Denying Transgender Kids Representation in the School Library: Does it Violate the First Amendment?

“The librarian’s responsibility,” writes William Katz in Collection Development: The Selection of Materials for Libraries, “is to separate out the gold from the garbage, not to preserve everything.”* Library budgets are tight, space is limited, and some books simply might not be suitable for some audiences, particularly young children.

Recently, the supervisor of library media at the Wichita Public School District decided that George, by Alex Gino, isn’t a book worth providing to their elementary students.

According to the Wichita Eagle:

Gail Becker, supervisor of library media for the Wichita district, said “George,” a novel by Alex Gino, contains language and references that are not appropriate for young children. She decided earlier this year that the book would not be included in a set of William Allen White master list titles provided to Wichita elementary schools.

Wichita school librarians are allowed to carry the book if they choose, Becker said, either by purchasing copies from their building funds or borrowing one from the district’s library department.

George is a heartwarming middle grade novel about a transgender child. My twins read it when they were eight. They didn’t find it confusing, and I didn’t find it inappropriate for them. There is a brief, non-graphic reference to “dirty magazines,” and a few references to private parts (generally without mentioning specific organs) that are relevant to the story and shouldn’t offend anyone.** Considering how mild the language and references are in the book, I wouldn’t be surprised if the school administrator’s stated criticisms of George are merely pretext to hide her disapproval of the book’s positive portrayal of a transgender child.

The administrator’s decision does not appear to be a complete bar on access to the novel in Wichita school libraries (a school librarian may purchase the book out of separate funds or borrow the book); however, she has inappropriately treated the novel differently from all the other novels on the William Allen White master list, and the intended effect of her biased decision is to make the novel more difficult for children to access.

Reading about this situation in Wichita has made me wonder about the constitutional limitations on book selection in public school libraries. At what point, if any, does it become unconstitutional to impede access to a book by refusing to select/acquire it?

The main U.S. Supreme Court case on students’ First Amendment right to receive information and ideas at public school libraries is Bd. of Ed. v. Pico, 457 U.S. 853 (1982), but that case did not address the issue of library selection and acquisition. Instead, it focused on the removal of books that were already there, finding that local school authorities “may not remove books from school library shelves simply because they dislike the ideas contained in those books.” 457 U.S. 853 at 872.

What about the book selection process? Would a public school violate the First Amendment rights of its students when it refuses to select/acquire a book because it disagrees with a form of diversity (such as transgender identity) featured in the book?

Practically speaking, if a school or library decided against acquiring a certain book, how would the public know about it? It’s rare to see an article like the one in the Wichita Eagle highlighting a selection/acquisition decision, and if members of the public don’t know about it, they can’t challenge it in court. Maybe that’s why we have so few published court cases that mention book selection.

Pico, an old decision about a high school library from a fractured court (there was no majority opinion), may be the best guidance we have. Although this case wasn’t about the ability of school officials to “add to the libraries of their schools,” the Court acknowledged that these authorities “have a substantial legitimate role to play in the determination of school library content.” Id. at 869.

Similarly, in United States v. American Library Association (“ALA”), 539 U.S. 194, 204 (2003), a plurality decision from 2003 about internet filters in public libraries, the Court said:

Just as forum analysis and heightened judicial scrutiny are incompatible with the role of public television stations and the role of the [National Endowment for the Arts], they are also incompatible with the discretion that public libraries must have to fulfill their traditional missions. Public library staffs necessarily consider content in making collection decisions and enjoy broad discretion in making them.

However, when a library refuses to acquire a book because it presents a specific viewpoint, such as a positive portrayal of a transgender child, it is more likely that the library’s decision violates the First Amendment. See, Parents, Families, & Friends of Lesbians & Gays, Inc. v. Camdenton R-III Sch. Dist., 853 F. Supp. 2d 888, 899 (W.D. Mo. 2012) (distinguishing ALA, which involved denial of access to a particular subject, and finding that a school library could not filter internet content based on viewpoint without showing it meets a compelling interest).

Alex Gino’s George deserves to be on the library shelves as much as every other book on the William Allen White master list. A public school’s decision to bar it from the library certainly would raise the specter of viewpoint discrimination that may violate the First Amendment, even though school officials typically have broad discretion when it comes to selecting and acquiring library books.

