A federal court in Des Moines heard arguments Thursday about a state law that bans books with sexual descriptions from school libraries and prohibits instruction on LGBTQ topics through sixth grade.
The hearing covered arguments in two separate lawsuits. One comes from Penguin Random House and other major book publishers who claim the law illegally restricts access to books.
Another is led by Iowa Safe Schools, a nonprofit that advocates for LGBTQ youth. It argues the law attempts to erase the presence of LGBTQ students and teachers. Both groups are seeking an injunction to block the state from enforcing the law.
SF 496 went into full effect last summer after the Eighth Circuit Court of Appeals lifted an earlier injunction against it. The ruling said legal challenges could go forward, but the lower court should use a different legal test to weigh whether it is constitutional.
An attorney for the state argued state lawmakers have latitude to regulate school libraries and K-6 instruction to make them consistent with the state’s educational mission.
Opponents said the law is broad and vague. They point to cases where schools cancelled or restricted the activities of Gender-Sexuality Alliances (GSAs), student groups that support LGBTQ youth. They also said it has led schools to remove books that have long been available to students.
Federal Judge Stephen Locher did not put a timeline on when he plans to issue a decision, but said he would try to respond quickly.
Age-appropriate or age-indifferent
SF 496 says that books in school libraries cannot include “any material with descriptions or visual depictions of a sex act.”
“It’s more evidence really of the chilling effect of the law. And schools are applying the law very, very broadly because they are afraid of the very serious disciplinary track that it puts someone on to disobey the law."Nathan Maxwell, Lambda Legal attorney
In its second attempt to block the law, Penguin Random House is narrowing its lawsuit to challenge one piece of that restriction: the law’s ban on “descriptions” of sex acts.
The law directs schools to ensure that the books in their libraries are “age-appropriate.” But Frederick Sperling, who argued the case for Penguin Random House, said the law is too broad. It creates a situation where a book is withheld from a senior in high school because it’s not age-appropriate for an elementary student.
“It’s actually age-indifferent — age-oblivious,” Sperling said at Thursday’s hearing. “It applies the same standard for 3rd to 12th grade.”
Sperling gave examples of some of the hundreds of book titles that have been removed from schools. The list includes literary classics that are often assigned as part of Advanced Placement courses on literature — such as 1984. It also includes historical nonfiction — like The Candy Bombers, a book about the airlift of food into West Berlin over a Russian blockade in 1948.
Assistant Solicitor General William Admussen said many books were likely removed unnecessarily. He pointed to rules adopted by the Iowa Department of Education that say a simple reference to a sexual act does not put a book in violation of SF 496.
If schools are misinterpreting the law, he said, the publishers and others should direct their cases at those instances, not the law itself.
Sperling said it’s not feasible to go from one district to another challenging their decisions to remove books. The problem, he said, is that the school districts don’t understand the standard the state is trying to follow.
Judge Locher asked Admussen if any teachers have been disciplined under the law so far. A first violation of the law leads to a written warning. A second violation can lead to discipline by the state board that oversees teachers and administrators, which could result in loss of licensure.
Admussen said he’s not aware of any disciplinary cases.
Nathan Maxwell of Lambda Legal, which is representing Iowa Safe Schools in the other lawsuit against SF 496, said that does not mean no harm has been done.
“It’s more evidence really of the chilling effect of the law,” Maxwell told reporters after the hearing. “And schools are applying the law very, very broadly because they are afraid of the very serious disciplinary track that it puts someone on to disobey the law. And it’s not really reasonable to expect a teacher or librarian to put their livelihood on the line to test those limits.”
Opponents also argued the law was unnecessary because libraries already curate their collections to make sure they're age-appropriate.
K-6 gender identity and sexual orientation instruction prohibition
Thomas Story, an attorney for the ACLU of Iowa, which argued on the side of Iowa Safe Schools, argued educators and students are also unsure of what’s covered under the part of the law that prohibits K-6 instruction and other school activities related to gender identity and sexual orientation.
Educators are scared to lose their licenses, he said, and queer students are afraid that they will be outed to homophobic parents. The result is self-censorship from a law that is too broad: an infringement on First Amendment rights, Story said.
Admussen argued that schools are overcompensating to meet the terms of the law. Only mandatory curriculum, such as classroom materials, are affected. Locher said that the court’s job does not include correcting misinterpretations of the law. If the law is indeed constitutional, it would be the state’s job to properly educate the districts on how to enforce it. Quoting from former U.S. Supreme Court Justice Antonin Scalia, he said a law can be “stupid, but constitutional.”
"[The state] can't have it both ways. The bottom line is, if they can't even tell us what it applies to, then how are the teachers, how are the students, supposed to figure it out?”Thomas Story, Iowa Safe Schools Attorney
Locher then asked Admussen a series of hypothetical questions to gauge what would be appropriate under the prohibition.
Can a teacher inform students that they are able to join GSAs, Locher asked.
Yes, if it is neutrally stated, Admussen said.
If a student has two parents of the same sex, Locher asked, is a fifth grade teacher allowed to answer questions about that relationship?
Yes, Admussen said, because answering questions one-on-one outside of class is not part of mandatory instruction.
Can a teacher assign a book with same-sex parents to students, Locher asked.
It would have to be neutral, but it is not prohibited, Admussen said.
Locher pointed out that just by having a character with same-sex parents a book could imply that such a relationship would be accepted, which would not be neutral. He asked what assurances educators have that the state will follow the definitions explained in the hearing.
Admussen said he would not be able to comment because that would be a policy analysis, not law.
“[The state] can't have it both ways,” Story said after the hearing. “The bottom line is, if they can't even tell us what it applies to, then how are the teachers, how are the students, supposed to figure it out?”
The state has confirmed the K-6 LGBTQ ban does not apply to library books because the statute only affects mandatory curriculum.
Opponents say that’s inconsistent with the state’s arguments over library restrictions. Borrowing or reading books from the school library is not mandatory. But the state has defended restrictions on books with sexual content by saying libraries support school curriculum — which puts libraries within the state's authority.
Story argued that state lawmakers and school districts have different educational missions. Legislators can handle licensing teachers, but it is up to the districts to determine how to educate about gender identity and sexual orientation. A blanket prohibition would do more harm than good, he said.
