In recent months, there has been an increase in the removal and public disapproval of educational materials used in schools, including both school library books and instructional materials/curriculum. On May 30, the California Department of Education (CDE) released “Guidance on Removal of Instruction or Instructional Materials,” outlining rights held by students and the responsibilities of board members when considering and selecting educational materials for schools. Following CDE’s guidance, Gov. Gavin Newsom, Attorney General Bonta and State Superintendent of Public Instruction Tony Thurmond issued a joint letter on June 1, describing the importance of protecting students’ access to representative and unbiased educational materials and giving a brief overview of Supreme Court precedent on the topic of removal of educational materials from schools. While these resources are a helpful starting point, both documents are silent about the important role that school boards play in both protecting the rights of students and meeting the needs of their communities through the approval of educational materials for schools.

This legal explainer examines case law and California laws that are applicable when school boards and other school leaders make decisions related to instructional materials in schools. While the case law described can be helpful to understand the broad discussion among courts on the topic of educational materials in schools, the California statutes described are the more practical and applicable requirements for local boards to consider.

Two Supreme Court cases offer some insight into the legal parameters regarding the adoption and removal of educational materials in schools. Board of Education Island Trees Union Free School District No. 26 v. Pico (457 U.S. 853, (1982)) relates to the removal of school library books and Hazelwood School District v. Kuhlmeier (484 U.S. 260 (1988)) relates to schools’ authority over school curriculum. Although the interaction of these two cases is not straightforward or clear, each case and the decisions that rely on them provide some direction for school boards when addressing matters of educational material selection and removal.

In Pico, the Court points out that it has “long recognized that local school boards have broad discretion in the management of school affairs” and determination of school-related issues should be left to state and local authorities, rather than the courts. (Pico at 863.) Similarly, in Hazelwood, the Court acknowledges that “educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school” is greater than it would otherwise be over student speech that is not clearly affiliated with the school. (Hazelwood at 271.) This broad discretion afforded to schools allows them to fully exercise their role of “inculcating community values” to students (Pico at 869), “in the preparation of individuals for participation as citizens,” and in “inculcating fundamental values necessary to the maintenance of a democratic political system.” (Ambach v. Norwick, 441 U.S. 68, 76–77, (1979).)

After acknowledging the broad discretion of schools in Pico, the Court conditioned that discretion by emphasizing the importance of the intention or motive behind a removal. Removals with a “partisan or political” basis are unconstitutional because it is inappropriate for a board to act with the intention of suppressing ideas. (Pico at 870-871.) According to the Court, if removal of a school library book is due to its pervasive vulgarity or educational suitability, then the removal would be constitutional. (Pico at 871.)

Unlike Pico, Hazelwood not only acknowledges the discretion of schools in instructional matters but expands it. Here, the Court builds on precedent that the rights of students “‘are not automatically coextensive with the rights of adults in other settings,’ and must be ‘applied in light of the special characteristics of the school environment’” (Hazelwood at 266, quoting Bethel School District No. 403 v. Fraser, 478 U.S. 675, 682, (1986) Tinker at 506), and holds that curriculum can be removed from a school if the removal is reasonably related to a legitimate pedagogical concern. Notably, there’s some consistency between the reasoning in Pico and the decision reached in Hazelwood as the Pico court stated six years earlier that “petitioners might well defend their claim of absolute discretion in matters of curriculum by reliance upon their duty to inculcate community value.” (Pico at 869.)

Lower courts’ application of and reliance on both Pico and Hazelwood has been wide ranging and inconsistent in various cases related to instructional materials. For example, the First and Eleventh Circuit Courts of Appeal have followed Hazelwood and allowed broad discretion to school boards to remove instructional materials. (Griswold v. Driscoll, 616 F.3d 53 (1st Cir. 2010); Virgil v. Sch. Bd. of Columbia Cnty., Fla., 862 F.2d 1517 (11th Cir. 1989).) However, other courts such as the Eighth and Ninth Circuit Court of Appeals and the California Fifth District Court of Appeal have taken a different approach and relied on the principles in both Pico and Hazelwood when considering questions related to instructional materials. For example, the Eighth Circuit’s holding in Pratt v. Independent School District No. 831, Forest Lake, Minnesota (670 F.2d 771, 773 (1982)) that “a school board’s removal of material from the classroom curriculum solely on the basis of its message … [is] unconstitutional” was positively endorsed by the Ninth Circuit. (Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1028 (9th Cir. 1998).) Similarly, the Fifth District Court of Appeal also considered both cases in McCarthy v. Fletcher (207 Cal. App. 3d 130 (1989)) when it stated, “true motives” must be considered when reviewing an instructional material removal. (Id at 147.)

This lack of clarity nationwide on how and when to apply Pico and Hazelwood, and if the two cases operate as a pair or individually, makes it difficult to say with certainty how cases related to instructional materials will be considered and decided.

If the motive of school board members and administration can be considered when evaluating a board’s decision to remove instructional materials, there is some case law that outlines the factors that support a removal or prove an improper intent. For example, the Fifth District Court of Appeal endorsed the idea that a legitimate pedagogical concern may include a true issue of educational suitability. (Fletcher at 147.) Similarly, the Eleventh Circuit found the reliance on the sexual nature and excessive vulgarity of materials to be sufficient to show a legitimate pedagogical concern. (Virgil at 1522-23.) Pico also points out that decisions made by boards contrary to recommendations made after review processes may reflect improper motives.

In addition, the religious content of educational materials cannot be the basis for a decision related to removal. More specifically, “a school board does not have the power to advance or inhibit a particular religious orthodoxy as a ’community value.’” (Fletcher at 144.) With regards to religious materials, the Court has noted that age is also a factor for consideration due to the “subtle coercive pressures in the elementary and secondary public schools.” (Lee v. Weisman, 505 U.S. 577, 592 (1992).)

The statutes and curriculum requirements in California offer more concrete guidance on what must be included in curriculum and therefore what arguably cannot be a basis for disapproval or removal. The selection process for instructional materials involves multiple deliberative bodies, including the State Board of Education (SBE) and the Instructional Quality Commission. These bodies create and adopt Content Standards, Curriculum Frameworks and evaluation criteria that outline what must be taught in classrooms and included in instructional materials. These standards and criteria are used either by SBE or a local board in the “education content review” of selected instructional materials.

Selected instructional materials are also reviewed for “social content” compliance, which covers the requirements passed by the Legislature and included in the Education Code. Various Education Code sections outline the topics and groups that must be included in California’s instructional materials. Specifically, Education Code sections 51501, 60040-60045 and 60048 include information and requirements for how the topics such as male and female roles, ethnic and cultural groups, and sexual orientation and gender identity should be presented to students. In addition, the FAIR Act, passed in 2011, added content requirements to the Education Code by expanding existing code sections to be more inclusive of different racial, ethnic and cultural groups. A removal of curriculum based on one of these items may provide a basis for improper motive, subsequent action and the possible filing of a complaint. A new bill, Assembly Bill 1078, proposes a series of significant changes to various Education Code provisions related to instructional materials and, if passed, will expand the basis for an improper action.

Using these guidelines and reviews, instructional materials are selected by SBE for grades K-8, and local school boards select instructional materials for grades 9-12. Nonetheless, local school boards may select instructional materials for grades K-8 if they comply with the process outlined in the Education Code, which includes the education and social content reviews as described in this article.

CSBA offers a series of sample board policies, administrative regulations and exhibits that relate to development, selection and complaints concerning instructional materials. For example, BP/AR 6141 describes curriculum development and evaluation, BP/AR 6161.1 details the selection and evaluation of instructional materials and BP/AR 1312.2 gives guidance on the factors that boards can use when deliberating on challenged educational material. BP/AR 1312.2 is particularly helpful, describing considerations such as the district’s philosophy, the teacher’s objective in using the material, and community standards that emphasize the local components of educational materials.

CSBA’s sample board policies illustrate that, ultimately, what is included in instructional materials is a local decision. So long as the instructional materials are compliant with the law and decisions are made in accordance with a process guided by the requirements of the Education Code and SBE’s guidelines, local boards can select the instructional materials that serve their community’s interest.