NOTE: On 5/13/22, Erie 1 BOCES hosted a program[1] regarding school library materials management. That same week, the Erie County Bar Association hosted a CLE on the same topic[2].
At both programs, school district library personnel discussed the ethics of their professions. They also shared their personal experiences with collection management issues, including attempted censorship of library materials.
Both sessions were inspired by concerns, rooted in the current political climate, that school districts could feel pressure to sidestep policy and direct the removal or limitation of "controversial" library materials without due process.
The law, policy, and case law covered at the session was extensive. Below is a summary of the major take-aways, in a "Do's and Don'ts" format.
QUESTION
What are the "legal do's and don'ts" of school district library collection management in New York?
[1] "Collection, Selection, Objection": the recording can be located through your regional BOCES or school district library system.
[2] More information on this "Continuing Legal Education" seminar is here: https://eriebar.org/product/2433-more-than-a-book-ban-advising-municipalities-schools-and-libraries-during-a-book-challenge/
DO ensure your school district library system, school district, or school has a robust and well-thought-out "school library materials policy"[1] ("Policy") governing selection, procurement, cataloging, lending, concerns, re-evaluation, and removal of library materials.
DON'T forget to train every person with a role in that Policy[2] on how it works, and why the district has it in place; this includes spending time on the law, regulations, and ethics[3] that govern it.
DO ensure that experienced lawyers and policy-makers have reviewed the Policy for both legal compliance, and compatibility with the unique environment at your district or school.
For example, if your school has an active PTA that likes to fund-raise and donate books to the school library, the method of accepting those donations should conform to the "selection" part of the Policy.[4]
DON'T adopt a Policy and then let it gather dust. A policy that governs selection, procurement, cataloging, lending, concerns, re-evaluation, and removal of school library materials is a vital part of a school's library--which is a vital part of a school.
DO make sure your Policy honors the professionalism and qualifications of your school librarians and media specialists. When considering how your district's Policy applies in real-world situations, remember that your school library staff are trained in the selection of library materials. Because of that, your district's Policy will delegate responsibility for selection and cataloging to those professionals[5] ...and the law in New York, policy of your district, and job descriptions will back that authority up.
DON'T create a potential liability for your school by taking quick steps related to library collection management issues without checking with your district's Policy and lawyer. Cases such as Pico[6], the seminal case regarding school board over-reach regarding school materials, happened because school leadership took hasty action without considering policy.
DO maintain familiarity with the most basic tenets of the law in New York regarding school district library systems and school library operations. This includes Education Law § 1709(1), Education Law §1711[2] [c, d], Education §Law 701, Education law §702, Education Law §310, 8 NYCRR § 90.18 and 91.2. For a good primer on these, review the NYSED Commissioner Decision 14,229 "Matter of Carney."[7]
Notably, the case law and NY Education Commissioner decisions emanating from these laws and regulations show that ad hoc decisions about curricular and library materials imposed without consulting policy can lead to legal claims, creating unnecessary media attention, community tension, and expense for school districts.
DON'T impose "creative work-arounds" such as using "soft" directives to influence school library collection issues without following policy.
Hypothetical examples of such "creative work-arounds" include:
These are just a few examples...but anything that would remove or restrict access to school library materials, without applying due process, risks a legal concern and tripping the factors found unconstitutional in Pico.
DO build an administrative and educational team that is READY to respond to concerns about curricular and library materials.
When it comes to content choices in the classroom or in the library, no Superintendent, Principal, or school board chair can do it all.
A team consisting of the school librarian, experienced teachers and administrators, the district's lawyer, and as needed, the school board, should be ready to respond promptly when there are materials concerns. [9]
DO remember that for every school library material challenged, there are people being impacted by the challenge--including yourself.
These are tough times for school administrators. Across the country, there is a great awakening to the importance of school boards and the leadership of public institutions such as libraries.
This is good, but it has turned school districts and libraries into zones of potential controversy, with administrators charged with keeping the peace--and people threatening lawsuits on all sides.
