Elizabeth School District in Colorado has been sued by the American Civil Liberties Union for pulling books from its libraries that feature antiracism and LGBT themes. A similar case from Llano County in Texas is currently pending appeal before the Supreme Court of the United States.
The school district is represented by Jonathan Mitchell, a former Texas solicitor general who wrote the Texas Heartbeat Bill. Mitchell is also representing Llano County in its lawsuit. Llano is being sued for removing 17 books from the county library.
The American Civil Liberties Union (ACLU) is also involved in the Llano County lawsuit, having filed an amicus brief in favor of the individuals suing the county. An amicus brief is a legal analysis filed by an entity that is not a party to the case but is attempting to guide the court in its decision.
Llano County Lawsuit
Patrons of the Llano County Public Library sued the librarian and other custodians in a federal district court, alleging they removed 17 books from the library because of their treatment of racial and sexual themes. All of the books were tailored to children.
The issue before the court was whether someone may challenge a public library’s removal of books as violating the Free Speech Clause of the First Amendment.
The district court ruled that the library abridged the plaintiffs’ “right to receive information” under the Free Speech Clause and ordered the books to be returned to the shelves. On appeal, the U.S. Fifth Circuit Court of Appeals decided in May to reverse the district court’s ruling and dismiss plaintiffs’ free speech claims.
The majority opinion—authored by Judge Stuart Kyle Duncan—stated that although Supreme Court precedent sometimes protects one’s right to receive someone else’s speech, “plaintiffs would transform that precedent into a brave new right to receive information from the government in the form of taxpayer-funded library books.”
Judge Duncan said the First Amendment acknowledges no such right.
The case is currently pending appeal before the U.S. Supreme Court. The justices have yet to decide whether they will take up the case.
Elizabeth School District Lawsuit
The ACLU of Colorado sued Elizabeth School District after it removed at least 19 books from its school libraries, allegedly “based on the school board’s disagreement with the ideas they contain.”
Plaintiffs include two district students who are alleging “viewpoint-based discrimination” in violation of the First Amendment and its Colorado counterpart.
According to the ACLU, “These books were primarily by or about people of color and/or LGBTQ+ people and award-winning novels that explore race, inequality, and the challenges of adolescence.”
One of the novels removed was Toni Morrison’s “The Bluest Eye,” which depicts child molestation, rape, and incest. Another book taken off the shelves, “Crank” by Ellen Hopkins, features illegal sex acts.
The district court sided with the plaintiffs, ordering the school district to return the removed books to its libraries and prohibiting it from removing additional books “based on their views.”
Elizabeth School District has filed an appeal in the Tenth Circuit Court of Appeals.
Circuit Court Split
It is expected that the Tenth Circuit will rule against Elizabeth School District due to that court’s more liberal makeup. Considering the Fifth Circuit sided with Llano County, such a decision by the Tenth Circuit would set up a “circuit split.”
When two or more circuit courts reach diverging conclusions, it creates unequal applications of federal law in different jurisdictions. This inconsistency is often settled by the intervention of the U.S. Supreme Court.
The potential circuit split would likely propel both cases to the Supreme Court, deciding for the entire nation whether publicly funded libraries are allowed to remove books deemed to contain explicit content.
Mitchell declined to comment on pending litigation.
ACLU Colorado directed Texas Scorecard to a public statement made by Legal Director Tim Macdonald.
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