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Policies to Fight Back
In light of this ongoing controversy, strong policies that embrace a commitment to diverse curricular and library content and establish a rigorous reconsideration process are critically important.
Carmel Central School District Board Policies (“Board Policies”) should be revised to ensure that politically-motivated requests to ban materials are not used as an ongoing cudgel against the District.
Specifically, we recommend that Board Policies include:
- A provision that no material will be removed from either the curriculum or library until the Board makes a final decision;
A clear timeline for reviewing challenges to materials;
Protection for the professional judgment of school staff; and
Greater transparency in the reconsideration process.
Public schools should be places where ideas are openly disseminated, discussed, and debated.
Our democracy depends on students becoming fully informed people able to make up their own minds, and to do so they need a wealth of information at their fingertips.
The NYCLU developed model policies to assist school boards and district personnel in establishing a sound, workable, and constitutionally justified policy for selecting and considering challenges to curricula.
Read NYCLU Model Policy for the Reconsideration of Curricular Instructional, or Library Materials
Debra Heitman-Cayea
President, Board of Education
Carmel Central School District
81 South Street P.O. Box 296
Patterson, NY 12563
Dear Ms. Heitman-Cayea,
We write on behalf of the New York Civil Liberties Union (“NYCLU”) to express our concern that the Carmel Central School District (“Carmel” or the “District”) has inadequate library policies that fail to protect the free speech rights of students and foster a safe and supportive learning environment.
The recent challenge to Gender Queer, Maia Kobabe’s memoir of nonbinary identity, has brought this issue to the fore. After an individual filed a complaint, the Superintendent recommended that the book be retained in the library’s collection.1 On April 5, 2022, the Board of Education upheld the Superintendent’s determination by a vote of 5-2.2 While we applaud the District’s decision to uphold the Superintendent’s recommendation,3 the attempt to remove the book has continued to reverberate. Over the course of the last year, a small but vocal group of conservative activists have regularly attended Board meetings, repeatedly challenging the Board’s decision to retain the book in circulation,4 while other conservative activists have attacked school staff online.5
In light of this ongoing controversy, strong policies that embrace a commitment to diverse curricular and library content and establish a rigorous reconsideration process are critically important. Carmel Central School District Board Policies (“Board Policies”) should be revised to ensure that politically-motivated requests to ban materials are not used as an ongoing cudgel against the District. Specifically, we recommend that Board Policies include:
- a provision that no material will be removed from either the curriculum or library until the Board makes a final decision;
- a clear timeline for reviewing challenges to materials;
- protection for the professional judgment of school staff; and
- greater transparency in the reconsideration process.
We have enclosed a model policy for your consideration.
Strong Policies are Essential to Protect Students’ Rights of Free Speech and Expression and Foster Safe and Supportive Learning Environments
The Supreme Court has consistently held that the students and teachers have a First Amendment right to freedom of speech and expression in school.6 As such, school authorities may not remove books solely because they disagree with the views expressed within them. In Board of Education, Island Trees Union Free School District No. 26 v. Pico,7 the Supreme Court concluded that library book removals violate the Constitution if motivated by an intent to deny students access to particular ideas.8 In the decades since, courts have consistently held that efforts to censor diverse authors’ writings on race, sexuality, and gender represented discrimination on the basis of viewpoint – the “official suppression of ideas” forbidden by the First Amendment.9 School districts violated the Constitution where they knowingly used software that blocked websites supporting of LGBTQIA+ people10 and removed a novel depicting a romance between two teenage girls.11 Courts have also found that a city resolution enacted specifically for the purpose of removing two children’s books on LGBTQIA+ families from the public library constituted viewpoint discrimination.12 Recently, a Texas court ordered that removed books be returned to shelves within 24 hours, reasoning that the library board likely removed “CRT [Critical Race Theory] and LGBTQ book[s],” because they disagreed with the views of the authors.13
Schools’ obligation to protect students’ right of free speech and expression intersects with their duty to cultivate a safe and supportive learning environment under federal and state law.14 Challenges to books about the experiences of LGBTQIA+ young people and students of color can send the message that these students are not welcome in the school community and can create a hostile environment for students. The Department of Education’s Office for Civil Rights (“OCR”) recently investigated book removals in Forsyth County Schools in Georgia for potential violations of Title IX of the Education Amendments of 1972 and Title VI of the Civil Rights Act of 1964. OCR identified concerns that comments at board meetings gave the impression that books were removed because of the identity of their authors and characters, creating a hostile environment for students.15 OCR also expressed concern that the district’s responsive steps, including posting a statement that it provides resources “that reflect all students within each school community,” were insufficient to ameliorate the situation.16 The resulting settlement required the district to issue a statement explaining its book removal process, offer supportive measures to students who were affected, and undertake a school climate survey.17 OCR recently announced the appointment of a coordinator “to address the growing threat that book bans pose for the civil rights of students.”18 OCR’s actions put school districts on notice that they will be held accountable if they fail to address the hostile environment created by challenges to diverse literature.
