District Court Enjoins Books "Quarantine" at Department of Defense Schools
A district court has held that the Department of Defense likely violated the First Amendment rights of students to receive books, including 1984 and The Handmaid's Tale.
The Department of Defense Education Activity (DoDEA) provides pre-kindergarten, elementary, and secondary education to approximately 67,000 dependents of military personnel around the world. In response to President Trump’s Executive Orders banning “gender ideology” and “discriminatory equity ideology” from federally funded education, DoDEA placed hundreds of school library books in “quarantine” and reviewed them for permanent removal. Additionally, DoDEA educators were instructed to revise their curricula to remove discussions of gender, race, immigration, and various facets of developmental health and to cancel all “cultural celebrations.”
Parents of children attending DoDEA schools challenged the book removals and limits on classroom discussions. The district court recently granted their motion for a preliminary injunction. This post will focus primarily on the book “quarantine” or removal issue. That issue has arisen in conflicts relating to “book bans” at public school and municipal libraires across the nation. As I’ll explain, the court’s reason for ruling in favor of plaintiffs on the book removal and curricular issues was largely the same.
At bottom, the Trump Administration lost this case for the same reason it has lost many others in the first ten months: Its insistence on imposing official orthodoxies regarding race, gender, patriotism, and other subjects offends a bedrock First Amendment principle that the government lacks the power to do so.
The Book “Quarantine” Process
As noted, in response to several Executive Orders issued by President Trump, Defense Department-operated K-12 schools “quarantined” library books subject to removal and identified various necessary revisions to classroom discussions. The district court described the implementation of the book removal process as “inconsistent,” “unstructured,” and “opaque.”
Plaintiffs made repeated requests to school authorities to identify books being quarantined or subject to removal, to no avail. The government tried to claim its process for deciding which books to remove was privileged, as part of its “deliberative process.” The court rejected that argument and considered the process in connection with the motion for a preliminary injunction.
The “quarantine” process was, in a word, sloppy. The court was “uncertain whether the list of books Defendants submitted . . . provides a comprehensive, accurate, and timely picture of the book removals at Plaintiffs’ individual schools in the first instance.” Moreover, the court observed that “Defendants provided little detail to this Court on how the submitted list was prepared.”
As in other areas, it appears that President Trump issued his edicts and agencies scrambled to implement them. That meant, again as it has in other circumstances, using a net broad enough to remove any materials that touched on gender, race, sexuality, immigration, activism, and a host of other topics. Under the “quarantine” process, any library books “potentially related to gender ideology or discriminatory equity ideology topics as defined in the Executive Orders were relocated to the professional collection for evaluation.” Under the President’s edicts, all materials relating to “un-American, divisive, discriminatory, radical, extremist and irrational theories” were subject to removal.
In all, the government submitted a list of more than 500 titles that were subject to “quarantine” at the five schools at issue in the litigation. Among the titles plaintiffs were denied access to were Handmaid’s Tale by Margaret Atwood, The Giver by Lois Lowry, Nineteen Eighty-Four by George Orwell, or Ground Zero by Alan Gratz. Not surprisingly, many of the books on the “quarantine' list related to LGBT issues.
The court also concluded that the government was unclear as to who was making the book removal decisions and on what pedagogical grounds. For example, it was not clear whether decisions were being made at the regional, individual school, or some other level. The court noted “it is further uncertain who, among the DoDEA professionals with ‘continuous live access’ to the list, is responsible for consolidating the list or ensuring its accuracy and comprehensiveness.” The record indicated that titles were not being temporarily “quarantined” but removed from circulation. Finally, if educators were not making decisions about which books to remove or which classroom discussions were inappropriate, then how could the government claim these decisions were based on sound pedagogy?
The First Amendment Claim
The First Amendment claim regarding the book removals centered on two issues. The government claimed that its book removals were a form of government speech to which the First Amendment did not apply. In the alternative, it claimed that its removals met the applicable First Amendment standard.
Does the First Amendment Apply?
The Supreme Court has held that the First Amendment’s Free Speech Clause restricts government regulation of private speech and does not apply to the government’s own speech. The “government speech” doctrine posits that when the government speaks, it can choose what to say and what not to say without satisfying the viewpoint neutrality standards that apply when it regulates the speech of private individuals.
To determine whether the government is acting as a speaker rather than a regulator of private speech, the Court has directed that we consider evidence of (1) the history of the expression at issue, (2) the public’s likely perception as to who (the government or a private person) is speaking, and (3) the extent to which the government has actively shaped or controlled the expression.
