DOJ investigates local Texas decision to remove LGBTQ books from school libraries

The Biden Justice Department is investigating a Texas school district over its removal of books featuring LGBTQ characters. As far as I know, decisions about which books school libraries should contain have always been made locally, or perhaps at the state level. But under this, the most radical administration in American history, that norm seems to be in jeopardy.

If the DOJ pursues the matter and goes to court, its legal theory, I assume, will be that Title IX of the Civil Rights Act protects LBGTQ students and that operating school libraries that lack books with LGBTQ characters (or removing such books from these libraries) violates Title IX.

As to the first proposition, Title IX says:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

It’s a stretch to say that the “on the basis of sex” language extends protection to sexual preference. And it’s absurd to suppose that when Congress enacted Title IX it intended to extend protection that far.

However, the Supreme Court has interpreted Title VII’s prohibition of employment discrimination “because of sex” to protect lesbians, gays, etc. (We can thank Justice Gorsuch for that bit of “textualist” legerdemain.) Thus, it’s quite possible that the first proposition I’m attributing to the DOJ would hold up in court.

But is it discrimination for a school library not to have books with LGBTQ characters? Immediately, we’re confronted with the question of what constitutes an LGBTorQ character. In academia, there’s an industry of professors who find such characters ubiquitous in literacy classics. I call this “counting the queers in Shakespeare.”

If one takes these professors seriously, surely every school library, including the ones in that Texas school district, has books with LGBTQ characters.

But those who are complaining to the DOJ have something different in mind. They are decrying the absence of openly LGBTQ characters in the stacks.

However, only a small percentage of literary works contains such characters, and a smaller percentage still of the kinds of books that, at least in my day, found their way into school libraries. Thus, it’s difficult to infer discrimination from the absence of such books.

Moreover doing so would require an assessment of literary merit. Let’s hope courts are unwilling to get into that business, even if the Biden DOJ chooses to.

But what about when books that were already present are removed? In this case, it seems to me that school authorities are making some sort of value judgment — not about literary merit, but rather about certain kinds of identities or sexualities.

Traditionally, these are the kinds of judgments that — one way or the other — local school authorities are empowered to make. It was likely a value judgment to include books with LGBTQ characters, and there’s no obvious reason why those judgments can’t be reversed.

Does Title IX stand in the way of a reversal? It depends on how one looks at the question. The way look at it, there is no true discrimination against LGBTQ students. They have the same library rights as every other student. And I see no basis for inferring a federal right of access in school libraries to books with LGBTQ characters and content.

The other way of looking at this is to argue, as the ACLU does, that the decision to remove books stigmatizes LGBTQ identities. To that extent, it creates a hostile environment and is discriminatory in this sense.

But I question whether a hostile environment claim, even if cognizable under Title IX, can be established here. Not being able to find books with LGBTQ characters in the school library isn’t likely to create hostility towards, or to result in harassment of, LGBTQ students. Nor is it likely to make it difficult for students to go about their studies. These are the kinds of injury necessary to give rise to a hostile work environment under Title VII, where the law of “hostile environment” has developed.

The ACLU also argues that a ban deprives LGBTQ students of the opportunity to read books about their experiences. I’m not sure there’s a right to read books about one’s experiences. In any case, students can read about LGBTQ experiences with a few clicks on the internet or, in most cases, a visit to the town library.

The Washington Post’s story about the DOJ investigation quotes a lecturer at Harvard’s graduate school of education about the implications for religious books at public schools. He predicts (fears?) that if the argument for requiring LGBTQ books takes hold, religious activists will demand greater availability and teaching of materials about religion.

Title IX bans only sex discrimination and the First Amendment comes into play if religious content in public schools becomes an issue. But it’s still fair to wonder about the implications of the ACLU’s theory for religion.

It’s also fair to wonder whether the federal government should wade into a cultural war about what books must be available in school libraries. However, I suspect that the Biden administration is up for that fight.

Even if it wins the fight in court, which is far from certain, it might come out of the struggle a loser due to resentment by the electorate of federal overreach in education. Maybe Biden should consult Terry McAuliffe about this.