By: Graham Bosch
Recent national polls have shown that Americans overwhelmingly reject[1] various forms of book-banning and take such actions into consideration when voting for their legislators.[2] Even so, the United States has seen an unprecedented rise in book bans in the past several years, with 1,648 individual titles banned in 138 school districts across 32 states between July 2021 and June 2022.[3] Now, Arizona has joined the book-banning train: House Bill 2495 took effect in September 2022. [4] The new statute prohibits Arizona public schools from exposing students to or using “any sexually explicit material in any manner,” including text, images, audio, or other media depicting “sexual conduct,” “sexual excitement,” or “ultimate sexual acts.” [5] State Rep. Jake Hoffman, the bill’s Republican sponsor, defended the bill by citing “hundreds of referenced materials” available to K-12 students that include drawings of male and female organs, as well as materials speaking openly about the importance of sexual health and exploration.[6]
A problem, however, is that this new law’s proponents — and the law itself — have been tremendously vague on which books and materials will be prohibited in schools. The statute’s language does not name any specific titles and could be interpreted broadly to cover any range of literature that mentions sexual activity or relationships.[7] According to Marisol Garcia, president of the Arizona Education Association (and a teacher herself), Arizona teachers have been scrambling to figure out whether their lesson plans need to change.[8] Garcia also pointed out that, despite the bill’s supporters pointing to a need for parental control over the materials used in public school curriculum, “[p]arents have always had access to what we teach [in] our curriculum. We have curriculum nights. We invite them.”[9] Gaelle Esposito, an education policy lobbyist at Creosote Partners in Phoenix, said they believe that newly passed laws like HB 2495 are a product of the election year, and that Republican politicians are “play[ing] politics to try to score points to look like they’re doing something when all they are doing is denying students the ability to have a rigorous education and putting educators and librarians in precarious positions for their own gain.”[10] Republican rhetoric appears to support Esposito’s contention, as the GOP frequently speaks out against “woke ideologies” and an alleged “war on parents” in education.[11]
Banning books from schools and libraries represents an affront to the First Amendment of the U.S. Constitution,[12] which prohibits federal or state[13] governments from passing laws that abridge the freedoms of speech and the press. The U.S. Supreme Court has previously held that “local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books,”[14] and that no state school official may prescribe their own political or religious beliefs on students.[15] The Court has noted that laws promoting state officials’ beliefs have been “inescapably condemned by [Court] precedents.”[16] The American Civil Liberties Union actively opposes banning books in schools, urging state courts to dismiss bans on literature addressing topics such as critical race theory and LGBTQ+ issues.[17] Emerson Sykes, a staff attorney for the ACLU, said the organization’s goal is to challenge book-banning laws in court because such laws “have absolutely no relationship to any legitimate pedagogical interest and, in fact, are purely partisan political tools.”[18]
Many books about topics that may make some parents uncomfortable still have legitimate educational purposes. For example, research by public health experts asserts that school-based sex education can “play[] a vital role in the sexual health and well-being of young people.”[19] In fact, a recent study found that comprehensive sex education in schools has produced outcomes including “appreciation of sexual diversity, dating and intimate partner violence prevention, development of healthy relationships, prevention of child sex abuse,”[20] and other objectively positive effects in school-aged children. It seems logical to assume that, were books depicting human anatomy subjected to a blanket ban in schools only to be waived with parental consent, some children in Arizona schools may be denied access to the literary materials necessary for comprehensive sex education.
Another significant risk of banning books containing textual depictions of “sexual conduct” or “sexual acts” is the banning of books depicting complex, honest experiences of people in the LGBTQ+ community. These stories can have a lasting positive impact on children by showing them both people who are similar to them and people who are different from them.[21] For example, for children of any age who identify as part of the LGBTQ+ community, seeing or hearing “their lives reflected in books at school creates an important sense of belonging within their class and school,” and “can help children feel more accepted in the real world.”[22] Similarly, children who do not identify with the LGBTQ+ community can benefit from books depicting different types of relationships, such as by gaining a “window into these experiences, often teaching empathy and understanding.”[23]
It seems likely that LGBTQ+ rights and issues were top of mind when Rep. Hoffman drafted his bill. Hoffman denied accusations that “homosexuality” was initially included in the bill’s definition of sexual conduct (even though it was), then reversed course and amended the bill to remove the word shortly before the House vote.[24] Critics of the law worry that its vague language — and the inclusion of homosexuality in the original draft — indicate a legislative intent to ban any mention of the LGBTQ+ community, whether sexual or not.[25] Hoffman’s retort in January that “[t]his is about acts of homosexuality, not being a homosexual,”[26] is less than convincing. No, it is more likely that Hoffman stands for the political right’s attack on schools as using “curriculum designed to sexualize our children,” as one conservative pundit put it.[27] Now that HB 2495 is state law, its hypothetical dangers become more acute. The law does allow for literature with serious educational, literary, artistic, political or scientific value.[28] But the parental consent requirement likely means that Arizona children in public schools will not receive equal educational benefits. Garcia, the president of the Arizona Education Association, emphasized that there is “no reason why policy makers should be passing these types of laws,” especially one “so mysterious and so vague” that teachers are unsure what they are allowed to teach.[29]
That the people who must comply with this new law — teachers and school officials — do not understand how the law will be applied creates a new and potentially damaging challenge for education in Arizona. The Supreme Court has a long-standing doctrine of invalidating laws for being unconstitutionally vague. The Court summed up its void-for-vagueness doctrine well in the 1926 opinion of Connally v. General Construction Co.: “[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.”[30] Although this law is unlikely to stand up to judicial scrutiny if (or when) it is challenged for vagueness, the statute’s lack of clarity poses significant potential danger in the meantime. It could open the door to sweeping book bans on subjects that parents find uncomfortable or deem inappropriate for their own children (or that educators fear parents will not approve). Laws like this one, as well as the thousands of book bans occurring nationwide today, threaten students’ and teachers’ rights under the First Amendment if they are allowed to remain in force. Book bans “are not spontaneous, organic expressions of citizen concern. Rather, they reflect the work of a growing number of advocacy organizations that have made demanding censorship of certain books and ideas in schools part of their mission.”[31] Without a clear picture of the real intentions behind this piece of legislation, Arizona schools face a major First Amendment crisis. Even the smallest infringement on students’ and teachers’ freedoms of speech and expression constitutes a looming slippery slope of restricted and penalized speech. The Supreme Court presented a good policy in 1971: “[I]t is largely because government officials cannot make principled distinctions [about what is offensive] that the Constitution leaves matters of taste and style so largely to the individual.”[32]
[1] Fred Backus & Anthony Salvanto, Big majorities reject book bans – CBS News poll, CBS News (Feb. 22, 2022), https://www.cbsnews.com/news/book-bans-opinion-poll-2022-02-22/.
