NCAC Letter Re HB516 - McAuliffe

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March 8, 2016
Governor Terry McAuliffe
Common Ground for Virginia
P.O. Box 1475
Richmond, VA 23218
Via fax: (804) 371-6351
Dear Governor McAuliffe,

As organizations concerned with the freedom to read, the integrity of the public
education system, and the application of First Amendment law and principles in public
institutions, we strongly urge you to veto HB516, a bill requiring public schools to
notify parents of any sexually explicit content in instructional materials and to
provide nonexplicit alternatives to any student whose parent so requests. We believe
that such legislation would prejudice educationally valuable content, undermine the
quality of public education in Virginia, and contravene important First Amendment
principles.
Singling out material with a certain type of content inevitably creates a biased
perspective and casts a negative light on the material regardless of its educational
value. The bill is silent on what content would be labelled sexually explicit, or how
that term would be defined. On its face, however, the term is vague and could apply to
a great deal of classic and contemporary literature, including Anne Franks The Diary
of a Young Girl, Geoffrey Chaucers The Canterbury Tales, Theodore Dreisers An
American Tragedy, Kurt Vonneguts Slaughterhouse-Five, Gustave Flauberts
Madame Bovary, Sherman Alexies The Absolutely True Story of a Part-Time Indian,
the Bible, and most works by William Shakespeare. 1
Many if not most parents want their children to receive a comprehensive education
that includes books like these, and they rely on teachers to select materials that best
promote educational goals and prepare students for college and life beyond. Teachers
are in turn guided by the Standards of Learning for Virginia Public
As a content-based regulation of speech, the vagueness of the bill raises special First
Amendment concerns because of its obvious chilling effect on free speech. Reno v. ACLU, 521
U.S. 844, 871-72 (1997).
1
Schools, which facilitates teacher planning by identifying the key concepts, knowledge, and skills
that should be the focus of instruction. 2 By inviting parents to opt out of assignments selected for
their educational value and requiring teachers to find alternatives that accommodate the views and
preferences of individual parents, HB516 undercuts its own educational policy and standards for
student achievement and proficiency.
HB516 will inevitably impact the education of all students: . . . due to the practical burdens, schools
would be unlikely to choose to teach alternate works separately to students objecting to a portion of
the curriculum. Instead, they would probably simply remove books that they believed to be
educationally valuable, but that might be controversial, or offensive to some. Monteiro v. Tempe
Union School District, 158 F.3d 1022, 1028 n.7 (9th Cir. 1998).
Every community is home to a diversity of opinions on moral and religious questions. HB516 would
privilege the beliefs of those parents who object to books with sexual content. It is precisely this form
of viewpoint discrimination by government that our constitutional system is designed to prevent.
Moreover, the content-based approach in HB516 is unnecessary: parents who wish to shield their
children from certain content can always review the curriculum themselves and request an alternative
assignment on an individual basis.
Flagging one type of potentially controversial content invites demands to identify other types of
content which some find offensive, including LGBT-themed materials, racial references, religious
content, and so on. There are few instructional materials that do not include something that is
objectionable to someone. Any attempt to eliminate everything that is objectionable...will leave
public schools in shreds. Nothing but educational confusion and a discrediting of the public school
system can result.... McCollum v. Board of Educ. 333 U.S. 203, 235 (1948) (Jackson, J.
concurring).
Thus, many courts have recognized that public schools have an obligation to administer school
curricula responsive to the overall educational needs of the community and its children. Leebaert v.
Harrington, 332 F.3d 134, 141 (2d Cir. 2003). [W]hile parents can choose between public and
private schools, they do not have a constitutional right to direct how a public school teaches their
child. Parker v. Hurley, 514 F. 3d 87, 102 (1st Cir. 2008). Any other rule would put schools in the
untenable position of having to cater to a curriculum for each student whose parents had genuine
moral disagreements with the schools choice of subject matter. Brown v. Hot, Sexy and Safer
Productions, Inc. 68 F.3d 525, 534 (1st Cir. 1995), cert. denied, 516 U.S. 1159 (1996). See also CN
v. Ridgewood Bd. of Educ., 430 F. 3d 159, 182 (3rd Cir. 2005) (recognizing limits on parents rights
in public school setting), Swanson v. Guthrie Indep. School Dist. 135 F.3d 694, 699 (10th Cir. 1998);
Littlefield v. Forney Indep. School, 268 F.3d 275, 291 (5th Cir. 2001), Blau v. Fort Thomas Pub. Sch.
Dist., 401 F.3d 381, 395 (6th Cir. 2005), Fields v. Palmdale School Dist., 427 F. 3d 1197 (9th Cir.
2005), amended 447 F.3d 1187 (9th Cir. 2006).
Finally, HB516 invites confusion about the constitutional obligations of public school officials, who
are prohibited from discriminating against the expression of an idea simply because society finds
the idea itself offensive or disagreeable. Texas v. Johnson, 491 U.S. 397, 414 (1989). If the
proposed legislation results in the removal of material solely to satisfy those who object to its
content, it could inadvertently expose school districts to liability for violating the First Amendment
rights of other students. See Monteiro v. Tempe Union High School District, 158 F. 3d at 1028,
2
http://www.doe.virginia.gov/testing/sol/frameworks/english_framewks/2010/framework_english_k12.pdf.
rejecting a challenge to books because of racial content, and recognizing the First Amendment right
of students to read books selected for their legitimate educational value.
This legislation distracts from a comprehensive, quality education for students in the state of
Virginia. Schools would do better to emphasize the shared compelling interest in promoting high
quality education. Focusing on the educational criteria for curricular selections provides a
meaningful, sound, and defensible way to evaluate material and serve the educational needs of all
students.
On the basis of these constitutional and educational concerns, we strongly urge you to veto HB516.
Sincerely,
Joan Bertin, Executive Director

National Coalition Against Censorship
Chris Finan, Director

American Booksellers for Free Expression
James LaRue, Director

Office of Intellectual Freedom
American Library Association
Judy Platt, Director

Free Expression Advocacy
Association of American Publishers
Charles Brownstein, Executive Director

Comic Book Legal Defense Fund
Millie Davis, Director

Intellectual Freedom Center
National Council of Teachers of English
Fatima Shaik, Chair

Childrens and Young Adult Book Committee
PEN American Center
Lin Oliver, Executive Director
CC: Attorney General Mark Herring, (804) 786-1991
Society of Childrens Book Writers and Illustrators

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Dear Governor McAuliffe,

Joan Bertin, Executive Director

Chris Finan, Director

James LaRue, Director

Judy Platt, Director

Charles Brownstein, Executive Director

Millie Davis, Director

Fatima Shaik, Chair

Lin Oliver, Executive Director

CC: Attorney General Mark Herring, (804) 786-1991

Society of Childrens Book Writers and Illustrators

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