At such times, there are three things that, when combined, can create refuge and stability:
First: a cool head.
Do not take an ad hoc action when presented with a library materials concern; lead with policy.
Second: a good team.
Rely on your people. They will help ensure legal compliance, the well-being of students, and good service to the community.
Third: a solid policy.
Have it, know it, follow it.
Administrators who find the culture wars on the doorstep of their schools cannot avoid controversy. But when controversy arrives, if they DO follow policy, and DON'T take ad hoc steps in a panic, school administrators can provide a structure for communities to navigate open and honest discussions[10] of library materials, community values, and their educational environment.
Below is a template[11] for organizing a response, when a library materials[12] issue happens at your school.
School library material concern worksheet
For internal and personal use only
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Material at issue (title, author, media):
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Material catalog information (year acquired, category, shelf location):
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First date person using form became aware of complaint: |
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Complaint made by:
Note: Person is the "Complainant"
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Is the complainant a parent or guardian?
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Is the Complainant part of a group?
Attach group information
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Based on their relationship to the school or community, does the Complainant have standing to make a complaint?
If yes, continue with worksheet... |
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Is the Complainant following the formal complaint process?
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Has the Complainant been provided with a copy of the policy governing how to make a complaint? |
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Name of school librarian
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Other school staff involved in complaint or concern
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What is/are the relevant policies? [attach all policies that apply or might apply]
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What people are assembled to help with or to effect response ("Response Team")?
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What professional ethics do the members of the response team have to consider when working on this issue? [attach copies of any relevant codes of ethics as confirmed by team member]
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Is there a student involved?
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What person on the response team is the primary contact with the student?
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Is there any safety or well-being concern for any person involved?
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Is there any media or social media discussion of this issue?
[attach printouts of relevant content] |
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Is there a relevant union contract or other contract? [attach contract or relevant section] |
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Who is the spokesperson for the school or district on this matter?
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Track relevant deadlines set by policy or commitment to involved parties:
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Deadline:
Deadline:
Deadline:
Deadline:
Deadline:
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What was the final outcome of this issue?
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When was this matter considered to be complete? |
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[1] Across New York, this type of policy has many names, and sometimes, is covered by numerous policies. New York prioritizes local control of school district policy, so a diversity of approaches is right and proper. The point is that no matter what it is called, or how many policies end up applying, a district has a policy that covers selection, procurement, cataloging, lending, concerns, re-evaluation, and removal of school library materials. Very often, this will need to be coordinated across school library systems.
[2] For the rest of this article, we're using "Policy" with a capital "P" to denote whatever policy or combination of policies a district has adopted. That's right, with a capital "P" that rhymes with "C" that stands for "cool" (as in, "We're cool; we have a Policy for this").
[3] The ethics of the profession of school librarian as emphasized by NYSED are found at http://www.nysed.gov/curriculum-instruction/teaching-learning-intellectual-freedom
[4] Sometimes, this might mean having to say "No, thank you," or "We need to take a different approach," to the PTA. Just another day in school administration.
[5] This is another factor that will vary from district to district in New York, but every policy I have seen grants a significant role to the librarian. This is why a good hiring pipeline for qualified school librarians and media specialists is critical.
[6] Found at: https://www.oyez.org/cases/1981/80-2043 . This US Supreme Court case ruled that "although school boards have a vested interest in promoting respect for social, moral, and political community values, their discretionary power is secondary to the transcendent imperatives of the First Amendment."
[7] Found on the NYSED site at http://www.counsel.nysed.gov/Decisions/volume39/d14229
[8] This one is a HUGE concern, because in addition to potential legal and regulatory violations (about which countless law review articles and books have been written), it sets a precedent of parent/guardian pre-approval for ALL school materials...something that is antithetical to the democratic process by which public schools operate.
