 Books From School Library Without Proper Review
The Alpine (UT) School Board has pulled 52 books from their school libraries without the due process that is required by first amendment law which says that materials cannot be deemed “harmful to minors” without being assessed “as a whole” with regard to their value. The Alpine Board has violated this requirement by failing to read the books they are banning, basing their decision solely on isolated excerpts presented out of context.
The Utah Attorney General Office’s memo of 5/4/22, Laws surrounding school libraries, makes these legal requirements crystal clear in the section entitled, What is the legal standard for assessing what is harmful to minors.
Utah law (UCA 76-10-1201) defines materials that are harmful to minors [and] it is important to note that to be defined as harmful to minors, a book must meet all three factors outlined below.
(5)(a) “Harmful to minors” means that quality of any description or representation, in whatsoever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when it:
(i) taken as a whole, appeals to the prurient interest in sex of minors;
(ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(iii) taken as a whole, does not have serious value for minors.
(b) Serious value includes only serious literary, artistic, political or scientific value for minors.
Utah State Law Does Not Permit First Amendment Violations in School Libraries
This three part test mirrors the federal law, known also as “The Miller Test.” In fact, all states have laws that mirror the federal law because while states can offer speech and written materials greater protection than the federal government does under our First Amendment, they cannot provide less protection. The AG's memo reinforces this by stating that materials “MUST” be considered under this three-factor test. In order to be harmful to minors, works must appeal to the prurient interest in sex of minors, be patently offensive to prevailing standards AND lack serious literary, artistic, political, or scientific value.
So while some argue that a new Utah law passed last year allows schools to ban materials from school libraries, in fact the new law simply points to existing state laws, which mirror existing federal laws. That is why in the AG memo section entitled Does HB 374 change the standard for school library books?, the entirety of the answer is: “No.”
The May 4th AG Memo also addresses the practice of pulling library books off of shelves while they are under review. The AG’s Office stated that “students have extensive first amendment rights in school, and the removal of a book from a school library can constitute a suppression of ideas, in violation of their first amendment rights. Removing books before a determination is made as to whether they meet the definition of ‘harmful to children’ runs the risk of violating students’ first amendment rights to study and inquire, via prior restraint.” The memo goes on to note that “[The Supreme Court] has a long history of disfavoring prior restraints”, quoting then-Chief Justice Warren Burger who said, “Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights”
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A Full 17% of The Removed Books address LGBTQIA+ Topics
It is worth noting that the 52 books being banned by Alpine, which just happen to disproportionately target LGBTQ+ and BIPOC authors and topics, have been found to have literary value in many other challenges across the country. It is of additional concern that 32 books which were found by the Board's evaluation committee to have literary value are still being considered for removal, which is in conflict with the Miller Test standard, and their removal would be a clear violation of the first amendment.
Banning books from school libraries that are age-appropriate and have educational value is not only illegal, it limits students’ ability to engage in voluntary inquiry, develop critical thinking skills, and expand their understanding of the variety of human experiences and perspectives. Banning books by and about LGBTQ+ and BIPOC authors sends the incredibly damaging message to some students that their lives, their families, and their experiences, are shameful, vulgar, or otherwise unacceptable.