Appeals court weighs challenge to Iowa ban on school books with sexual content

A federal appeals court heard arguments Tuesday about whether to uphold a lower-court ruling blocking Iowa’s schoolbook ban and a provision that prohibits the teaching of gender identity and sexual orientation through sixth grade.

The case could have far-reaching implications for free speech and censorship in education beyond Iowa.

Members of the 8th Circuit U.S. Court of Appeals in St. Paul appeared reticent, based on their questioning of attorneys during nearly a half hour of arguments, to affirm a district court’s order granting the preliminary injunction.

Two federal lawsuits have been filed arguing the state law violates the free speech rights of students, authors and book publishers. The challenges were filed by Lambda Legal and the ACLU of the Iowa on behalf of LGBTQ students, their families and the LGBTQ advocacy organization Iowa Safe Schools, and another from publishing company Penguin Random House on behalf of authors, a parent, teachers and school librarians.

Two of the three judges on the panel questioned whether plaintiffs should be challenging the state law as a whole as opposed to filing more specific lawsuits against specific school districts over their removal of books and interpretation of the law.

U.S. Circuit Judge Ralph Erickson, an appointee of former President Donald Trump, suggested litigants should take small bites and try to “slap it down, piece by piece” by suing individual school districts.

“Because I think what's going on here is you've got the school districts are in a dead panic,” Erickson said. “They're applying (the law) more broadly than the language of the statute itself provides.”

He said certain books that have been removed from some schools, such as “1984,” “Animal Farm” and “Portrait of Dorian Gray,” are "probably seen to have artistic merits such that application of this statute is inappropriate.”

U.S. Circuit Judge James Loken, a George H.W. Bush appointee, questioned “why does the First Amendment care” if a book is removed from a school library as long as it's still available at a local bookstore.

Attorney Fred Sperling, representing the book publishers, said school libraries are intended to provide access to books for all children, regardless of whether they can buy it at the bookstore, and that students have a right to receive information that is age-appropriate. The law, though, makes no differentiation as to what is appropriate for certain grade levels.

“There's no distinction whatsoever as to age, and so books that might be fully appropriate for a 12th-grader might not be for a ninth-grader or sixth-grader or third-grader or kindergartner; it makes no distinction whatsoever,” Sperling said.

He also disagreed with Erickson and Iowa Solicitor General Eric Wessan, who argued for the injunction to be overturned, claiming there are routes for “as-applied” challenges to the state law.

“The question before this court is not whether some of the books the state defendants can point to may be constitutionally removed from school libraries,” he said. “They can, and they have been under existing law before the adoption of SF 496. The question that’s actually before this court is whether this overbroad and vague statute is constitutional, and it’s not.”

What does the Iowa law do?

Iowa Senate File 496 bans books and curriculum depicting or describing sex acts from school libraries or classrooms, with the exemption of religious texts. It also prohibits programs, “promotion” and instruction about sexual orientation and gender identity in kindergarten through sixth grade, outside of health curriculum.

SF 496 requires that public-school libraries contain only “age-appropriate materials,” defined to specifically exclude “descriptions or visual depictions of a sex act” as defined in Iowa Code.

The legislation was passed by Republican lawmakers and signed into law by Gov. Kim Reynolds in May 2023. It went into effect last summer, but was halted in December before enforcement measures, including possible disciplinary action for educators, began.

Iowa AG defends law

Iowa Republican Attorney General Brenna Bird appealed the district court’s ruling halting the law, arguing some schools may be applying the law too broadly.

“As a mom, I know how important it is for parents to have a say in what books and materials their kids have access to,” Bird said in a statement. “Today, we made the case in court to defend Iowa’s law that protects kids, families, and parental rights. It is common sense.”

In his order blocking the law until litigation is settled, U.S. District Court Judge Stephen Locher called the law “wildly overbroad."

The judge noted the law has resulted in removal of several hundreds of books, including, among others, non-fiction history books, classic works of fiction, Pulitzer Prize-winning novels and books meant to help students avoid being victimized by sexual assault.

Many of the books contain LGBTQ characters and content of particular relevance to LGBTQ students.

Since the injunction, many books and resources initially pulled from Iowa classrooms and school libraries have been returned.

The law also that prohibits the teaching of gender identity and sexual orientation through sixth grade. Locher wrote the law defines those terms generically and would apply to the teaching of all gender identity and sexual orientation, not just about LGBTQ individuals.

Locher left in place a portion that requires educators to notify parents when a student asks to be called by different pronouns. Because the plaintiffs involved already are publicly LGBTQ, that portion of the law does not apply to them and they don’t have legal standing to file the challenge, Locher ruled.

What did attorneys argue?

Lambda Legal and ACLU attorneys said the law discriminates against particular views and content and limits access to information.

They argue books being removed under the “age-appropriate” standard are not pornography and fail to meet the definition of obscenity as determined by the U.S. Supreme Court. Their suit argues the law prohibits books without any evaluation of the material as a whole or its literary, artistic, political or scientific value.

Thomas Story, an ACLU staff attorney, said the law violates public school students’ rights “to speak, read and learn freely.”

“It restricts expression in terms that are so vague and overbroad that no two schools seem to agree on what they mean,” Story told reporters following the hearing. “But the fact is that over 3,000 books were removed. Student (gay-straight alliances) were closed and LGBTQ+ students across the state were forced into silence. That is unconstitutional. And we will continue to defend the rights of Iowa students as this case moves forward.”

Wessan, the solicitor general, contended the law regulates government, not private, speech. Wessan argued there's no First Amendment harm as a result.

“No matter which way the court rules, either it will be extending the government's speech doctrine to public school libraries for the first time, or it will be for the first time, finding some type of First Amendment protected right for school library books in the Eighth Circuit. Either way, new ground is going” to be broken, Wessan said.

He also argued the district court’s preliminary injunction erred by applying a novel “obscenity-light” standard for minors rather than applying precedents that already decide the issue at hand.

Wessan said the lower court used an overly broad reading of the law to find “constitutional infirmities” to halt enforcement, and that state and federal courts require a narrower reading. For example, despite how the law is written, he argued it does not apply to books related to gender identity and sexuality, only to mandatory or compulsory instruction in certain grades.

“This law was done by the Iowa Legislature with the intent of helping support Iowa's youth and in helping to curate the way that Iowa students learn,” he said. “And a facial injunction against key parts of this law have stymied that. … The state believes that if this injunction is vacated, the school districts, the schools and the students will understand what the law means. And as time moves forward, this will become an integral part of Iowa's educational landscape.”

What’s next?

The underlying litigation and constitutional issues raised challenging SF 496 are paused while the Eighth Circuit considers the appeal.

Christy Hickman, attorney for the Iowa State Education Association teachers union, said plaintiffs could potentially file individual suits against districts over book removals or other aspects of the law, should the injunction be reversed, but that has not been discussed.

“It’s been fairly clear that there’s been over-removal … based on fear of breaking the law,” she said. “ … And I don’t see that changing unless we get some sort of acknowledgment from the Department of Education that there needs to be some additional guidance so that librarians, schools boards, other educators know exactly how to implement this law … and not put their career in jeopardy.”

Comments: (319) 398-8499; tom.barton@thegazette.com