Can Even a Short K-12 Library Book Ban Lead to a Civil Rights Violation? OCR Says Yes
From School Board member resignations to administrator terminations, from Federal free speech lawsuits to schools pulling the Bible from library shelves, there is no shortage of stories about the challenges facing school districts that ban books based on allegedly explicit content. The U.S. Department of Education recently added to the fraught environment surrounding book bans in response to a complaint alleging that the removal of certain books led to violations of students’ rights under Title IX and Title VI. Specifically, several students spoke up at a school board meeting saying their school district removed books because of LGBTQIA content or authorship. Others claimed books were removed because they championed principles of diversity, equity, and inclusion or were written by authors or contained characters who are people of color. The students reported feeling targeted, marginalized, and unwelcome because of the book bans. Despite those reports, the school district did not address the concerns under its policies prohibiting harassment based on race, color, or national origin (Title VI policies) or sex, gender, sexual orientation, or gender identity (Title IX policies).
Although OCR resolved the complaint before making a finding of whether a violation occurred, the type of resolution agreement used can only be considered when OCR’s investigation has identified concerns through its investigation. The agreement is therefore clear notice to schools that OCR expects them to treat allegations of harassment based on the removal of books from school libraries as they would any other allegation of misconduct based on a protected status. Unless and until a lawsuit—like the one filed by the Texas AG recently, challenging a similar OCR investigation in Texas—is successful, schools should brush up on their civil rights responsibilities to limit the risk of an OCR investigation in response to removals of library books. Let’s talk about this case a bit more and what those responsibilities are.
“Check Out” This Case
So what happened in the case? In the fall of 2021, Georgia’s Forsyth County Schools received complaints from parents and community members that certain library books contained sexually explicit or LGBTQIA content. In January 2022, the District’s Media Committee convened and posted the following statement on the district’s media centers’ webpages:
“Forsyth County Schools’ media centers provide resources that reflect all students within each school community. If you come across a book that does not match your family’s values and/or beliefs, and you would prefer that your child does not check that book out, please discuss it with your child.”
At the same time, the superintendent removed certain books from school libraries based on a finding that they contained sexually explicit content. Communication regarding the removals denied that the decision was related to LGBTQIA content or moral issues.
At the February 2022 board meeting, some parents called for additional books to be removed. Some referred to books with allegedly sexually explicit content, but others pointed to LGBTQIA authorship or content, DEI principles, or racial issues in the books.
Students also spoke at the board meeting, including some who were concerned about the impact of removing the books. Students expressed that the book ban was creating a harsh environment, safe spaces were disappearing, the book ban silenced minority voices, it was hard for some students to find books with main characters who look like them, and the district’s actions signaled that it did not care about diversity.
In short, OCR’s agreement in this case makes clear that when controversies arise in the school community related to a protected status—whether it be related to library books, instructional materials, facilities access, athletics, or discipline—in addition to responding to the original issue or dispute, districts should be attentive to the impact on students.
A summer review committee read eight of the books that the superintendent had removed and the District Media Committee, based on the recommendations of the review committee, returned seven of the books to the shelves. No other complaints were made, but no actions were taken by the district to address the impact of the book removals.
OCR “Throws the Book” at FCS
OCR acknowledged that the screening process conducted by Forsyth County Schools was limited to sexually explicit material. It did not find that any decisions were improperly made based on race, color, national origin, sex, sexual orientation, or gender identity. It found the following, however:
“Nonetheless, communications at board meetings conveyed the impression that books were being screened to exclude diverse authors and characters, including people who are LGBTQI+ and authors who are not white, leading to increased fears and possibly harassment.”
Accordingly, OCR was concerned that the district had knowledge that its book screening process may have created a hostile environment for students under Title IX and Title VI. The school district did not, however, take the required steps designed to address it.
Note that OCR’s decision did not say that in all cases you must investigate a complaint related to book bans, let alone that you must find that a book ban violated Federal civil rights law.
The school district agreed to enter into a voluntary resolution agreement in lieu of OCR completing its investigation. The resolution agreement requires the district to issue a statement to students explaining the book removal process and offering supportive measures to students who may have been impacted by the book removal process. The agreement also requires the district to administer a climate survey of the student bodies at each middle and high school to assess whether additional steps need to be taken.