Courts consider school districts’ policies and procedures for considering challenges to library materials and treat a failure to comply with those policies as evidence that the board removed a book because it disagreed with the viewpoint of the author.19 Courts have also been persuaded by evidence that officials overruled decisions made by the individuals normally responsible for decision-making.20 Indeed, in Island Trees the school board disregarded the district’s policy for considering challenges to instructional materials and, over the objections of the superintendent, formed an ad hoc committee.21 When the committee recommended retaining the challenged books, the board overruled it.22 While Island Trees is a particularly egregious case, it illustrates the importance of clear and consistent policies to ensure that challenges are fairly adjudicated.
Carmel’s Current Policies Fail to Protect the Integrity of the Reconsideration Process
The current Board Policies include both a library material selections policy and a policy establishing a curricular or instructional materials complaint process. The former, Board Policy 4513, provides that “[t]he Superintendent shall be responsible for the selection of resource materials,” including determining “factual accuracy, readability, authoritativeness, integrity and quality of format.”23 While the other policy, Board Policy 4524, states that the library media specialist “will work cooperatively with the staff members to interpret and guide the application of the policy in making day-to-day selections . . . the Superintendent has the authority to veto any selection he/she deems inappropriate.”24 The Board retains “final responsibility to make decisions concerning selections.”25
Board Policy 1420-R26 explains the procedure for addressing complaints about any textbook, library book, or other instructional material. If an informal meeting with the complainant is not successful in resolving a complainant’s concerns, they may submit a written complaint to the Superintendent, who in turn designates an Instructional Review Committee (“the Committee”). Committee members include an administrator, a librarian, a teacher, and a parent of a student enrolled in the district. The Committee is charged with “read[ing] and examin[ing] the challenged materials, consider[ing] the specific objections to the material voiced by the complainant, weigh[ing] the values and faults of the material as a whole, . . . solicit[ing] advice or opinion from other district faculty and staff, [and] issu[ing] a report to the Superintendent containing its recommendations.”27 The Superintendent reviews the report and makes a final decision on whether to retain or remove the challenged material, a decision which is appealable to the Board of Education.
These policies are insufficient to protect the integrity of the review process. First, Board Policy 1420-R does not explicitly provide that any challenged material will remain in the curriculum or in circulation in the library until the Board makes a final decision. This provision is critical, as removing a material as soon as it is challenged effectively gives the challenger a “heckler’s veto” over students’ rights to access material.28 The District’s policy also does not give a timeline for the review process. Swift resolution of complaints is important to create confidence in the process and ensure that staff have clarity on whether students can access the challenged materials. Committee membership is limited to an administrator, a librarian, a teacher, and a parent. No students are included in the committee, and there is no established process for how the parent member is selected. Committee members are not given any training on the First Amendment or principles of academic freedom.29 Lastly, the lack of transparency or opportunities for public comment during the reconsideration process risks undermining public trust. This is particularly true in cases where the Superintendent elects to remove a challenged material. The policy does not explicitly allow another member of the school community to appeal this decision, effectively insulating the Superintendent’s decision from review.
Second, the Board Policies neither empower the librarian to select materials nor provide the necessary protection so that they can confidently provide access to information on controversial topics. Superintendents are described as assuming responsibility for library selection and are given power to veto librarians’ choices without explanation, undermining their authority to curate library materials. In addition to their unique training and expertise, librarians have ethical obligations to “uphold the principles of intellectual freedom.”30 The District’s policy should explicitly acknowledge this expertise and identify librarians as the key decisionmaker when it comes to selecting library materials, affording deference to their selections. Policies in other districts also recognize librarians’ professional authority in the review process, providing that “[a] decision to sustain a challenge shall not be interpreted as a judgment of irresponsibility on the part of the professionals involved in the original selection or use of the material.”31 This language ensures that librarians do not face adverse consequences because of their efforts to include diverse voices in the library collection.
Activists’ explicit targeting of the Carmel High School librarian underscores the need for specific policies that honor the professional judgment of school personnel. On October 3, 2022, an article on the Parents Defending Education web site accused the librarian of “using her position to promote political positions,” citing a photo of a library display containing books by LGBTQIA+ and Black authors.32 Another conservative activist has written multiple Facebook posts attacking the librarian by name, sharing her photo and contact information, and accusing her of using “tax payer monies to purchase PORN.”33 School librarians have a professional responsibility to ensure that students have access to materials representing a wide range of viewpoints and experiences: they should not be personally targeted when they strive to do so.34
Carmel Should Adopt Stronger Policies to Protect Staff and Students
Carmel should adopt stronger library selection and review policies to ensure that future challenges to materials are handled efficiently and transparently, while protecting the professional discretion of school staff and students’ rights to access important materials. Enclosed with this letter is a copy of a model policy developed by the NYCLU to provide school districts with a roadmap for selecting library materials and considering challenges. The model policy uses the template policies developed by the New York State School Boards Association as a starting point, incorporating guidelines developed by the American Library Association and strong provisions from other district policies. Four features of the policy are particularly relevant to the situation in Carmel:
- It provides that no material will be removed from either the curriculum or from the library until the Board makes a final decision.
- It provides a timeline for reviewing challenges to materials.
