Lawsuit Challenges Banning Books with “Sexual Content” from Schools

Written By Greg Wilson

Skylar Laird/S.C. Daily Gazette

COLUMBIA — A rule barring books containing “sexual conduct” from the school libraries in the state is unconstitutional, teachers and K-12 librarians are arguing in a federal lawsuit filed Tuesday.

The state Board of Education has required teachers and school librarians to remove 21 books from classrooms and shelves since the regulation went into effect in June 2024. The board voted to allow six books to remain. One of those books — “Crank” by Ellen Hopkins — requires parental permission to check out.

The rule violates students’ right under the First Amendment to receive information, lawyers for the South Carolina chapter of the American Civil Liberties Union argued in the lawsuit, filed on behalf of three high school students, their parents and school librarians.

In addition to the rule, the organization also is challenging guidelines from the state superintendent that require agency employees to adhere to new federal policies surrounding race and gender.

“The SCDE will vigorously defend these commonsense policies, which set clear and legally sound standards for South Carolina’s public schools,” said Jason Raven, a spokesman for the Department of Education, in a responding statement.

In the meantime, the ACLU is asking a judge to return the books to shelves as the case makes its way through the court system.

The regulation, which the state board passed unanimously in February 2023, prohibits any books that contain “sexual conduct” as defined and listed in the state’s obscenity law.

When teachers and librarians called the rule too vague to understand, board members attempted to clarify it last November by reviewing 11 books staff members identified as likely to face challenges. However, the board’s decision to keep “1984” on shelves despite it including a scene where characters have sex caused even more confusion, the lawsuit claims.

Orwell “went right up to the line but never crossed it” in writing “1984,” said board member Christian Hanley, who requested the department-led review. A book could mention sex as long as it didn’t describe a sexual encounter in a way that allowed readers to visualize the act, Hanley said at the time.

What that might mean, however, depends on the reader, causing confusion among librarians, the lawsuit argued.

“This standard is highly subjective, and librarians do not know how to apply it,” the lawsuit reads. “Different people require different amounts of detail to form a mental image, and librarians do not know whose perspective matters.”

The education agency, the lawyers claim, has in turn denied students access to a broad range of books and other materials at school, potentially including literary classics, without a legitimate reason.

Uncertainty as to how school librarians should enforce the rule also goes against their constitutional right to due process, the lawyers argue in the lawsuit, which includes the 750-member South Carolina Association of School Librarians as a plaintiff.

‘A chilling effect’

Fearing some sort of penalty, some school districts and librarians have gone further, removing more than just the required books from their schools, according to the lawsuit.

For instance, the Berkeley County School District blocked students’ access to a state-funded online research program out of concern that some of its content might violate the regulation. Although the district resumed access for high school students, younger grades can’t access information designed for them to use, the lawsuit claimed.

Statewide, librarians afraid of losing their jobs and teaching licenses for violating the regulation have cut down on the books they add to their libraries, in some cases deciding not to buy any new fiction at all, according to the lawsuit.

Librarians face “the impossible task of discerning which material ‘describes’ sexual conduct and which do not,” the lawsuit reads. “The result has been a chilling effect in South Carolina schools, as librarians take a better-safe-than-sorry approach to avoid punishment.”

Students lose out on a valuable part of their education when books are removed from the library, according to the lawsuit. At least one of the books removed from shelves, “Half of a Yellow Sun” by Chimamanda Ngozi Adichie, appeared on an Advanced Placement exam in recent years as a possible text from which students could pull. Without access to that book, students’ scores might suffer, reducing their chances to earn college credit, the lawsuit argued.

Under the regulation, “it does not matter whether the school is an elementary or a high school,” the lawsuit reads. “It does not matter whether a book is pornographic or great literature.”

Beyond ‘sexual conduct’

Beyond the state’s rule on “sexual conduct,” lawyers for the ACLU went further to challenge the state’s response to Trump administration policies surrounding race and gender

In court filings, the lawyers point to a memo sent by State Superintendent Ellen Weaver to department staff in March.

In that memo, Weaver reiterated federal guidance that all department-provided materials should avoid mentions of transgender people or genders other than male or female. Nor should the department use any material promoting the idea that members of one race or sex are inherently superior to another, or that “the United States is fundamentally racist, sexist, or otherwise discriminatory.”

The memo said those standards apply to all department documents, policies, guidance and resources.

That guidance could cause the department to remove any number of books, textbooks or other material from schools that address difficult aspects of history, such as slavery, women’s suffrage, or the Civil Rights movement, the lawsuit claimed.

Books considered under regulation

Removed:

Kept:

Kept, with parental permission:

  • “Crank” by Ellen Hopkins

Greg Wilson
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