Since 2021, state laws that lead to book challenges and bans in K-12 schools have proliferated. In total, PEN America’s Index of School Book Bans from July 2021 to June 2023 found 5,894 book bans across 41 states and 247 public school districts.
In its 2022 report, PEN American found 41% of such bans were tied to state officials or lawmakers; its 2023 report found 74% of bans came from a “advocacy groups; elected officials; or enacted legislation.”
The rise of book bans and other forms of academic censorship at the state level has prompted federal attention. In 2022, the House Committee on Oversight and Reform held a two-part hearing called “Free Speech Under Attack.” The first hearing addressed book bans and academic censorship, while the second addressed curriculum sabotage and classroom censorship.
In 2023, the House Committee on Oversight and Accountability released a report on national trends of book bans and curriculum gag orders. On Sept. 12, 2023, the Senate Committee on the Judiciary held a hearing titled “Book Bans: Examining How Censorship Limits Liberty and Literature.” A month later, on Oct. 19, 2023, the House Committee on Education and the Workforce” held a hearing titled “Protecting Kids: Combating Graphic, Explicit Content in School Libraries.”
In general, two sides have emerged surrounding these laws. Those supporting this legislation advocate for curriculum transparency and parents’ rights to exercise control over educational materials for their children, particularly in relation to explicit content. Some further argue that state governments have the authority to define inappropriate content and control access to it to protect children.
Those opposed to this legislation present arguments based on rights protected in the First Amendment, including the right to receive information and ideas, freedom of speech and freedom of press.
Florida, Texas among states to enact laws for book challenges
Since 2021, Florida has become one of the most prominent states in creating legislation that results in censorship and banned books in schools. In 2022, Florida passed HB 1557, arguably the most well-known of the state laws that affect book challenges and bans in K-12 schools. HB 1557’s official title is “Parental Rights in Education;” it is more commonly known as the “Don’t Say Gay” law,
While the bill makes several requirements, the one most critical regarding book challenges is the prohibition of discussing sexual orientation or gender identity in elementary schools or “in a manner that is not age-appropriate or developmentally appropriate for students” in general. School districts found in violation would be liable in court, essentially encouraging the removal of all materials on the LGBTQ+ community.
With the passage of this law, teachers have faced censorship in the form of books being pulled from shelves or hidden. Many also practice self-censorship, for fear of violating the legislation and facing consequences that include losing their professional teaching certification.
Law requires vendors required to rate materials for inappropriate material
Another frequently discussed piece of legislation, HB 900, also known as the Restricting Explicit and Adult-Designated Educational Resources (READER) Act, passed in Texas in 2023. This bill attempts to limit access to “inappropriate” and “explicit” content in school materials. It requires vendors who supply books to public schools to rate all materials and identify any inappropriate material, including past materials sold. Any books deemed “sexually explicit” would be removed from libraries. Any deemed “sexually relevant” would require parental consent for students to view.
The bill’s vague language raises continued concerns about censorship, especially for content related to the LGBTQ+ community. Since its passage, at least two teachers have lost their jobs, and one has created a secret shelf of banned books. As in Florida, some Texas educators also engage in self-censorship, for fear of violating the law.
While these laws in Florida and Texas are among the most well-known, similar legislation has been passed in many other states, including Arizona, Missouri, and Tennessee.
First Amendment concerns with state laws governing library books
In their scope of banning books and instructional materials in K-12 schools, these state laws potentially violate several First Amendment rights. Two ongoing lawsuits filed in 2023 illustrate some potential First Amendment issues.
- Pen America v. Escambia County School District contends that the Escambia County School District and School Board violated the First Amendment rights of students, authors, and publishers in banning and removing books from school libraries. In January 2024, Judge T. Kent Wetherell of the U.S. District Court for the Northern District of Florida found that all plaintiffs had standing under the First Amendment to pursue this lawsuit.
- Book People, Inc. et al. v Martha Wong et al. challenges Texas’ READER Act on the basis it violates the freedom of speech and freedom of the press. In January 2024, the 5th U.S. Circuit Court of Appeals upheld a block of key provisions of HB 900 and found it “likely violated First Amendment protections.” As of April 2024, the 5th Circuit has denied a rehearing of the lawsuit, meaning the law remains unenforceable.
Board of Education, Island Trees Union Free School District v. Pico (1982) may also be relevant when considering the current slew of state legislation resulting in book bans. Pico specifically addresses how the removal of books from school libraries violates students’ First Amendment rights. Removing books from school libraries violates the right to receive information and ideas. In the context of the current wave of legislation, removing books from school libraries specifically because they mention a particular topic (e.g., sexual orientation, critical race theory) or group (e.g., LGBTQ+) would thus be a violation of students’ First Amendment rights.
Some states have passed laws banning book bans
In response to states enacting legislation that bans books in K-12 schools, some states have passed legislation to do the opposite – essentially banning book bans. Some of these laws do not directly address the First Amendment; they instead target areas that other states have used to perpetuate censorship and book banning.
For example, in 2023, California enacted AB-1078, an example of a piece of legislation that “bans book bans.” This law prohibits refusing to approve or prohibiting the use of instructional materials, including those in school libraries, on the basis that they include information on diverse groups (e.g., cultural, racial, LGBTQ+).
Other legislation directly addresses First Amendment concerns. In 2023, Illinois enacted HB 2789, which became Public Act 103-0100.
The law specifies that state policies “encourage and protect the freedom of libraries and library systems.” Illinois Secretary of State Alexi Giannoulias, who also is the state librarian, specifically points to the First Amendment as inspiration for the bill, stating: “I initiated this legislation to stand up and fight for libraries, librarians, and the freedom of speech … This landmark legislation is a triumph for our democracy, a win for First Amendment rights, and a great victory for future generations.”
In 2024, Minnesota enacted SF 3567, which covered many areas of education reform. The section titled Access to Library Materials and Rights Protected forbids public libraries, including school libraries and media centers, from restricting access to material in any form based “solely on its viewpoint or the messages, ideas, or opinions it conveys.” Gov. Tim Walz, who signed the bill into law, stated that “(p)rotecting access to books means protecting access to the information and knowledge that our kids deserve.” This language echoes the First Amendment right to receive information and ideas.
Ongoing developments
Given the consistent attention in state legislatures to book bans and censorship in K-12 schools over the past few years, the situation will likely continue to evolve, both through lawsuits and further legislation.
To maintain awareness of new state legislation, some tools exist that maybe helpful. The American Library Association has an adverse legislation tracker, which is currently tracking legislation introduced in 2024. PEN America has been one of the leading investigators of the rise of book bans in K-12 schools and has a dedicated webpage for updates on book bans.
Elizabeth Sanders is an assistant professor and research, engagement and learning librarian in the Mary and John Gray Library at Lamar University in Beaumont, Texas.