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Brooklyn Law Review

Sarah Ryan

Abstract

While the constitutional text refers only to liberty, equality has been recognized as an implicit principle of the First Amendment. The guarantee of free speech ensures an equal opportunity for every voice to be heard. As school book bans proliferate, the consistent targeting of titles containing themes of race or LGBTQIA+ identity reveals a discriminatory motivation on the part of state actors. The resultant infringement on students’ right to receive information, as well as the unequal treatment of particularly-themed content would seemingly run afoul of both the First Amendment and the Equal Protection Clause. Given the broad discretion granted to schools when prescribing educational offerings suitable for student use, content-based restrictions in public schools are afforded greater lenience by the courts. Although school boards are expected to implement restrictions whilst adhering to established First Amendment principles, under the standard set forth in Board of Education v. Pico, a school may justify its removal of a book by merely demonstrating that the title lacks “educational suitability” or is “pervasively vulgar.” The lax nature of this standard has inadvertently created a loophole by which school boards can justify censorship through weak and subjective rationale. This Note argues that the Supreme Court should reexamine the holding in Pico to better address First Amendment concerns with regard to book bans in public school libraries. More specifically, the Court should utilize the tiered scrutiny framework of equal protection analysis to provide more clarity when determining whether a book may be removed beyond a mere consideration of the “educational suitability” of the material.

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