The district court rejected the government’s argument that the removal of books from DoDEA libraries constitutes government speech.
History: The court concluded that “[p]ublic school libraries have historically been loci of intellectual freedom, where students are free to inquire, to study and to evaluate, to gain new maturity and understanding.”
Attribution: As to who the public would attribute removal decisions to, the court wrote, “It is furthermore doubtful that the public—or DoDEA students, for that matter—perceives the books in school libraries as conveying a government message.” The “hundreds of library books in DoDEA libraries, from a wide range of authors,” are not the kind of display or symbol likely to be attributed to the government. As one of the Justices put it, if library books are government speech, the government is “babbling prodigiously.”
Control: While the government is obviously involved in curating books for Department of Defense school libraries, the court concluded this element also favored plaintiffs. The government speech doctrine contemplates that selectivity will facilitate communication of some official message and not suppression of private speech. Here, the court determined, the government was not actively shaping or controlling its own message but instead using its control to suppress private speech.
The First Amendment Standard for Book Removals
Having determined the First Amendment applied to the book removals, the court next confronted which standard to apply. That issue is complicated, in part, because the Supreme Court has never definitely resolved it. In Island Trees School District v. Pico (1982), the Court handed down a splintered decision regarding public school library book removals. A majority of Justices did not agree on the First Amendment standard applicable to such decisions.
Pico remains the Court’s only precedent relating to public school library book removals. Here is how the district court described its holding:
“In Pico, a plurality of Supreme Court Justices asserted that “local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’” 457 U.S. at 872 (plurality opinion) (quoting W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)).
In a concurrence, Justice Blackmun agreed that schools could not impermissibly suppress books based on the ideas within them, though he rejected a constitutional “right to receive information.” Justice White’s concurrence concurred in the judgment, but found it unnecessary to “issue a dissertation on ... the First Amendment” absent further findings of fact from the district court.
The government argued that the fractured decision in Pico did not adopt any standard and thus the case has no precedential value. The district court disagreed, interpreting Pico as invalidating book removals that are based on partisan or political motivations.
In the alternative, the government urged the district court to apply a standard drawn from a Supreme Court decision regarding curricular speech in the K-12 context. Under that standard, government has discretion to regulate school-sponsored speech, defined as “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.” However, the school’s actions must be “reasonably related to legitimate pedagogical concerns.”
The district court concluded that plaintiffs will likely succeed under both Pico and the “curricular speech” standard.
Pico: The court concluded that “[p]laintiffs have demonstrated a likelihood of showing that Defendants’ stated motivations for removing over 500 library books set forth an impermissible partisan or political motivation.” It reasoned that “Defendants concede, that the book removals stem directly from the President’s Executive Orders. . . . The record is clear that by removing books, Defendants intended to deny Plaintiffs access to ideas that they, by virtue of the Presidential EOs, found distasteful, ‘radical’ or ‘divisive.”
Curricular Speech: The court was skeptical that school library book collections constitute “school-sponsored speech." But even if they did, “Defendants have not demonstrated legitimate pedagogical interests behind the book removals.” The court reasoned that the removals implemented President Trump’s Executive Orders, “ which are not limited to or inclusive of any pedagogical standards and priorities.” As the court explained, “Merely limiting books ‘on gender invidious race and sex ideology and discriminatory equity ideology’ and ones with discrimination, as these concepts are defined by the EOs, is not sufficient to establish a pedagogical concern.” Nor did the government differentiate the quarantined books among different schools and age groups. “Surely,” the court observed, “if Defendants were concerned with pedagogical interests through book removals, they would be able to tender evidence of the age-level perspective they consider and detailed information on the specific pedagogical standards at issue.”
Curricular Revisions
As I mentioned at the top, the plaintiffs also challenged school curricular revisions intended to implement President Trump’s “gender ideology,” “DEI,” and other Executive Orders. Here is the heart of the district court’s analysis on that issue:
The Court agrees with Plaintiffs that Defendants have not put forward any purported pedagogical interests around the effectiveness or age appropriateness of curriculum to justify removal. In all candor, the Court cannot contemplate the pedagogical basis for banning the “Gender and Sex” module from Advanced Placement Psychology; lessons on immigration in elementary school; chapters on “Human Reproductive System, Menstrual Cycle, and Fetal Development,’ Abuse and Neglect,” and “Adolescence and Puberty” from health education textbooks; and celebrations related to “identity months,” including Black History and Women’s History Months.