BY HANK REICHMAN

A Texas school superintendent has now apologized after one of his top officials advised teachers that, if they have a book about the Holocaust in their classroom library, they should give students access to a book from an “opposing” perspective.  Nevertheless, the assault on classroom and school libraries in Texas and elsewhere, part of the dangerous movement to enact and enforce laws against “critical race theory” and “divisive concepts,” continues.

That suggestion by the executive director for curriculum and instruction in the Carroll Independent School District in Southlake was patently ridiculous, of course, but it illustrated nonetheless the challenges that educators face in attempting to implement vague and ill-conceived legislation like the new Texas law, House Bill 3979.  That measure states that teachers who choose to discuss current events or “controversial issues of public policy or social affairs” should also explore the issues “from diverse and contending perspectives without giving deference to any one perspective.”  It also prohibits schools from teaching lessons that might make students feel “discomfort, guilt, anguish, or any other form of psychological distress” because of their race.

But who is to determine which issues are controversial and which contending perspectives must be presented?  How are schools to determine what might make some student feel distress?  Teachers and school librarians, underpaid and under repeated attack already, may well be excused if they become overcautious, especially where administrators and school attorneys have repeatedly shown a marked tendency to be “risk-averse.”  As one study concluded about school libraries, even before such legislation began sweeping the country,

In most cases, the fear of reprisal from parents and school administrators can cause school librarians to avoid purchasing books that may be considered offensive. . . .  Simply learning that a controversial book resides in the school library is enough for parents to get involved and petition the school administrators to remove the book.  At the end of the day, librarians are not responsible for telling children what they can and cannot read.  They are, however, responsible for ensuring the books are available to any student who wants to read or learn about a particular topic.

The Holocaust controversy came just days after the Carroll school board reprimanded a fourth-grade teacher who had kept a copy of This Book Is Anti-Racist in her classroom library following complaints from a mother who said the book violated her family’s “morals and faith.”  The rubric for determining which books should be removed from Carroll classroom libraries asks teachers to grade books based on whether they provide multiple perspectives and to discard those that present singular, dominant narratives “in such a way that it … may be considered offensive,” according to a copy of the training document obtained by NBC News.

“How am I supposed to know what 44 sets of parents find offensive?” a Carroll teacher asked.  “We’ve been told: ‘The parents are our clients.  We have to do what they want.’  And this is what they want.”  One high school English teacher said it would take her months to review every book in her classroom and that based on the guidelines she would most likely need to get rid of many of them.  She said she no longer feels safe keeping  any books by Nobel Prize-winning author Toni Morrison.  “One of the questions we’re supposed to ask is ‘Does the writer have a neutral stance on the topic?’” the teacher said.  “Well, if you are Toni Morrison, how can you have a neutral stance toward racism?  Now history is being depicted through this rose-colored lens, and all of this is creating a chilling effect that’s going to hurt our students.”

Texas is not the only state where such things are happening.  According to one account,

in places ranging from Kootenai County, Idaho, to Ann Arundel County, Maryland, to Lafayette Parish, Louisiana, to the town of Frisco, Texas, local efforts are underway to limit what libraries offer — especially when it comes to promoting racial equity and gender inclusivity.

Some locales are making opposition to critical race theory — either through books or community lectures and discussions — their core focus, but other locations are adding virulent opposition to comprehensive sex education and LGBTQIA+ acceptance in a trio of concerns.  What’s more, while most of these opposition groups purport to be homegrown and grassroots, all have access to the support and resources (including model legislation) of numerous national right-wing organizations.  These include the Alliance Defending Freedom, the American Legislative Exchange Council, the Family Research Council, Family Watch International, the Heritage Foundation and Project Blitz, as well as right-wing media outlets such as Breitbart, Fox News, the Daily Wire, Newsmax and the Washington Free Beacon.  All told, NPR reports that as of late June, at least 165 local and national groups are working to “disrupt or block lessons on race and gender,” in both traditional classrooms and public spaces.

Moreover, as Kristin Pekoll, assistant director of the American Library Association’s (ALA) Office for Intellectual Freedom writes, “People’s perception of offensive content is not limited to the written word.  Censorship beyond books can happen anywhere—in private and public institutions, large school districts and small public libraries, rural universities, state prisons, and urban government buildings.  The variety of resources and services challenged is just as broad, including films, videos, music, magazines, newspapers, games, internet access, databases, programs, use of meeting rooms, exhibits, displays, artwork, reading lists, and online resources.”