[2] REPORT: Voters overwhelmingly oppose book banning in the United States, EveryLibrary Inst. (Sept. 19, 2022), https://www.everylibraryinstitute.org/bookbanningreport.
[3] Daniel Trotta, U.S. school book bans on the rise due to advocacy groups, report says, Reuters (Sept. 19, 2022), https://www.reuters.com/world/us/organized-groups-fuel-rapid-rise-us-book-banning-report-says-2022-09-19/.
[4] Scianna Garcia, Ban on sexually explicit materials in Arizona schools set to take effect, Cronkite News (Sept. 23, 2022), https://cronkitenews.azpbs.org/2022/09/23/arizona-book-ban-prohibiting-sexual-content-school-materials/.
[5] Ariz. Rev. Stat. Ann. § 15-120.02 (2022). (“Sexually explicit materials; prohibition; exemptions; definition”).
[6] Raphael R. Ruiz, What to know about a new Arizona law and how it could ban books in school libraries, Ariz. Republic (Oct. 3, 2022), https://www.azcentral.com/story/news/politics/arizona-education/2022/10/02/arizona-school-book-bans-what-know-house-bill-2495/10454106002/.
[7] Ariz. Rev. Stat. Ann. § 15-120.02 (2022).
[8] Raphael R. Ruiz, supra.
[9] Id.
[10] Id.
[11] @GOP, Twitter (Sept. 7, 2022, 3:22 AM), https://twitter.com/GOP/status/1567458154144743424. (“After years of halting students’ educations, Democrats are still pushing woke ideologies, mandates, and their war on parents.”)
[12] U.S. Const. amend. I. (“Congress shall make no law . . . abridging the freedom of speech, or of the press.”)
[13] First Amendment protections apply to the states by virtue of the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 666 (1925).
[14] Bd. of Educ. v. Pico, 457 U.S. 853, 872 (1982). (School board sought to remove books to “‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’ West Virginia Board of Education v. Barnette, 319 U.S., at 642.”)
[15] W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
[16] Pico, 457 U.S. at 872.
[17] Asher Lehrer-Small, The ACLU’s Fight Against Classroom Censorship, State By State, The 74 (Sept. 10, 2022), https://www.the74million.org/article/the-aclus-fight-against-classroom-censorship-state-by-state/.
[18] Id.
[19] Eva S. Goldfarb & Lisa D. Lieberman, Three Decades of Research: The Case for Comprehensive Sex Education, 68 J. Adolescent Health 13 (2021).
[20] Id. Results section of Abstract.
[21] The Benefits of LGBTQ+ Books for Kids, HarperCollins Publishers (2022), https://www.harpercollins.com/blogs/harperkids/lgbtq-books.
[22] Id.
[23] Id.
[24] Gloria Rebecca Gomez, House Republicans pass bill to prohibit sexually explicit materials in schools, AZ Mirror (Feb. 3, 2022), https://www.azmirror.com/2022/02/03/house-republicans-pass-bill-to-prohibit-sexually-explicit-materials-in-schools/.
[25] Jerod MacDonald-Evoy, Republicans advance bill banning descriptions of sex, homosexuality in Arizona schools, Tucson Sentinel (Jan. 26, 2022), https://www.tucsonsentinel.com/local/report/012622_az_book_ban_bill/republicans-advance-bill-banning-descriptions-sex-homosexuality-arizona-schools/.
[26] Id.
[27] Everett Piper, Three cheers for Arizona state Rep. Jake Hoffman, The Washington Times (May 1, 2022), https://www.washingtontimes.com/news/2022/may/1/three-cheers-for-arizona-state-rep-jake-hoffman/.
[28] Elliott Polakoff, Bill banning sexually explicit materials in Arizona public schools goes into effect, Arizona’s Family (Sept. 26, 2022), https://www.azfamily.com/2022/09/27/bill-banning-sexually-explicit-materials-arizona-public-schools-goes-into-effect/.
[29] Id.
[30] Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926).
[31] Banned in the USA: The Growing Movement to Censor Books in Schools, PEN America (Sept. 19, 2022), https://pen.org/report/banned-usa-growing-movement-to-censor-books-in-schools/.
[32] Cohen v. Cal., 403 U.S. 15, 25 (1971).
Graham (he/him) graduated from ASU’s Cronkite School in 2017 with a B.A. in Journalism & Mass Communication. He is a 2L at the Sandra Day O’Connor College of Law interested in property law, environmental law, and criminal law reform. Outside of law school, Graham enjoys traveling and enjoying nature with his wife, Sabrina, and their dog, Winston, caring for his house plants, and exploring local bars and restaurants wherever he might be.
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