A new policy on library materials that the Knox County school board will vote on next month could require the removal of many books from school library shelves. 

The ACLU of Tennessee has criticized the law's reach as overly broad.

The policy, which board members discussed in a policy review session on Friday, is in response primarily to a new state law. It also comes after months of efforts by the conservative activist group Moms for Liberty to ban books from Knox County schools.

“There is a shift in the Age Appropriate Materials Act in terms of explicit sexual content,” Sarah Searles, the district’s academic resources supervisor for library media services, told board members at Friday’s meeting.

She was referring to the 2022 state law that the Legislature updated this year with more specific language about content forbidden in school libraries. 

Previously, state law has referred to longstanding legal definitions of obscenity, which include a three-pronged test for whether material is protected by the First Amendment. One prong is context — whether a work taken as a whole has “serious literary, artistic, political or scientific value.”

That standard is known as the “Miller Test,” after a 1973 U.S. Supreme Court decision. Courts have applied the same standard with some modifications for material available to minors, maintaining an emphasis on the value of the work as a whole.

But as county Deputy Law Director Gary Dupler explained to the school board earlier in the month, the new law draws on some of definitions of sexual acts spelled out in Tennessee obscenity law but does not refer to “obscenity” itself — essentially eliminating the requirement to consider such depictions in their artistic or creative context.

No Nipples Allowed

The amendments to the state law take effect today. They say that any book or other materials that include any of the following for any reason are banned from school libraries for all grades K-12: “nudity, or descriptions or depictions of sexual excitement, sexual conduct, excess violence, or sadomasochistic abuse.”

For definitions of those terms, the law refers to the state criminal code. “Sexual conduct,” for example, is “Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.”

And if you’re wondering what “patently offensive” means, that is something “which goes substantially beyond customary limits of candor in describing or representing such matters.”

School staff may need some legal guidance in determining which materials go “beyond customary limits of candor,” but some definitions are more straightforward. “Nudity” is “the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering or the showing of the female breast with less than a fully opaque covering of any portion below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.”

Given that definition, there doesn’t seem to be any obvious way that an art history book with photographs of Michelangelo’s David — with its exposed genitals and buttocks — or Botticelli’s nipple-showing “Birth of Venus” could survive in a school collection.

The broadness of the law raised questions from some school board members. Board member Daniel Watson noted that the Bible has passages that could be challenged under it.

“There’s a lot of sexually explicit content and violence and other stuff depending on which version you read,” Watson said. “So is that an unintended consequence of this law?”

Kori Lautner, the district’s assistant superintendent of strategy, said that it’s possible that the Bible could be pulled from library shelves under the law. But she added that the law is only about library materials, and there are different standards for materials that can be used in a course curriculum. So even if the Bible were removed from a library, it could still be used in a religious studies class.

“I don’t think the law was intended to get rid of the Bible,” responded board member Susan Horn, who has pushed for more restriction of sexually explicit materials in school libraries.

Dupler said he didn’t think the law would necessarily restrict books like the Bible that might mention sexual acts without describing them in detail.

Watson, a graduate of the Bible-based Johnson University, shrugged and said, “There’s a lot of sodomy in there.” (The word “sodomy,” of course, is itself a biblical reference.)

Constitutional Questions

In general, board members agreed that they needed to add the language from the new law into their existing policies on library materials. The policy change will be on the board’s agenda for its July meeting, and there will probably be a motion to pass it on an emergency basis — meaning it would pass on one reading rather than the customary two — so that staff can begin cleansing library collections before the school year starts.

Whether the law itself is constitutional remains to be seen. Current Supreme Court precedent on how much latitude lawmakers have to restrict materials from students is somewhat murky, but it does say legislators can't remove materials just because they don't like the ideas or perspectives they contain.

The ACLU of Tennessee argues that dispensing with the context-based Miller Test as a standard invites the kind of content-based discrimination that the test is designed to impede. In a page dedicated to the Age Appropriate Material Act, the civil rights advocacy group says teachers, parents and students should be aware of their own First Amendment rights.

In an email to Compass, ACLU of Tennessee legal director Stella Yarbrough said, “The Age-Appropriate Materials Act is a misguided and overly broad ban on educational materials and literature that invites viewpoint and content-based discrimination. The Supreme Court has been very clear that school boards cannot engage in such discrimination without violating the First Amendment rights of students.”

She urged anyone affected by the removal of materials under the law to contact the group in advance of possible legal action.

It’s hard to say how many books and materials could be removed locally, but the Knox County chapter of Moms for Liberty has identified more than 50 titles in local school libraries that it says have sexually explicit content. The titles and descriptions are drawn from lists compiled by national conservative groups.

Many of the books are by authors who identify as LGBTQ and include gay and queer characters. They also include The Bluest Eye by Nobel laureate Toni Morrison, The Handmaid’s Tale by Margaret Atwood, and the bestseller The Lovely Bones by Alice Sebold. 

Other titles that could fall under the law’s context-free standard are books like George R.R. Martin’s wildly popular Game of Thrones series, which are full of incest, rape, prostitution and grotesque violence, and are in many Knox County school libraries.

Or consider the late and much lauded Knoxville writer Cormac McCarthy. His 1985 novel Blood Meridian, which according to the district’s online library catalog is on the shelves in at least one high school, has been called both one of the greatest books of the 20th century and one of the “most violent works of literary fiction” ever written. Other McCarthy titles currently available in school libraries include depictions of incest, cannibalism and necrophilia.

It is not yet clear how the district intends to implement the policy, assuming it is enacted. Compass has preemptively requested a list of any titles removed from libraries as a result of the law and policy.