For me, these events have evoked memories.  For over thirty years I edited a newsletter published by Pekoll’s office that reported on efforts to censor library and school books and other materials.  I also wrote three editions of a book, Censorship and Selection: Issues and Answers for Schools, in which I wrote:

Legitimate constraints on intellectual freedom in education are not always easily distinguished from those that are improper.   Nevertheless, a distinction can and must be made between selection and censorship.  Intelligent selection of educational materials is by no means an easy task.  The interests and opinions of a wide variety of groups need to be balanced, and it is likely that charges of censorship or bias will be hurled at even the most diligent school system.  Still, clearly articulated and professionally formulated selection policies and procedures differ fundamentally from the mode of operation of the censor.  . . .

Where the censor seeks reasons to exclude materials, those engaged in the process of selection look for ways to include the widest possible variety of textbooks, library materials, and curricular supplements within the context of a well-defined curriculum with clearly articulated goals.  Censorship responds to diversity with suppression; the selection process seeks instead to familiarize students with the breadth of available images and information, while simultaneously erecting essential guideposts for the development of truly independent thought.

In 1986, the AAUP empowered a Commission on Academic Freedom and Pre-College Education, which issued a report, “Liberty and Learning in the Schools: Higher Education’s Concerns.”  That report declared,

Uncertainty as to whether any particular instructional material may be suppressed can only inhibit teachers and librarians in the exercise of their professional judgment. . . .  And if teachers and librarians cannot exercise their professional judgment as to what is educationally sound, within the legitimate constraints imposed by the schools, then the way is open for outside pressure groups to determine the limits of unobjectionable discourse in the schools.

In those years Texas was also a major center of such external pressures on schools and libraries.  Most famously, Mel and Norma Gabler, a Christian fundamentalist couple with no children in school, ran a textbook-screening organization, Educational Research Analysts (ERA), out of their Longview, Texas, home, that in the 1970s and ’80s exerted extraordinary influence not only on what textbooks were authorized for use in Texas but also on textbook acquisition nationwide.  Although at the time 21 other states used a statewide textbook adoption system, Texas was the country’s largest single purchaser of textbooks, which gave the Gablers enormous influence.  Making the Texas list was practically a guarantee of profit for a publisher; failure to make it might doom a book, or a whole series of books.  Thus most publishers were understandably sensitive to pressures to make their books acceptable for use in the state’s 1100 public school districts.

In public hearings the Gablers would challenge books that advanced the theory of evolution and other “controversial” topics, with remarkable success.  They and their volunteer assistants would inundate the textbook commission with thick binders of materials and lengthy oral testimony, effectively bullying authorities into conformity with their far-right fundamentalist views.  As a contemporary report in The Texas Monthly put it, “Members of the textbook committee, facing the Gabler team across an enormous conference table, occasionally showed wry amusement at some of their complaints, and textbook authors and publishers seated in a gallery of folding chairs at one end of the smoky room sometimes muttered in irritation or disbelief as they heard their books attacked, but it was clear they all took this East Texas grandmother quite seriously.”

After their deaths, the Gablers’ work was continued by Neil Frey, who took over their operation in 2004.  A former Texas Education Agency official confirmed to a media site run by the University of Texas-Austin’s School of Journalism, that, as an official, he observed “publishers make changes as a result of information from Frey.”  That included a notable 2004 flap when the Texas Board of Education defined marriage as being only between one man and one woman, per Frey’s recommendation.  Today, the advent of new printing techniques has supposedly made it less burdensome to print special “Texas editions” that are only offered in that state, but some publishers undoubtedly choose to save money by printing one set of books nationwide that reflect ERA’s concerns.

As recently as 2016, one reporter wrote that ERA’s

 website features some disturbing guides and analyses of textbooks that cover science, health, social studies and more. I took it upon myself to lose some brain cells by reading an “analysis” of some of the reading materials Texas approved for public schools (which ERA disapproves of because it doesn’t fit its agenda).

In one review, which drove me nuts, ERA criticized a book for “political correctness (e.g., anti-white, anti-male, anti-Christian bias).”  What do they mean by that?  Well, they complain about books that supposedly highlight “Meanness Of Whites To People Of Color.”

