Steve Nuzum continues to track the legal arguments and battles over reading restrictions in South Carolina.
Schools and districts in which they work, have a long-standing and necessary role in deciding which content to provide for students, while also respecting the rights of students and employees.
It’s a tricky balancing act that arguably can’t be perfectly executed even in the best of circumstances. The particular requirements of the United States Constitution, which offer far broader protections from government censorship of speech, mixed with a somewhat ambiguous history of decisions by US Courts, make it challenging to know which decisions to make.
And we certainly aren’t living in the best of circumstances when it comes to intellectual freedom. Federal and state attacks on the speech and access to information of professors, K-12 teachers, librarians, students, and government employees are at perhaps an all-time high.
South Carolina’s anti-book ban lawsuit
Perhaps nothing in South Carolina has highlighted the uneasy balance schools must (or at least should) seek more starkly than the recent lawsuit filed by the South Carolina Association of School Librarians (SCASL), along with several public school students and their families, against Superintendent of Education Ellen Weaver.
The complaint, filed by attorneys from the South Carolina ACLU on behalf of SCASL and the students, alleges that that Regulation 43-170, which grants the South Carolina Board of Education broad powers to ban books in South Carolina schools– and which has resulted in the highest number of statewide book bans in the country– violates both the First and Fourteenth Amendments of the Constitution.
While the First Amendment claims are significant, the Fourteenth Amendment claims may be of even more interest to librarians and teachers.
The Fourteenth Amendment includes the language, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
According to the complaint, “The Regulation is also unconstitutionally vague under the Fourteenth Amendment because its text (and Defendants’ even more confusing instructions for enforcement) fail to provide librarians and other educators with sufficient certainty about what materials do and do not amount to a ‘description or depiction’ of ‘sexual conduct.’”
Because of this vagueness, librarians and teachers are essentially unable to follow the regulation, even if they don’t already believe that doing so is unconstitutional.
Indeed, vagueness seems like it must be the intended objective of the regulation.