- It honors the professional judgment of school personnel.
- It balances participation and transparency with the safety of committee participants.
Beyond strengthening Board Policies, Carmel should renew its commitment to providing students with inclusive curricular and library materials that reflect the history and experiences of all members of the school community. Carmel is a diverse school district: 33% of students are Latinx, 3% are Black, 2% are Asian-American, and 3% are multiracial.35 All of these communities should be represented in the school curriculum. One of the most troubling consequences of book challenges is that educators, fearing controversy, may avoid assigning or selecting books on marginalized communities. But ensuring access to inclusive materials is essential to foster a more respectful school climate and promote student learning,36 a fact recognized by the Board of Regents when it announced its commitment to supporting culturally responsive-sustaining education statewide.37 The disclosure that three Carmel High School students recently created TikTok videos threatening Black and Latinx students demonstrates the urgent need for frank community conversations about racism and bigotry.38 Now is the time to redouble the District’s efforts to ensure that all students feel represented at school in general and in the library in particular. In the words of Governor Hochul, “[f]or many kids, libraries are a place of refuge and information where they can be welcomed and affirmed for who they are. Everyone – and particularly our state’s young people,” she continued, “deserves to feel welcome at the library.”39
We would welcome the opportunity to further discuss our model policy with you. We can be contacted at 212-607-3300 and ehulse@nyclu.org.
Sincerely,
Emma Curran Donnelly Hulse Brandon J. Holmes
Skadden Fellow Interim Field Co-Director
Equity Policies Toolkit for School Boards
A Toolbox Resource from HEAL Together
MARCH 2023
Acknowledgements
This toolkit is the product of a collaborative effort led by HEAL Together staff at Race Forward, with special acknowledgement to the many partners who provided feedback along the way and consultants who supported research and writing:
JOSHUA ACEVEDO, Local Progress
ALEX AMES, Georgia Youth Justice Coalition
JESSICA RODRIGUEZ BOUDREAU, Education Policy Consultant
MARLI ENGLISH, Georgia Youth Justice Coalition
MARY GONZÁLEZ, Education Consultant
MEGAN HESTER, NYU Metro Center
SHERRI JONES, School Board Member, Florence Unified School District
FLOR KHAN, NYU Metro Center
JENNIFER KOTTING, Communications Strategist, Partnership for the Future of Learning
SHWETA MOORTHY, Race Forward
BRIANA MULLEN, Education Justice Academy
SARAH ROBINSON, School Board Member, Concord School District
CARRIE SAMPSON, Mary Lou Fulton Teachers College, Arizona State University
ARI SCHWARTZ, Local Progress
MELISSA TORRES-MONTOYA, Policy Consultant
Introductions
When asked in recent polling what is the purpose of public education, Americans said that it exists to impart the skills needed to pursue good careers, ensure that children in low-income families get the same education as children in wealthy families, and to help us learn from historical mistakes so that we may navigate challenges and create a better future.
At HEAL Together, we think that public education is all that and more. We are united in our belief that an honest, accurate, and fully funded public education is fundamental to building a just, multiracial, democracy — a society in which everyone can thrive.
Public education can prepare students to become fully engaged citizens by creating spaces where students of all backgrounds learn how to work with one another toward common goals. Our public schools can also create connected communities that are united in their purpose to provide the next generation with the knowledge and skills to create a better world for us all.
Because our public schools are the embodiment of hope across generations and often serve as the heart of our communities, the stakes are high for the people formally entrusted with their care — not least of which include school board members.
School board members carry a lot of responsibility, and their decisions have long-lasting consequences. They decide on the policies, budgets, and curriculum that either make our public schools the best they can be or support institutional power that limits and often criminalizes young people. Many school board members express an interest in running for elected office because they are driven to make changes to their local school system to improve not just academic outcomes, but the well-being of the students and families they serve. Their work is challenging and requires a commitment to equity to meet the myriad needs of students now and for years to come.
Yet even the most progressive, equity-focused school boards cannot do this work alone. It takes a village to raise our children, and it takes a village to make sure that our public schools center belonging and equity to create opportunity for all.
HEAL Together is working closely with parents, educators, youth, and school board members to ensure that our public schools help our communities fulfill their dreams of a better future. We know that the fight to strengthen our public schools by making them more equitable and inclusive is part of a larger fight to reclaim all our public goods and spaces, which have been increasingly under threat of privatization and budget cuts. And only by working together at local and national levels can we fend off the widespread, politicized focus on public education that is targeting equity and anti-racism in our schools.
We created this toolkit in collaboration with our many partners so that equity-building efforts in our local schools are backed by policy and implementation. The development of equity-based policy is more than checking a box — it’s thinking very concretely about the youth a school district serves and asking, “Why and how will this policy advance our accountability to youth from the most historically excluded identities in our school district community?”
Answering the question above with intention involves including youth and community, particularly those from historically excluded groups, throughout the policymaking process so that the resulting policies drive the district’s actual practices. Our public education system works best when it is accessible and accountable to the school community,
Read HEAL Together's Equity Policies Toolkit for School Boards here: