Put the Books Back on the Shelves

Judge orders military to restock banned race, gender books at base schools

A federal judge ordered the Department of Defense Education Activity to restock military base school library shelves with books on issues ranging from racism to gender ideology on Monday.

“This is an important victory for students in DoDEA schools and anyone who values full libraries and vibrant classrooms,” Emerson Sykes, senior staff attorney with the American Civil Liberties Union’s Speech, Privacy and Technology Project, said in a statement.

A group of 12 students from Virginia, Kentucky, Japan and Italy challenged the department’s removal of library books and changing of curricular material at schools located on military bases and other schools governed by the Department of Defense Education Activity. The students challenged the implementation of three executive orders enacted during the first few weeks of President Donald Trump’s second term that aimed to prohibit agencies and military schools from promoting or advancing theories the administration deems divisive, like racism, sexism and gender ideology.

U.S District Judge Patricia Tolliver Giles granted the student’s requested injunctive relief, ruling them likely to succeed in their argument that book removals and curriculum changes violated their First Amendment right to information. Giles did, however, limit the ruling to only the five schools the plaintiffs’ attend rather than all 161 department schools spread across the globe.

“The censorship taking place in DoDEA schools as a result of these executive orders was astonishing in its scope and scale, and we couldn’t be more pleased that the court has vindicated the First Amendment rights of the students this has impacted,” Sykes said.

Following the orders, Defense Secretary Pete Hegseth initiated the removal of curricular material on gender and sex, including substantial portions of health education courses, including chapters on sexuality, sexually transmitted diseases, the reproductive system, menstruation, fetal development, abuse and puberty. The department later released an internal guidance document that barred the use of official resources to host celebrations or events related to cultural awareness months, including Black History Month, Women’s History Month and Pride Month.

Giles found the students likely to succeed in challenging the book removals under Board of Education v. Pico, which precludes school boards from removing books simply because they dislike the ideas the books contain, and the curriculum changes under Hazelwood School District v. Kuhlmeier, which requires a legitimate pedagogical interest to justify changes.

“Surely, if defendants were concerned with pedagogical interests through book removals, they would be able to tender evidence of the age-level perspective they consider and detailed information on the specific pedagogical standards at issue,” Giles wrote. “In all candor, the court cannot contemplate the pedagogical basis for banning the ‘Gender and Sex’ module from Advanced Placement Psychology; lessons on immigration in elementary school; chapters on ‘Human Reproductive System, Menstrual Cycle, and Fetal Development,’ Abuse and Neglect’ and ‘Adolescence and Puberty’ from health education textbooks; and celebrations related to ‘identity months,’ including Black History and Women’s History Months.”

One of the students showed injury through the denial of their opportunity to present her research project on Maya Angelou after her school canceled Black History Month events. Another student showed injury through her failed attempt to check out “A Handmaid’s Tale” by Margaret Atwood, “The Giver” by Lois Lowry, “Nineteen Eighty-Four” by George Orwell and “Ground Zero” by Alan Gratz.

“L.K. 3’s allegation that a librarian subsequently scolded them for seeking out these books further establishes the injury-in-fact,” Giles wrote. “It is glaring to this court that an adult scolding a middle schooler for her choice of books would be especially ‘chilling’ and injurious to the student’s First Amendment rights.”

The list of 596 books the department removed from circulation at school libraries and considered for removal include “All Bodies are Wonderful” by Beth Cox, “I Am an Antiracist Superhero!” by Jennifer Nicole Bacon and “The New Jim Crow: Mass Incarceration in the Age of Colorblindness” by Michelle Alexander.

“Removing books from school libraries just because this administration doesn’t like the content is censorship, plain and simple,” ACLU of Kentucky Legal Director Corey Shapiro said in a statement. “The materials removed are clearly age-appropriate and are only offensive to those who are afraid of a free-thinking population.”

Giles rebuffed the government’s argument that their actions amount to government speech, which the First Amendment does not regulate.

“Viewing public school libraries as places of academic freedom and intellectual pursuit conflicts with the United States’ notion that school libraries represent government speech,” Giles wrote. “Where other courts have declined to extend the government speech doctrine to the public library context, this court follows suit.”

Giles scolded the government for its lack of transparency through the litigation process as it repeatedly denied the plaintiffs’ access to the list of removed books.

“Despite this lack of transparency, plaintiffs nevertheless collected ample evidence on the book removals and filed their suit with the information available to them within a few months of the initial executive orders,” Giles wrote. “It is impermissible for defendants to take an action implicating constitutional rights, fail to provide information on that action, and then accuse the parties of lacking precise information for standing in their claims challenging that action.”

The ACLU and its Virginia and Kentucky chapters filed the suit on the students’ behalf. The government declined to comment.

“By quarantining library books and whitewashing curricula in its civilian schools, the Department of Defense Education Activity violated students’ First Amendment rights,” Matt Callahan, senior supervising attorney at the ACLU of Virginia, said in a statement. “Today’s ruling affirms that the government can’t scrub references to race and gender from public school libraries and classrooms just because the Trump administration doesn’t like certain viewpoints on those topics.”