Utah AG Publishes Clear Guidance Protecting School Libraries
Note: see 9/16/22 update to this article (below) about the withdrawal and replacement of this guidance memo.
Utah AG Memo Offers Strong Protection to School Libraries: Value to libraries beyond Utah
In Utah, the Attorney General’s Office, as required by the new law, “H.B. 374 Sensitive Materials in Schools” issued an official memorandum on May 4, 2022 as guidance to local education agencies (LEAs) to help school boards and superintendents understand the laws surrounding school libraries.
The memo is written in a Q&A format with extensive legal citations to First Amendment case law, as well as state and federal laws that define “obscenity” and “harmful to minors.” It is a remarkable and valuable document in how clearly it lays out the broad First Amendment protections enjoyed by school library materials, and rights that students have to voluntary inquiry in a school setting.
While this document was published by the Utah Attorney General, it likely has great value to librarians, parents, teachers, and public school administrators, across the country because state statutes related to obscenity and “harmful to minors”, while they may differ in some details, are fundamentally similar to each other in that they are ultimately constrained by and must reflect the free speech protections that exist in federal law. States are free to protect more speech than the United States Constitution affords, but they cannot protect less.
Seven Questions Addressed in the Memo
The memo systematically walks through the answering of seven questions. Here are the seven questions, with excerpted answers
- Do students have legal rights regarding access to school library materials? “Yes. The United States Supreme Court (“SCOTUS”) has an extremely long history of recognizing that students have their own First Amendment rights in school. The removal of books from a school library can constitute an official suppression of ideas, in violation of the First Amendment.”
What is the legal standard for assessing what is harmful to minors? The memo describes Utah state law which mirrors the “Miller Test”, and strongly points out that ALL of these criteria must be met to reach the level of something that can be prohibited. (UCA) 76-10-12016 defines harmful materials thusly:
- taken as a whole, appeals to the prurient interest in sex of minors;
- is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
- taken as a whole, does not have serious value for minors. Serious value includes only serious literary, artistic, political or scientific value for minors.
Are library books and books assigned as a part of classroom curricula subject to the same constitutional standard? “No. Library Books are given significantly wider protection under the First Amendment than books that are assigned as a part of school curriculum.”
What factors may NOT go into a book removal? “Books may not be removed because they contain ideas that local school boards disagree with based upon: politics, nationalism, religion, or other matters of opinion”
Does HB 374 change the standard for school library books? “No”
Are library books included in HB 374? “Yes, though HB 374 does not change the standard that is used to assess school library books”
What should be done with a book while it is pending review? There is no specific law stating whether books must be left in the library when facing a challenge. However, leaving books on the shelves while pending review helps to ensure that schools are not engaging in prior restraint… SCOTUS has a long history of disfavoring prior restraints.”
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AG Memo Makes It Clear: The Law Protects School Libraries From Censorship
The original “as introduced” version of HB374 tried to ban anything that “contains a discussion, description, or representation of sexual conduct, contains gratuitous use of vulgar, profane, or obscene language”. This plainly unconstitutional language did not make it to the final version of the bill which ended up simply pointing to existing statutory language. Nevertheless, many who championed the bill perceived the passage as a win and were expecting it to kick the door open to increased school library book-banning.
The AG’s memo has thrown the cold water of reality on those expectations. At the end of the day, there is a high level of constitutional protection for students and for library materials. That high standard of protection constrained Utah lawmakers in their attempts to legislate their way to easier book-banning, and that standard of constitutional protection has now been reinforced by the Attorney General’s clear and unambiguous memorandum of guidance.
The Transcendent Imperatives of the First Amendment: Highlighted Excerpts and Citations From the Utah AG Memo
- “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Shelton v. Tucker, (364 U.S. 479), at 487 (81 S.Ct. 247, 5 L.Ed.2d 231) (1960)
- "In Island Trees v. Pico, SCOTUS noted that '[l]ocal school boards have broad discretion in the management of school affairs, but such discretion must be exercised in a manner that comports with the transcendent imperatives of the First Amendment. … [T]he special characteristics of the school library make that environment especially appropriate for the recognition of such rights.' Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 853, 102 S. Ct. 2799, 2801, 73 L. Ed. 2d 435 (1982)
- "SCOTUS has stated that “students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding.” “The school library is the principal locus of such freedom.” Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 868–69, 102 S. Ct. 2799, 2809, 73 L. Ed. 2d 435 (1982)
- "[R]emoving 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."
