Submission Date:
Question:
A recent article appeared in a local newspaper that was describing the local efforts of a group called Moms for Liberty to have certain books removed from school libraries because the group consider the titles to be inappropriate for school age children. However, the language used and quoted in the article, including “#Porninschools Exposed" and that they found over 80 titles that should be given an "R" rating seems as if it could be construed as an accusation against school libraries that they are distributing materials to minors that are prohibited by law. The article also quoted the group as intending to get people "outraged" by posting excerpts from books they consider objectionable. I would like to know if the school librarians facing these kinds of accusations have any recourse to bring action against the organization or individuals within the organization making these kinds of possibly slanderous and libelous accusations.
Answer:
I am writing this on May 23, 2023.
It has been well over a year since I started working with school district libraries and regional BOCES on the ethics, law, and policy considerations of school library collection concerns.[1]
In that time, I have worked with many on the front lines of this issue, and heard their stories: librarians worried their school's policies aren't up to the challenge, librarians enduring insults and threats, and librarians developing contingency plans for the day when the anger is directed at their school library.
The sessions I have worked on have focused on different ways to be prepared:
- Be certain of your ethics
- Know the laws that pertain to your library
- Know your district's procedures
- If necessary, update your district's policies
- Build a team that is ready to respond
- Have a plan for that team so they work seamlessly
- Memorize an "elevator speech" on intellectual freedom
- Keep calm.
The member's question addresses a factor that cuts across every facet of preparation: be ready to play offense.
To reiterate, the member asks: [Do] school librarians facing these kinds of accusations have any recourse to bring action against the organization or individuals within the organization making these kinds of possibly slanderous and libelous accusations[?]
The answer is: YES.
Some of the more possible legal tactics are listed below, along with tips on when a librarian should reach out to their own personal lawyer.
A few disclaimers, and tips for being ready to employ these possible tactics, come next.
Possible Legal Tactics
If a school librarian is wrongly accused of a crime, or of incompetence at their job, that can be grounds for a claim of defamation (slander or libel, depending on how expressed).
If a school librarian is subjected to acts which alarm or seriously annoy them, and serve no legitimate purpose, there can be grounds for a harassment claim and protective order.
If social media is used to attack a librarian's character, or to abuse or stalk them, there can be grounds for account suspension and other remedies.
If a school librarian is subjected to abusive or negative comments regarding gender, sexual orientation, race, or religion that create a hostile environment, and after a complaint, nothing is done to stop the behavior, it can be a violation of the New York Human Rights law and federal civil rights laws.
If a school librarian is subjected to a coordinated attack by a registered charitable organization or PAC in violation of formation documents or state/federal law, the organization's actions can be reported to the Attorney General or other regulatory authority.[2]
If a school librarians' image is used to raise funds and/or to agitate people into donating money or for other commercial purposes, there can be grounds for a case based on misuse of the librarian's right to personality.
If a school librarian is subject to abuse or conduct that leads to stress-induced workplace injury, they can bring a claim for worker's compensation.
If a school librarian raises concerns regarding harassment, abuse and safety, and is subject to retaliation for raising such concerns, such retaliation could be the basis of a claim based on violation of state and/or federal labor law.
If a school librarian's employment is threatened or ended due to wrongful accusations, the wrongful accusations can be addressed via a combination of legal claims.[3]
For every possible "cause of action" (the items in bold) listed above, there is a precise formula, deadline, and basis for damages that will require careful analysis of the facts. For this reason, obtaining timely and competent legal advice is essential.
A Disclaimer
Every one of the above-listed "causes of action"--and more--can be used to fight abuse and harassment based on performance of a school librarian's work...if the right elements are present. That said, make no mistake:
- A person or group who thinks a particular book shouldn't be in a library has a right to state their opinion;
- A person or group who thinks a particular book is harmful may have a right to use policy and procedure to challenge that book within a library's catalog;
- A person or group who has a bona fide belief they have witnessed criminal behavior has a right to report it.
This is the United States of America, and we are in the mighty State of New York. If a person wants to say they don't like a book--and even if they want to say they don't like that pesky librarian--they get to say that.[4]
That said, a person who uses their voice and power to defame, harass, threaten, and injure[5] a school librarian may have to face the consequences.
