Judge Blocks School Board From Removing Explicit Books, Saying It’s Unconstitutional to Follow ‘Conservative Values’

A school board in Colorado cannot remove sexually explicit, profane, and “transgender” books from school libraries because the school board is conservative, according to a federal judge touted as the first openly lesbian judge west of the Mississippi.

The ACLU’s Colorado chapter filed a suit on behalf of two minors, the NAACP Wyoming State Area Conference, and the Authors Guild, claiming that the school district engaged in viewpoint discrimination when removing the books. The judge granted a preliminary injunction in March, forcing the Elizabeth School District (in Elizabeth, a suburb southeast of Denver) to restore the books.

Judge Charlotte Sweeney second-guessed the school district’s objections to the books’ contents, calling the objections “pretexual” and condemning the removals as partisan because school board members had discussed following their conservative convictions when debating the removal of the books.

“Other than pretextual declarations, at this stage, there simply is no reason to believe that the books were removed because of vulgarity, age-inappropriateness, or for legitimate pedagogical [teaching] concerns; the board’s own emails strongly suggest that the book removal was motivated by the directors’ ‘commitment to conservative values,'” Sweeney wrote. “The court questions what could be more partisan or political than removing books to further the board’s self-described conservative values.”

Julian Ellis, the school district’s attorney, told The Daily Signal that the district had asked Sweeney to hold an evidentiary hearing so she could review the books herself, yet the judge refused. The board had included segments from the books in its filings, aiming to demonstrate the vulgar and inappropriate material, but the judge dismissed those.

Instead, the judge ruled that “the district’s decisive factor in voting to permanently banish the removed books was because the district disagreed with the views expressed in the books and to further their preferred political orthodoxy.”

“The court viewed any decision motivated by ‘conservative values’ as unacceptable and partisan,” Ellis explained. “The problem with the district court’s analysis is those ‘conservative values’ could be assigned to any book removal decision—a book that’s never been checked out, a book with ice cream stains on the cover, or a book that denies the Holocaust” (emphasis original).

“This also begs a question: How could a ‘conservative’ school board ever remove problematic content without the board members’ conservatism disqualifying the decision?” Ellis asked. He condemned the ruling as “unequal treatment because of one’s conservative values.”

Dan Snowberger, the board’s chairman, told The Daily Signal that Sweeney abused her authority.

“The fact that she is failing to acknowledge that the plaintiffs have mischaracterized the content of the books in question—despite our filings, including segments of the books, and refuses to even hold a hearing to allow the parties to present facts—is rather interesting and doesn’t seem impartial,” he said.

Left-leaning activist groups cheered Sweeney’s confirmation to the federal bench in 2022, celebrating her as “the first LGBT woman to serve as a federal district judge west of the Mississippi.”

“We have an unelected judge forcing her particular opinion and values on a community with which she has no connection and no desire to hear from the defendants, judging all submitted evidence as invalid over a few cherry-picked, out-of-context emails regarding a couple of the books in question,” Snowberger said.

Removed books include “The Bluest Eye” by Toni Morrison (which critics say contains sexually explicit content and depicts child sexual abuse) and “Thirteen Reasons Why” by Jay Asher (which critics say glorifies suicide), among others.

The Lawsuit

The case traces back to 2023, when the school board’s director, Mike Callahan, learned that his 11-year-old daughter had checked out a book with sexually explicit content. The board established a Curriculum Review Committee to review and weed out inappropriate books. The committee listed approximately 100 books containing sensitive topics and recommended 19 books for suspension pending review. The board solicited feedback from the community about the books and then voted to remove them.

The board voted to suspend or remove books because they had sexually explicit, violent, or age-inappropriate content; because parents, voters, and taxpayers expressed opposition to the books being in school libraries; and because the board members did not consider the books’ educational value enough to outweigh other concerns.

