Dan Fotoples, J.D., M.A., Director of Content Development, TNC Consulting, LLC
On May 19, 2023, the Department of Education’s Office for Civil Rights (OCR) entered into a resolution agreement (“Agreement”) with Forsyth County Schools (“District”) in Georgia. The Agreement resolved a complaint that the District discriminated against students on the basis of sex, race, color, and national origin because of a book ban.
Facts
In Fall 2021, the District received parental complaints about library books the parents deemed inappropriate. Some complained about sexually explicit content, but some also complained about LGBTQIA+ subject matter. In January 2022, the District Media Committee rejected requests to remove, tag, or separate books with LGBTQIA+ or sexual content. Instead, the committee approved a statement asking parents to take on the responsibility of discussing sensitive topics with their students.
Soon thereafter, the District’s Superintendent notified the School Board that he had authorized the removal of books that were obviously sexually explicit or pornographic. Although some parents had complained about LGBTQIA+ material, the District asserted it had reviewed the banned books only for sexual explicitness, not LGBTQIA+ content. In total, the District restricted or removed 15 books.
At a February 2022 board meeting, parents and students spoke about the decision to remove books. Many parents called for removing additional books, mostly for sexually explicit content, but some called for removing books with content related to gender identity or sexual orientation. Some parents also made negative comments about diversity, inclusion, and critical race theory. The students’ comments focused on gender identity, sexual orientation, and race of the authors or characters in the books.
Notably, students also raised concerns about the impact of the District’s decision to remove the books. Students argued that the ban made the environment harsher for students, especially LGBTQIA+ students and students of color because the decision silenced important perspectives. Students expressed the belief that the District does not care about diversity.
After the board meeting, the District formed a committee to review eight of the banned books. The committee returned seven of the eight books back onto the shelf. The District took no other steps to address the impact of the book removals.
OCR Decision
OCR based its decision on the impact on students, not the District’s intent. The District’s insistence that the ban focused on sexually explicit material was inconsequential. For OCR, the student feedback at the February board meeting alone demonstrated the adverse impact of the book ban. As Title IX and Title VI require the District to address hostile environments based on sex, race, color, and national origin, OCR criticized the District for its lack of responsiveness when the District received notice that its book ban may have created a hostile environment. As such, OCR determined that the District fell short of its legal obligations.
Resolution Agreement
OCR and the District agreed to several actions to resolve the complaint:
- Publish district-wide statements clarifying the screening process and reinforcing the District’s commitment to diversity in its libraries.
- Publish district-wide statements acknowledging the negative impact of its book removal and provide information about filing a complaint.
- Administer a climate survey to the District’s middle and high schools.
- Create a working group to analyze the climate survey results and provide recommendations.
Takeaways
- Given the rising number of proposed or implemented book bans, this OCR Resolution Agreement is likely among the first of many OCR responses to book bans. Additionally, the facts here are not extreme. The District Superintendent made a unilateral decision, allegedly based on sexual explicitness, that a committee later partially overturned. For comparison purposes, some proposed book bans directly and unapologetically target LGTBQIA+ authors or topics, for instance, and other topics associated with diversity, equity, and inclusion. In this resolution agreement, OCR is demonstrating its willingness to pursue book ban complaints as a matter of federal equity and as a counterpoint to restrictive district and state actions. This will likely not be the final time we see a book ban resulting in an OCR complaint and resolution agreement.
- Whenever TNG and ATIXA write a summary of an OCR Resolution Agreement, we remind practitioners that responding to OCR complaints and complying with resolution agreements costs districts time and money. District leaders must consider the cost of noncompliance with federal nondiscrimination laws and should consult with legal counsel when navigating complex decisions fraught with political and legal consequences.
- OCR signaled here that impact is more important than intent in its enforcement actions. The District’s actions led to a hostile environment, regardless of the stated intent behind its book ban. As a result, the District had a responsibility to address a notice of a hostile environment provided at its board meetings regardless of whether the District received a formal complaint, but it did not do so. OCR acted in response, asserting that school districts must consider the impact of their actions, regardless of their intent.
ATIXA will keep you up to date on any future OCR action regarding this and other book bans across the country. Read our latest insights here: https://www.atixa.org/about/blog/.