[9] "Promptly"...but not immediately. The benefit of having a team ready to go, and letting parents or community members know that your school is organizing a response per your district's policy, is that it signals that you take the complaint seriously, but also gives the situation breathing room.
[10] Yes, I know "open and honest" can often sound "angry and passionate."
[11] As with all templates on "Ask the Lawyer," this one is illustrative only. A district or administrator wanting to develop such a resource should confirm a final draft with their lawyer.
[12] This template is for library materials concerns; there are some different factors when there is a challenge to curricular materials.
Tags: Book challenges, Censorship, First Amendment, Intellectual Freedom, Policy, School Board, School Districts, School Libraries, School Policy
[NOTE: We didn't get this as a submission to "Ask the Lawyer", but we wish we had...]
Our library board is considering a resolution to bar displays celebrating Pride Month. The ban focuses on, but is not limited to, displays in children's/YA areas. Is this a legal issue?
YES. Expressly barring library displays based on categories protected by law, such as sexual orientation and gender, is--among other things--a legal issue.
This is not to say a library can't pass a policy on library displays. A library could easily implement a policy that requires displays to be timely, that they be reflective of the needs of the community, and that they display an array of materials from different sources. Such a policy, done thoughtfully and with director and attorney input, could be perfectly appropriate, legal, and in line with the mission of a public library.
In addition, such a policy could address and provide established and well-thought-out procedures for the library to address:
But what such a policy could NOT do (without tripping legal concerns) is make blanket rules about display content based on categories that align with identities protected by law. [1]
Further, if such decisions are made in a vacuum, without policy (like an ad hoc board resolution), they run the risk of being both discriminatory and "arbitrary and capricious." Such a ban--especially coupled with the dialogue and community interaction that might precede and follow it--could set the stage for:
In addition, there are many local municipalities that have their own protections for certain protected categories, including sexual orientation and gender identity and expression. So there is a risk of implicating not just state and federal, but local law, as well.
Of course, such a ban is FAR MORE that a legal issue. But amidst everything else, it IS a legal concern. And while their primary duty is to serve the library's mission, public library trustees also have a fiduciary duty to guard against claims that the library has violated state, federal and local civil rights laws.
How would a library board walk back having taken such a position? Ideally, very quickly and decisively, with confidential legal advice from their local attorney[3]. This is because in and of itself, such a ban might not be enough to trigger legal action...rather like how just vodka isn't enough to make a martini. But who knows when the vermouth will show up?
That said, if a board is at this point (and especially if the library director and staff are watching, without being consulted[4]), even after serious consideration of a such a policy or directive, change is possible.
After all, each and every library trustee and employee in New York (and even their lawyers) can always learn more about the New York Human Rights Law,[5] federal civil rights law, and perhaps even the protections in their municipality.
And public libraries are there to enable learning by everybody.
Everybody.
[1] In New York, that includes: race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, marital status, or status as a victim of domestic violence.
[2] https://www.nysenate.gov/legislation/laws/EXC/296 This links brings the reader to a partial list of barred discriminatory actions. Here is an excerpt (in other words, there's more): " 2. (a) It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement,
because of the race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, marital status, or status as a victim of domestic violence, of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof, including the extension of credit, or, directly or indirectly, to publish, circulate, issue, display, post or mail any written or printed communication, notice or advertisement, to the effect that any of the accommodations, advantages, facilities and privileges of any such place shall be refused, withheld from or denied to any person on account of race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability or marital status, or that the patronage or custom thereat of any person of or purporting to be of any particular race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex or marital status, or having a disability is unwelcome, objectionable or not acceptable, desired or solicited.
[3] And perhaps a check-in with their "directors and officers" insurance carrier.
[4] This type of issue is part of why the author consistently recommends trustees be trained on non-discrimination policies (including sexual harassment).
[5] https://dhr.ny.gov/new-york-state-human-rights-law
Tags: Board of Trustees, Discrimination, Ethics, Policy, Displays, First Amendment, Intellectual Freedom, New York Civil Rights Law