Under that heading, they list “The People Could Fly,” an acclaimed short story that some Texas 8th graders read from a textbook titled Elements of Literature.  ERA’s beef is that this story has an anti-white bias because it’s a “Folk tale about oppressive whites, mistreated slaves in Old South.”

So, this group was offended that this story was being “mean” by misrepresenting white slave owners! According to ERA, it’s “mean” to accurately portray history through literature. Can you imagine? People being “mean” to others because of the color of their skin? Slave owners knew nothing about that, right?

This was before the group’s approach had, for all intents and purposes, been validated by the Texas Legislature!

In 1982, the U.S. Supreme Court addressed the issue of school library book censorship in the case of Board of Education, Island Trees Union Free School District No. 26, et al. v. Pico.  While there was no single majority opinion in the case, the controlling opinion was written by Justice William J. Brennan, Jr., joined by justices Thurgood Marshall and John Paul Stevens and in part by justices Harry Blackmun and Byron White.  Brennan acknowledged that the Court agreed

with petitioners that local school boards must be permitted “to establish and apply their curriculum in such a way as to transmit community values,” and that “there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political.”

At the same time, however, we have necessarily recognized that the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment.  In West Virginia Board of Education v. Barnette (1943), we held that under the First Amendment a student in a public school could not be compelled to salute the flag.  We reasoned: “Boards of Education … have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights.  That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

Later cases have consistently followed this rationale.  Thus Epperson v. Arkansas invalidated a State’s anti-evolution statute as violative of the Establishment Clause, and reaffirmed the duty of federal courts “to apply the First Amendment’s mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry.”   And Tinker v. Des Moines School Dist., held that a local school board had infringed the free speech rights of high school and junior high school students by suspending them from school for wearing black armbands in class as a protest against the Government’s policy in Vietnam; we stated there that the “comprehensive authority … of school officials” must be exercised “consistent with fundamental constitutional safeguards.”   In sum, students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” and therefore local school boards must discharge their “important, delicate, and highly discretionary functions” within the limits and constraints of the First Amendment. . . .

. . . the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library.  Our precedents have focused “not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas.”  And we have recognized that “the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.”  In keeping with this principle, we have held that in a variety of contexts “the Constitution protects the right to receive information and ideas.” . . .

In sum, just as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner, such access prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.  Of course all First Amendment rights accorded to students must be construed “in light of the special characteristics of the school environment.”  But the special characteristics of the school library make that environment especially appropriate for the recognition of the First Amendment rights of students.  A school library, no less than any other public library, is “a place dedicated to quiet, to knowledge, and to beauty.”  Keyishian v. Board of Regents (1967) observed 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. . . .

Petitioners rightly possess significant discretion to determine the content of their school libraries.  But that discretion may not be exercised in a narrowly partisan or political manner.  If a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books.  The same conclusion would surely apply if an all-white school board, motivated by racial animus, decided to remove all books authored by blacks or advocating racial equality and integration.  Our Constitution does not permit the official suppression of ideas.  Thus whether petitioners’ removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners’ actions.  If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners’ decision, then petitioners have exercised their discretion in violation of the Constitution.  To permit such intentions to control official actions would be to encourage the precise sort of officially prescribed orthodoxy unequivocally condemned in Barnette.

Applying these principles to the facts of that case — which involved a school board on Long Island, in New York — the Court found that these did “not foreclose the possibility that petitioners’ decision to remove the books rested decisively upon disagreement with constitutionally protected ideas in those books, or upon a desire on petitioners’ part to impose upon the students of the Island Trees High School and Junior High School a political orthodoxy to which petitioners and their constituents adhered.”

It remains to be seen whether today’s Supreme Court — or, for that matter, any other current court — would similarly determine what should be painfully obvious, that the actions of the Texas and other legislatures in limiting materials on “critical race theory” or “divisive concepts” also evidence unconstitutional intentions.

Contributing editor Hank Reichman is professor emeritus of history at California State University, East Bay; former AAUP vice-president and president of the AAUP Foundation; and from 2012-2021 Chair of AAUP’s Committee A on Academic Freedom and Tenure. His book, The Future of Academic Freedom, based in part on posts to this blog, was published in 2019.  His Understanding Academic Freedom has just been published.