Being Ready to Bring Consequences
To assess if advocacy or self-expression by a person or group protesting books in the library crosses a line, a school librarian should seek the opinion of an attorney.[6]
This attorney does not need to be an expert in First Amendment jurisprudence, Labor Law, or Education Law...but should have some experience in handling significant matters related to the tactic being explored (or at least a willingness to roll up their sleeves and do serious research[7]), and be ready to assess the full facts of what the librarian is dealing with.
What does this assessment look like? School librarians, once you retain an attorney through a written retainer agreement,[8] be ready for that attorney to have to spend up to ten or more hours gathering information, researching, and developing an array of options.[9] The lawyer should review the policies and procedures that create the playing field for the drama unfolding before deciding on a course of action[10] (assessing the viability of legal claims should not be a hasty exercise). And when the initial assessment is complete, expect a written opinion setting out their options, so you can make an informed decision before the attorney takes any action.[11]
In addition to exploring claims a school librarian can bring, some of the above-listed items are relief the employer may be obligated to bring...meaning the librarian's lawyer should be ready to articulate the strong "expectation"[12] that the school or district will go to bat to protect the rights and safety of their employee. A district or school does not need to stand idly by when its librarian is under attack--and in many cases, the options listed above are available to the school, as well as the librarian.
Whenever possible, the fight for intellectual freedom is not a battle to wage alone!
Which brings us back to our other tactics:
- Be certain of your ethics
- Know the laws that pertain to your library
- Know your district's procedures
- If necessary, update your district's policies
- Build a team that is ready to respond
- Have a plan for that team so they work seamlessly
- Memorize an "elevator speech" on intellectual freedom
- Keep calm.
All of these can help if the legal tactics above need to be utilized. All of these can help if you need to decide that the best defense might be an offense.
So: [Do] school librarians facing these kinds of accusations have any recourse...?
You bet they do.
Thank you for an excellent question.
[1] Presentations include: Wayne-Finger Lakes BOCES on March 2, 2022; Southern Adirondack Library System on March 11, 2022; Monroe County Library System on March 21, 2022. Many thanks to the school district library system directors who invited me into their space for these events, and many thanks to the school librarians for their courage and commitment during difficult times.
[2] Such as the Internal Revenue Service.
[3] "Combination of claims" is my catch-all for a contract violation, policy violation, union grievance, random legal violation, etc.
[4] The First Amendment: "Making no one happy since 1791." Ah, democracy.
[5] "Injure" in the legal sense, meaning a "tort," not just a physical injury.
[6] By this, I don't mean the district's attorney, or even the local BOCES attorney (although they should be helpful, too). By this, I mean an attorney who is 100% only concerned with the rights and interests of that particular librarian. To find that attorney, contact your area's local bar association, or ask for a referral from a trusted attorney who practices in another area of law (attorneys like to refer people to other attorneys who can provide good assistance). If you are worried about costs, see footnote #10.
[7] Did you find a newbie? My advice is to never write off any attorney willing to admit they don't have extensive experience IF they are willing to connect with a mentor and/or do the research to develop experience in a particular area or law. Just make sure they don't charge you too much for learning on the job!
[8] Yes: a written retainer agreement. Not informal advice from your cousin the lawyer, or a third-year law student, but someone with malpractice insurance who gives you a WRITTEN opinion you can rely on.
[9] For example, the attorney for a school librarian being bullied on social media should assess: 1) is this something the school district's attorney should handle? 2) Is there a union that should be fighting for the librarian? 3) Is there relevant school policy that should be enforced? 4) Are the issues causing or contributing to harassment, abuse, threats, or a medical condition? 5) Is social media a factor? --Just to name a few.
[10] This part sounds boring, but it is vital. For an example of how such tactical considerations coalesce, see https://pen.org/wp-content/uploads/2023/05/1-Complaint.pdf.
[11] As I have written before, if you are a librarian concerned that a right to read issue could impact their job, and those hours of attorney work are unaffordable, contact the Merritt Fund.
[12] Did I say "expectation?" I mean "clearly written demand."
Tag:
Book challenges, School Libraries, Policy, Intellectual Freedom, Public Libraries, Defamation
