A federal judge plans to decide by Jan. 1 whether to block enforcement of a new education law that bans books containing sexual acts from school libraries and prohibits instruction related to sexual orientation and gender identity in K-6 classrooms.
The hearing in a Des Moines courtroom Friday combined arguments in two separate lawsuits challenging SF 496 as unconstitutional.
One legal challenge, from Iowa Safe Schools and a group of LGBTQ students, claims the law has eroded the inclusive school environments of students who are gay or transgender, and has suppressed the free expression of their identities.
Another lawsuit from teachers, a student and the publisher Penguin Random House argues the law creates an unreasonably strict standard for what books are allowed in school libraries. The text of the law itself, one attorney argued, would be banned.
Here’s a summary of some of the arguments made in court.
Government speech
Iowa Assistant Attorney General Daniel Johnston argued the law’s ban on libraries containing “any material with descriptions or visual depictions of a sex act,” as it is defined in Iowa criminal code, has accomplished what was intended.
“Books with graphic images of oral sex were circulating in Iowa schools, and before this law schools were refusing to remove them,” Johnston said.
Johnston referred to Gender Queer, an illustrated memoir by Maia Kobabe that has been a regular target of parents and lawmakers supporting SF 496. The book about Kobabe discovering eir nonbinary identity includes panels depicting oral sex.
Judge Stephen Locher pointed out that districts have removed hundreds more books in addition to Gender Queer, including Pulitzer Prize and Nobel Prize winning novels. He asked if it is appropriate for schools to have removed such revered titles.
It probably was, Johnston said, if those books violate the text of SF 496. Although, he added, he also suspects some districts have read the law too broadly and have “over-removed” books.
It is up to the legislature, not a judge, to decide what is appropriate for school libraries, Johnston said. He claimed that the book policies in SF 496 are a form of government speech, which protects it from First Amendment claims.
ACLU of Iowa attorney Thomas Story disputed that idea outside the courthouse in downtown Des Moines.
“It’s outrageous,” Story said. “If this were government speech then it is discriminatory speech. If this were government speech then the government could remove every book, everything from your kids’ libraries, and that is not at all consistent with the Constitution.”
Attorney Fred Sperling, who argued the case for Penguin Random House, said in the hearing that a school library cannot be taken as an expression of the government’s point of view because the books in a library often present opposing views, or views which the government disagrees with.
He gave the example of Adolf Hitler’s Mein Kampf. It may be reasonable to include in a library for the study of anti-Semitism or the rise of Nazism, he said, but it would not be expected to represent the point of view of the State of Iowa.
Library books excluded from LGBTQ ban
In recent court filings and in Friday’s hearing, attorneys for the State of Iowa said the legislature’s ban on instruction related to LGBTQ topics in kindergarten through sixth grade only applies to compulsory education — books and lessons that are required by the district — but not books students choose voluntarily from the library.
Attorneys representing LGBTQ students said that is at odds with the way school districts have interpreted that provision of the law, so far.
“It would have been nice if the state would tell everybody that a long time ago,” Story said after the hearing.
“Indeed, we see schools as they are applying this law are in fact interpreting it to include the library program and are removing books despite what the state has said in briefing and in court today,” added Lambda Legal attorney Nathan Maxwell.
Story told Judge Locher that some school districts have directed teachers to remove LGBTQ pride flags from classrooms or have eliminated their Gender and Sexuality Alliance, or GSA, clubs because they feared sponsoring the clubs could be considered a way of promoting a particular gender identity.
Johnston responded that, from the state’s perspective, ending a GSA club is not supported by the law as it is written.
“The law itself doesn’t regulate any private speech,” Johnston said. “They’re opposing what they believe the law represents, not what it says.”
State attorneys argue the text of the law is neutral in how it is applied, regardless of a person’s sexual orientation or gender identity.
If the law is neutral, the ACLU’s Story said, a teacher should be as comfortable reading students a book about a transgender character as a book with a cisgender character. But, he argued, that is not the environment the law creates.
“When you have the governor standing up to read a book that must be banned, it’s not the sex scene from 1984, it’s All Boys Aren’t Blue,” Story said, referring to George Johnson’s memoir about growing up Black and queer. Gov. Kim Reynolds read an excerpt from the book in a television interview where she was advocating for school book restrictions.
The law presents potential consequences for educators depending on the federal court decision. Starting Jan. 1, the provision covering books containing sexual acts directs the Iowa Department of Education to investigate alleged violations, although rules drafted by the department have yet to be finalized.
A teacher or administrator found responsible for multiple violations could face a disciplinary hearing before the Board of Educational Examiners, which licenses Iowa educators.
