As Michigan public and school libraries face calls from some parents and conservative groups to remove or restrict certain books, a federal judge in Texas has overturned a library’s removal of several books, many of them with racial or LGBTQ themes.

In last week’s ruling, U.S. District Judge Robert Pitman ordered the books returned to library shelves, citing U.S. Supreme Court precedent that forbids libraries from removing books based on “viewpoint or content discrimination.”

The issue has resonance in Michigan, where schools and library boards have been besieged with demands to remove books with LGBTQ or racial themes, citing the need to protect children from access to sexual or divisive topics. Officials faced large crowds at meetings, accusations of “liberal indoctrination” and, in one town, a vote to defund the library for refusing to remove certain books.

While a ruling by a federal judge across the country has no binding effect in Michigan, it could serve as a legal road map for public libraries, schools and free-speech advocates to push back against conservative attacks.

“(The Texas decision) shows that you have a judge who respects previous Supreme Court precedent and applied that precedent to that issue,” Brad Basanik, legal counsel for the Michigan Association of School Boards, told Bridge Michigan.

Noting a 1982 U.S. Supreme Court decision that formed the basis for last week’s order, Basanik said “the (1982) Pico case hasn’t gone anywhere and it’s funny, it seems like people have forgotten about it in trying to get books banned in school district libraries.”

In the Texas case, a small group of library patrons from tiny Llano County, near Austin, sued county authorities claiming their decision to remove books from circulation, without public notice, violated their First Amendment right to access and receive ideas and their 14th Amendment right to due process.

The works in question, which were taken off shelves and removed from the library’s catalog system, included a book for teens, “They Called Themselves the K.K.K.: The Birth of an American Terrorist Group,” Isabel Wilkerson’s “Caste: The Origins of our Discontents,” and other titles local officials deemed “pornographic” that promoted acceptance of LGBTQ views.

In his ruling, which is being appealed, Pitman drew a sharp distinction between libraries’ freedom to select books for their collections and the far more narrow leeway they are given to remove titles once they are on the shelves.

“Although libraries are afforded great discretion for their selection and acquisition decisions,” the judge wrote, “the First Amendment prohibits the removal of books from libraries based on either viewpoint or content discrimination.”

Pitman’s ruling relied on a 1982 case brought against the Island Trees Union Free School District on Long Island in New York. Students there sued after the school board, at the behest of a conservative parents group, removed nine books from junior high and high school libraries that were deemed “anti-American, anti-Christian, anti-Semitic, and just plain filthy.”

Among the banned books: ”Slaughterhouse-Five,” by Kurt Vonnegut; ”The Fixer,” by Bernard Malamud; ”The Naked Ape,” by Desmond Morris; ”Best Short Stories of Negro Writers,” edited by Langston Hughes, and ”Soul on Ice,” by Eldridge Cleaver.

The U.S. Supreme Court’s plurality opinion found that the free speech guarantees of the First Amendment limit schools’ authority to remove books from libraries because some deem them offensive.

Speaking for four of the justices, William Brennan wrote that schools “rightly possess significant discretion to determine the content of their school libraries,” but he said “that discretion may not be exercised in a narrowly partisan or political manner.”

Brennan continued, writing that if “a Democratic school board, motivated by party affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students.”

A flurry of objections in Michigan 

In Michigan, several school districts and public libraries have faced scrutiny from residents about the content of certain books. Recently, the Lapeer County prosecutor raised doubts about the book “Gender Queer: A Memoir,” a book that includes LGBTQ themes and has illustrations of sex acts. In Forest Hills Public Schools near Grand Rapids, the superintendent recently apologized for removing six books without consulting library media specialists or teachers. (The books are now back on the shelves.)

Banasik, of the school board association, told Bridge that the Texas ruling breaks no new ground since the 1982 Pico decision already established the First Amendment implications of removing library books.

“Books cannot be arbitrarily removed from a school district library just because a group of parents disagree with the contents of those books,” Banasik said. “Because if districts follow those demands, they are likely violating the First Amendment rights of the students in that school district.”

Don Herzog, a University of Michigan law professor, who specializes in constitutional and First Amendment law, agreed.

Library officials have wide discretion when selecting books, he said. For example, they can choose to buy more science fiction books because that’s what their patrons are interested in. Or they could choose to buy books that support Donald Trump.

But “everything flips” when the book is already on the shelf, Herzog said. Then, the library official cannot just remove the book because he or she disagrees with the book’s content.

The federal judge in Texas said something similar, finding Llano County library officials “removed the books at issue to prevent access to viewpoints and content to which they objected.”

But Lansing attorney Dave Kallman, a supporter of the “parental rights” movement that seeks more parental input on school decisions, including on what books are available to students, said the legal rationale being applied by the courts is troubling.

He said it was a “logical inconsistency” to give officials at public libraries wide discretion to select books but not to remove them. And he said the Texas case did not raise any new arguments related to the legal discussion over book bans.

He also noted that public libraries are not the only places where people can access certain ideas or books. One solution might be to have certain library books require parental consent for children to check them out. He likened this to how parents can opt out from having their children participate in sex education classes.

“Are we just going to have a power struggle until one side wins or the other is crushed?” Kallman said. “Or are there any accommodations or middle ground here?”

PEN America, a nonprofit that celebrates free expression, said it counted 41 instances of book bans across four school districts in Michigan during the 2021-2022 school year. The organization will soon release data on bans from the 2022-2023 school year.

“We imagine (the decision in the Texas case) is instructive at least as a reminder to people that public libraries are not meant to be run in a very ideological, narrow way,” said Kasey Meehan, program director of PEN America’s Freedom to Read program.

The ACLU of Michigan is likewise monitoring “potential book bans across the state,” said Jay Kaplan, the ACLU of Michigan’s LGBTQ+ Rights Project staff attorney, in a statement to Bridge.

Last November, the civil liberties group wrote to Michigan superintendents and school board presidents urging them to resist efforts to remove books from school libraries.

“For LGBTQ+ youth who are isolated at home, in school, or in their community, access to LGBTQ+ representation or information in books and literature can be a refuge — and in some cases life-saving,” the letter said.

Noting past court precedent, the ACLU added that removing books based on an author’s message or point of view “paves the way for an unending series of attempts by one group or another to cleanse a school of reading material based on what a vocal faction finds objectionable.”