Submission Date:
Question:
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/
Answer:
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:
- Directing library staff to keep "controversial" books in the collection, but move them off the shelves and into a store-room;
- Stigmatizing books in the collection by making them available "by request only";
- Telling parents and guardians with concerns that library material will be removed, without referring them to the relevant policy for lodging a complaint or requesting that it be re-evaluated;
- Identifying books that may only be checked out after obtaining parent/guardian consent[8];
- Sharing lists of books checked out by students in excess of what professional ethics, FERPA and CPLR 4509 (regarding privacy) allow;
- Directing school library employees to avoid selecting a certain "type" of material, even if that material is otherwise appropriate per the district's Policy;
- Basing content bans on categories of identity protected by local, state, and federal civil rights laws.
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.
Tag:
Book challenges, Censorship, First Amendment, Intellectual Freedom, Policy, School Board, School Districts, School Libraries, School Policy