The ACLU of Colorado sued in December, representing a high school junior at Elizabeth High School, a preschooler at Running Creek Elementary, the NAACP Wyoming State Area Conference, and the Authors Guild. The ACLU claimed that the Colorado NAACP chapter includes parents of kids in the district’s public schools, but neither the ACLU nor the NAACP identified the parents. The Authors Guild includes authors of some of the restricted books.

The ACLU claims that the school board violated the First Amendment rights of the high school junior and the preschooler—neither of whom has yet to attempt to check out the books—by removing the titles. The ACLU also claims it violated the authors’ First Amendment rights by interfering with their ability to communicate their ideas to students.

On Jan. 27, the school district decided to make the 19 disputed books available to the plaintiffs in the lawsuit. Even so, Sweeney ordered the district to restore the books on March 19. The district appealed the case, and while the U.S. Court of Appeals for the 10th Circuit will hear the case, it rejected the district’s appeal for a stay to block Sweeney’s order.

Sweeney’s Order

The school district argued that it is a matter of government speech which books the district allows in school libraries, but Sweeney rejected this argument. Sweeney cites the 1982 Supreme Court case Board of Education, Island Trees Union Free School District v. Pico, a complicated case involving a school district’s decision to remove books from a school library.

The Supreme Court did not issue a majority opinion in Pico, only a plurality holding that school boards “may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.'”

Though a Supreme Court plurality opinion is not considered binding on other courts, Sweeney nonetheless used it as a “starting point.”

Sweeney then quoted school board members’ emails to suggest that the book removals were political.

“While I completely agree that we must keep politics out of the classroom and shield our students from partisan influences, it’s equally important to remember that our commitment to conservative values was a key aspect of our campaign,” one school board member wrote.

The judge never even considered whether the “conservative values” involved protecting children’s innocence or prioritizing reading, writing, and arithmetic over sexual lessons at young ages.

Ellis, the school district’s attorney, cited Chief Justice William Rehnquist’s dissent from Justice William Brennan’s opinion in Pico.

“Justice Brennan would hold that the First Amendment gives high school and junior high school students a ‘right to receive ideas’ in the school,” Rehnquist noted. “This right is a curious entitlement. It exists only in the library of the school, and only if the idea previously has been acquired by the school in book form. It provides no protection against a school board’s decision not to acquire a particular book.”

The Elizabeth School District also argues that the Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier allows them to remove books. In Hazelwood, the court allowed school districts to change the curriculum “so long as their actions are reasonably related to legitimate pedagogical [teaching] concerns.”

Yet Sweeney dismissed this argument because Hazelwood involved a high school newspaper published by students in a journalism class. She ruled that which books a library contains is not as directly tied to the school curriculum.

The School Board’s Response

In appealing the case, the school district noted that all school board members declared under penalty of perjury, “My objections are based on the age-inappropriate content that appears in these books and they have nothing to do with the ‘viewpoints,’ ‘ideas,’ or ‘worldviews’ expressed by the authors, or the fact that some of the books ‘discussed LGBTQ+ and race-related topics.’ I would oppose the inclusion of books with this type of content in our school libraries even if those books supported conservative viewpoints, ideas, or worldviews, and even if they discussed topics other than LGBTQ or race-related issues.”

The district also argued that Sweeney’s “claim that the First Amendment forbids ‘viewpoint’ discrimination and ‘content’ discrimination in library-weeding decisions is untenable and unsupported by any decision of the Supreme Court.”

“Libraries are supposed to engage in ‘content’ and ‘viewpoint’ discrimination when culling books from their collections, and the district court’s no-viewpoint-discrimination rule would prohibit government-owned libraries from removing books that deny the Holocaust, promote crackpot conspiracy theories, or espouse obsolete and debunked scientific theories such as spontaneous generation or scientific racism,” the district argued.

Courts need to clarify this issue, and the appeals court should strike down Sweeney’s perplexing ruling. Sexually explicit materials have no place in school libraries, and courts need to make it clear that removing them does not violate the Constitution.

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