For the Wichita schools, the good news is that every K-8 student in the district will have access to a copy of George in their school library because the author has managed to gather the funds to donate the copies. This book is important for children to read, and that’s especially true for those who are struggling with their gender identity or feel like they don’t fit in. It’s a shame that a school official in Wichita thought these children didn’t deserve to find a book in the school library that represents them.

________________________________________

 

*William Katz, Collection Development: The Selection of Materials for Libraries (1980) (quoted in United States v. American Library Association, 539 U.S. 194, 204 (2003)).

**There is one line that mentions “balls” in a way that I imagine many third and fourth graders won’t find shocking: “It looks like someone’s finally starting to grow some balls.” In this scene, a bully is referring to George. It does not encourage children to speak this way, and it’s a pretty mild reference to genitals. How sheltered does this school administrator think 8-year-olds are these days? Also, I’m curious to know if every other book in the school library is as bland and unrealistic as she expects George to be. I doubt it.

***Thank you to my sister for bringing the Wichita Eagle article to my attention. She is also the person who first recommended George to me.

19 comments

  1. After reading The Great Dissent (and with all the near-riots going on at various college campuses in the name of free speech), I have recently become very interested in the First Amendment. Seeing how the librarian rejected only one book from the list, I guess she did violate the First Amendment, although I wonder if it would hold up in court, since she didn’t ban individual schools in the district from acquiring the book. What do you think then of the librarian who rejected the Dr. Seuss books donated by the First Lady? She certainly had a point when she said there are other schools who could have used a donation much more than her school, but she also argued that his books are racist. I personally never thought of them as such, and I haven’t seen that point made previously, so I don’t think it’s a widely held belief (maybe I’m wrong). In court, would that rejection be different because it’s a donation? Incidentally, if you have any recommendations for me to read further about the First Amendment, I would greatly appreciate it.

    1. I agree with you that the school administrator’s decision is not a complete ban on the book. It burdened access to the book, without totally banning it, giving the author and others the opportunity to step in to provide the book to the schools. I don’t know whether burdening access is enough–it might be if it effectively bans the book, which isn’t the case here because others have now supplied the books to the schools. To make it a little easier for myself in this post, I broadened the question to: “At what point, if any, does it become unconstitutional to impede access to a book by refusing to select/acquire it?” I think refusing only one book from a list and giving such a ridiculous explanation for doing so, would be a First Amendment problem, but only if children really don’t have access to the book as a result of the school administrator’s decision. I wish I had some recommendations for books on the First Amendment. What I’ve read are basically legal textbooks and case law. I’ll see if I can find something (in part because I’d like to read it too!). Thanks for your comment!

      1. I forgot to respond to the Dr. Seuss issue. I read about it, but I have to brush up on the facts. Was that a public library? Did that library already have copies of those books? If so, then the children at that library would already have access. It’s problematic under the 1st Amendment to reject a book because of its viewpoint–though you can often reject books because they are inaccurate (there’s a 2009 11th Circuit case on that)–but maybe it’s viewpoint neutral to say that you’re rejecting them because the need for it is greater elsewhere (even though you’re not a fan of the book yourself)? It probably would’ve been better to cite space reasons, duplication (if they already have copies), and perhaps the need for something more contemporary for their collection. Librarians have a lot of discretion over what books go into their collections, and they don’t have to accept all donations.

        First Amendment cases are very complicated, and there isn’t very much solid case law on these types of issues.

        By the way, I mention that 2009 case here (it isn’t exactly applicable to the Dr. Seuss issue–it’s a removal case–but it gives some indication of when it’s okay to reject a book): https://misfortuneofknowing.wordpress.com/2017/08/29/lost-cause-childrens-literature-what-can-we-do-about-it/

        1. Thank you for both responses! I have tried to assemble a reading list about the First Amendment, but a number of the books I looked at seem to be biased one way or the other. I guess that’s what makes the court cases about it so complicated. I have to admit that I probably don’t have enough brain power left at night to get immersed into actual case law about this subject, so I’ll have to look for books that explain the issues in a way that people like me can understand them. 🙂 Thank you for the link to your post about the removal case.

  2. What is the William Allen White master list? Is it a list that government recommends to school libraries?

    I never thought about this, even though it is true. Libraries are so prone to behind-closed-door decisions, and we as potential consumers never realise how much we might be withheld from.