Handle Complaints “By the Book”
So, what exactly are you required to do if your school district becomes aware that a student feels book decisions are negatively impacting them based on race, sex, or another protected characteristic? You should apply your school’s policies and procedures addressing harassment based on a protected status “by the book.” Easy right?
Not really, particularly in a case like this one where both Title IX and Title VI are implicated. Why is that? Title IX and Title VII have different standards for what information triggers a school’s responsibilities and how a school must respond. Here’s a rundown:
|Title IX (sex, gender, sexual orientation, gender identity)||Title VII (race, color, national origin—including religion)|
|What notice must the District have?||“Actual knowledge” (information is known suggesting that discrimination or harassment is, has been, or may be occurring)||“Actual or constructive knowledge” (information known or should have known suggesting that discrimination, including harassment, is, has been, or may be occurring)|
|Whose notice requires a District response?||Any employee’s knowledge|
|Notice of what requires a District response?||“Unwelcome conduct” based on sex, gender, sexual orientation, or gender identity that is “so severe, pervasive, and objectively offensive” that it “effectively denies equal access to the [District’s] educational program or activity” and “against a person in the United States”||“Unwelcome conduct” based on race, color, or national origin (including religion) that is “sufficiently severe, persistent, or pervasive so as to interfere with or limit an individual’s ability to participate in or benefit from” the District’s program|
|How must a District generally respond?||Promptly and in a manner that is not deliberately indifferent (unreasonable in light of the known circumstances), including offering supportive measures to an alleged victim and explaining how they can file a formal complaint.||Adequately to redress the hostile environment, including a response that is reasonable, timely, and effective to redress the problems experienced as a result of the harassment|
|When should supportive measures be offered to the alleged victim?||In all cases where there is the required knowledge, with or without a complaint on file|
|What is considered a complaint triggering an investigation?||Only a written, “formal” complaint signed by the alleged victim or the parent/guardian of a minor alleged victim||Any report of conduct, whether or not there has been a written or otherwise “formal” or signed complaint|
|When can informal resolution be used?||Only if a formal complaint has been filed or signed by the Title IX Coordinator.||In all cases where there is required knowledge, with or without a complaint on file.|
Notably, in both the Title IX and Title VI contexts, the harassing acts need not be targeted at the complainant or even at anyone, so long as the acts are unwelcome, motived by race, color, national origin, sex, gender, sexual orientation, gender identity, and meet the other requirements outlined above, and the District has the requisite knowledge, a response is required.
This may seem overwhelming but don’t fret. Your District should have very well-trained Title IX and Title VI Coordinators. If you don’t, reach out to one of us and we can easily get you set up with resources to ensure that you do. Once a report of conduct reaches the Title IX or Title VI Coordinator, they will conduct necessary outreach and, if they determine that the complaint justifies an investigation, oversee that process. Note that OCR’s decision did not say that in all cases you must investigate a complaint related to book bans, let alone that you must find that a book ban violated Federal civil rights law.
For the rest of your community, the key thing to communicate is that if any person becomes aware of conduct that, if proved, would be unwelcome conduct based on a protected status like sex, gender, sexual orientation, gender identity, race, color, or national origin (including religion), they should promptly report that conduct to the District’s Title IX and Title VI Coordinators. This is true even if the District knows that the underlying decision at issue in the student concern was not undertaken for a discriminatory reason. And students do not have to file formal complaints for a district to have an obligation to respond to an allegedly hostile environment, speaking at a board meeting, writing in a student newspaper, or confiding in a trusted staff member may be sufficient.
How do you get that message across? Many school districts use compliance network videos, but those videos may not address these important issues reiterated by OCR. We recommend you rely on training from a trusted resource, like Thompson & Horton, that incorporates the most current expectations and understandings from OCR. For example, Thompson & Horton prepares affordable, short, engaging videos for employees that cover these and other important civil rights compliance efforts. Summer is the perfect time to get these trainings set up, so use your break to put your district in the best position to avoid an OCR complaint like the one addressed here.
In short, OCR’s agreement, in this case, makes clear that when controversies arise in the school community related to a protected status—whether it be related to library books, instructional materials, facilities access, athletics, or discipline—in addition to responding to the original issue or dispute, districts should be attentive to the impact on students.
If you have questions about this or other civil rights issues, please reach out to our Thompson & Horton Title IX team.