- "SCOTUS has a long history of disfavoring prior restraints. 'Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights,' wrote then-Chief Justice Warren Burger. SCOTUS has held that '[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.' Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963)
- "[A] work that contains nudity, sexual conduct, sexual excitement, or sadomasochistic abuse is not harmful to minors on its face. If a work contains one of those things (as defined below), it MUST then be considered under this three-factor test. In order to be harmful to minors, the work must contain nudity, sexual conduct, sexual excitement or sadomasochistic abuse AND appeal to the prurient interest in sex of minors, be patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors, AND lack serious literary, artistic, political, or scientific value."
Update 9/16/22: Since the publication of this post, Sean Reyes, the Attorney General of Utah, made the decision to rescind the clear, nonpartisan, and apolitical guidance that was issued by a career attorney and AG Office school board liaison whose duty it was to provide guidance to the Utah State School Board of Education. In it's place, he issued a new memorandum that was "personally written, reviewed, and approved by" him.
Why would the Attorney General -- who one would imagine has more important things on his plate such as investigating and prosecuting high level state crimes against the people of Utah -- take the highly unusual step of rescinding a simple and straightforward memo dealing with school library books; especially a memo that was written in a matter-of-fact prose style that provided exactly the kind of clarity to LEA's that they need to understand what is required of them under the HB374? One could speculate on the political pressures or motivations that might have been at play. Dr. Richard Price, a noted scholar and expert on censorship, observed in this article that a conservative Utah Representative took to social media after the release of the original May 4 memo saying that "the AG’s office was reviewing the memo and claiming it went out without proper vetting." Dr. Price surmised that, "this is pretty clearly evidence of political pressure on the AG to change the obvious and easy legal conclusions."
It is worth noting that the Reyes memo, which lacks the clarity of the original memo and seems to strain to offer a legal interpretation that invites book banning, states, "Even when removal of library books meets strict compliance with HB374 and related state statutes, a legal challenge will invite application of federal First Amendment jurisprudence." [italics added.] It goes on to say, "A cardinal rule of statutory interpretation is that when a statute is susceptible to two plausible interpretations, it should be interpreted to avoid the constitutional conflict."
What does, "invite application of federal First Amendment jurisprudence" mean? It means roughly, 'our new interpretation of HB374 as laid out in this memo likely violates first amendment law' which requires materials to be evaluated "as a whole" when determining whether or not they lack serious literary, artistic, pollical, or scientific value, or present sexual content in a patently offensive manner (aka "the Miller Test.) In other words, the memo is encouraging LEAS to engage in book removals without conducting the evaluation federal law requires. And it is this violation of law that would "invite application of First Amendment jurisprudence." But the memo strains itself trying to avoid stating the plain fact that banning books without doing a Miller Test analysis is in clear conflict with first amendment law.
Note how this section of the Reyes memo, he continues to backtrack and attempt to qualify the questionable guidance offered earlier in the document:
In other words, even if the material is specifically listed in subsections (i), (ii), and (iii), the decisionmaker may consider independently analyzing whether such material has serious value for minors under I227(2)(b). And, to further validate the removal decision under federal law, decisionmakers may consider assessing the materials as
a whole" when analyzing materials under Section 1227. [italics added]
We can again translate, "may consider" to 'you better consider, if you don't want to be wrong-sides of decades of first amendment law, get sued, and lose.'
In short, we see that a clear guidance memo for Utah schools was rescinded and superseded for what appears to be political motivations, and the new memo puts Utah schools between a rock and hard place. The Reyes interpretation of HB374 tells volunteer school board members that if they don't err on the side of pulling library books off of the shelves they will be in violation of HB374, but if they do err on the side of pulling books they will be exposing themselves, and their local taxpayers, to expensive lawsuits for violating the first amendment.
In conclusion we'll give AG Reyes the last word, quoting from his memo, "A cardinal rule of statutory interpretation is that when a statute is susceptible to two plausible interpretations, it should be interpreted to avoid the constitutional conflict." [italics added]