    1. I’d never heard of the William Allen White master list until I read the article in the Wichita Eagle. It appears to be a list of books selected by a committee that are eligible to win a children’s book award in Kansas. George deserves to be in those elementary school libraries just like every other book on that list.

  3. Thanks for sharing your thoughts and this article! I kind of agree with your viewpoint about violating the First Amendment. But I do know libraries have a right to pick and choose what they put in their collection. These kinds of situations constantly remind me of why we have Banned Books Week every year. But I’m glad the author was able to donate books to the library.

    1. It’s really important to highlight attempts to censor books because of the viewpoints in them. The school official here didn’t completely ban the book from the elementary schools, but she certainly treated the book differently from other books on that recommended list and tried to make it harder for children to access it. Librarians and officials at public schools have a lot of discretion to pick and choose the books in their collections, but there are some limitations. Discriminating against a book because it portrays a transgender child in a positive light is a problem, and I don’t think public librarians and schools have the right to do that.

      1. I agree. It’s sad and disheartening and like you said,”discriminating against a book because it portrays a transgender child in a positive light is a problem”. I feel like censorship is becoming more of a bigger problem these days. Thanks again for always sharing these informative articles , you always keep me in the know about important issues and I really appreciate and admire your blog.

  4. It’s funny, as I was reading this post I was thinking “well one way around that would be a very public donation of the book and see what happens then” and then read further to see that’s what occurred!

    Individual parents can always request that their children not check out a particular book or books (although that’s more likely to just fuel their desire to read it). At first I was thinking your post was about the school library of a private religious school, where at least I could understand the reasoning. But there is absolutely no reason to keep that book out of a public school! I also found it entirely appropriate for the chapter book fiction, and it’s likely to be one of the most innocent books there.

    1. It seems like the end result of high profile censorship decisions is often the exact opposite of what the censor intended! Private schools have more freedom to censor the reading material of children because the First Amendment only applies to public entities. I can’t imagine why anyone who works with children at a public school would think George is inappropriate for them. It’s definitely one of the more innocent books I’ve read for that age group!

  5. I love your blog so much because you help keep me up to date on topics like this. While I don’t have kids, I do have three nieces and 1 nephew. Also, knowing what my adults students in college had access to as children gives me a better understanding of their histories with books. For instance, when they’ve all read Romeo and Juliet and To Kill A Mockingbird, but nothing even remotely contemporary, I know that shapes the way they think and feel about literature. Although I haven’t read it, in a grad class about children’s Lit I read that Weetzie Bat has been one of the most “problematic” books for a long time because it’s too “adult.” We talked about it in the children’s lit class, but according to Wikipedia, it’s a young adult book set in an “indefinite time period evoking both the 1980s punk craze and the sophisticated glamor of 1950s Hollywood. Block describes issues such as blended families, premarital sex, homosexuality, and AIDS.” Have you heard of it?

    1. Thanks for the kind words about my blog! I’ve never heard of Weetzie Bat before, but it sounds like it was widely read. I’ll have to look into it.

  6. People, in general, don’t think about the selection process that any library has for their acquisitions. There’s always a process. No library can acquire all the books, however lovely that sounds.
    There are lots of ways for people who can afford books to donate them to others, and I like knowing about books like George for such occasions. I’m going out in a couple of hours to buy some books for a family with a 4 year old and a new baby, and I thought I’d buy some to grow into. I’ll see if the bookstore in my small town has George, so I can look at it, and if they don’t have it, I’ll ask them to order it.

    1. What a lovely gift! I agree that libraries can’t acquire all books, but it’s certainly odd to exclude George in a bundle of books from a recommended list. There really isn’t anything offensive about George for third and fourth graders, except in the eyes of those who insist on imposing traditional, binary gender norms on everyone else.

  7. School libraries… I made great use of them when I was a kid, but it’s absolutely essential parents fill in any gaps created by a deficient collection. That might mean taking them to the community library a couple times a month. Kids should visit there anyway. My mother took us to a strip-mall library every week in summer, because I insisted. 🙂 I needed input!

    1. Yeah, a school library can’t have everything, and the community public library is a great resource. According to the Wichita Eagle article, the Wichita Public Library has 14 copies of George. The book has been checked out 70 times so far, and I imagine that number will increase because of the attention Gail Becker has drawn to the book through this controversy. Just because a book is available at the public library, though, doesn’t mean administrators should exclude it from the school library, especially when it’s on a recommended list.

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