Summary

Citizens for Renewing America proposed model legislation called the Student Protection and Transparency Act that would prohibit pornographic, sexually inappropriate, or otherwise obscene material from making its way into K-12 schools, classrooms, school-sponsored or affiliated events, or on K-12 campuses. This memo outlines how that legislation comports with existing legal precedent.

Case Analysis: Board of Education v. Pico

In Board of Education v. Pico (1982), six students sued Island Trees School District, claiming that the board had violated their First Amendment rights by removing certain books from the high school and junior high school libraries. A fragmented Supreme Court agreed there was a possible constitutional violation, and voting 5–4, remanded the case for trial.  

The Student Protection and Transparency Act will likely be tested against the principles outlined in Pico. Unfortunately, Pico lacks a majority opinion setting forth a clear standard. The dissenting judges argued that the school board should have great discretion in school materials and rejected the students’ claims. Four Justices ruled that it would be unconstitutional for the school board to remove the books from the libraries for the purpose of suppressing ideas, disapproved of the board’s process for removal as it reflected animus towards ideas rather than a legitimate educational purpose, and spoke of a student right to receive information. Nevertheless, the judges agreed that school officials have wide latitude regarding the selection of books and curricular materials. Justice White voted with the other four Justices to remand the case to trial but disagreed with the plurality opinion. This fractured opinion has resulted in myriad interpretations over the years. Nonetheless, it contains certain principles that lower courts have mostly followed:

• First, Pico emphasizes that why and how schools remove items is central. Materials cannot be removed for political reasons related to the desire to suppress speech. The Student Protection and Transparency Act applies no political or partisan lens to the prohibition of the materials proscribed.
• Second, Pico places a seemingly high bar for the removal of materials, however, the Court stated that “there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political.”  This indicates that the state and school boards have much greater freedom in selecting and choosing materials than removing them. The Student Protection and Transparency Act empowers school districts to make those selection decisions.
• Third, Pico provides that “if it were demonstrated that the removal decision was based solely upon the ‘educational suitability of the books in question, then their removal would be ‘perfectly permissible.’ This suggests that removal is not subject to First Amendment scrutiny if done for “educational” reasons or if clear procedures are adopted that justify decisions for educational reasons. The Student Protection and Transparency Act provides a clear indication of age-appropriate learning with regard to human anatomy and biological functions, proscribing an essential educational threshold for the determination of suitability.

Implications

The fractured decision from the Court in the Pico case illustrates that key operational parameters are established that provide for states to approve or prohibit specific materials in the classroom in the context of the First Amendment rights of students. However, unlike the substance of the Pico case, prohibitions on pornographic, sexually inappropriate, or otherwise obscene concepts and material are simply not a fundamental violation of an 8-year-old’s First Amendment rights while attending a taxpayer-funded public institution. No reasonable judge would rule in such a manner.

Nevertheless, it is important to note that lower courts have ruled in different ways following Pico with regard to the various standards outlined in the Pico case. In Chiras v. Miller (2005), the Fifth Circuit determined that:

 Any discussion of the constitutionality of a state’s decision to reject a textbook for its public schools must begin with the recognition that the states enjoy broad discretionary powers in the field of public education. Central among these discretionary powers is the authority to establish public school curricula which accomplishes the states’ educational objectives.

This indicates that some courts might grant broad discretion and latitude toward the provisions and prohibitions implemented in the Student Protection and Transparency Act under the belief that curricula, materials, and educational content is ultimately up to states and local school districts so long as those decisions are not made through partisan political frameworks that are designed to suppress or violate free speech.

The far-left Ninth Circuit emphasized a different component of Pico when it ruled in Arce v. Douglas (2015) that, “Accordingly, we adopt the standard employed by the district court and hold that the state may not remove materials otherwise available in a local classroom unless its actions are reasonably related to legitimate pedagogical concerns.” 

This indicates that other courts might view the provisions and prohibitions implemented in the Student Protection and Transparency Act primarily through a framework of what is and is not educationally suitable for students with a higher bar for removing existing materials that can already be found in the classroom, in the school library, or on campus grounds.

Regardless of how certain courts may interpret Pico, protecting children from pornographic, sexually inappropriate, and obscene material is a critical part of restoring America and building healthy communities that shape virtuous citizens. It is likely that the adoption of such legislation will trigger legal battles from progressive ideologues who seek to use captive audiences of innocent children to affirm their own sexual beliefs and proclivities. 

Conclusion

While it is impossible to eliminate all litigation risk, the proposed model legislation prohibiting pornographic materials in K-12 schools, classrooms, and school-affiliated or school-sponsored events will likely withstand scrutiny under the Pico guidelines with proper implementation. This means following reasonable procedures for reviewing materials, enacting clear protocols for implementing restrictions, providing transparent guidance for the selection of curricula, and providing educational rationales that comport with community standards to eliminate materials that otherwise appeal to prurient interests. 

States have broad latitude to determine their curricula and what materials are taught to K-12 students. However, parents are the ultimate authority on the suitability of those materials and have the fundamental right and responsibility to protect their children from exposure to obscene and otherwise harmful sexual content and concepts.

The Student Protection and Transparency Act provides the tools to both empower parents and protect our children.

Read more:

Model Legislation to Protect Children from Pornography in K-12 Schools

Model Legislation to Protect Children from Pornography in K-12 Schools (fiscal note required)

Model Legislation to Prohibit Pornography in Independent School Districts