Watch dogs and cool cats: Protecting access in school libraries By Mary S. Tise, Librarian, Cab Calloway School of the Arts The Charter School of Wilmington State Inservice Day, October 12, 2007

Our time together: Snapshot of Delaware’s youth Issues for school libraries The courts have spoken, but what did they say, and did we hear them? ALA intellectual freedom documents

Delaware’s Youth today: data from the Children’s Defense Fund ( A child in Delaware is born into poverty every 6 hours… A child in Delaware is abused or neglected every 7 hours. A child in Delaware dies before his first birthday every 3 days.

Delaware’s Youth today: data from the Children’s Defense Fund ( 10.4% of Delaware’s year-olds are not enrolled in high schools and are not high school graduates. 105 Delaware children and teens are in juvenile or adult correctional facilities.

Delaware’s Youth today: data from the Children’s Defense Fund ( 17,000 Delaware children have no health insurance. 8,080 Delaware children are being raised by a grandparent. 73,803 Delaware children are in the School Lunch Program.

Disenfranchised youth… Less likely to have a driver’s license and car to drive themselves to a place that has information Less likely to have a job and therefore money to buy information Less likely to be granted access to certain information by adults in control

Every aspect of society… is obvious to Delaware’s youth.

What do they want? Everything!

Issues for school libraries How much information do we allow students to have? Should we label materials according to perceived appropriateness? Do students have a constitutional right to unfiltered access to the Internet?

It’s the LAW! U. S. Constitution Supreme Court decisions Other court decisions

The First Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Corollaries: The right to speak is meaningless without the right to be heard; therefore, receiving speech is a First Amendment right The library is the place set aside by government for the receipt of speech; therefore, use of a public library is a First Amendment right What about school libraries?

BUT…Students are minors! Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969)

What rights do they have? “[T]he right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom…[S]tudents too are beneficiaries of this principle.” Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1882) (plurality opinion)

Minors become adults… “[P]eople are unlikely to become well- functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.” American Amusement Machine Association, et. al., v. Teri Kendrick, et al., 244 F3d 572, 577 (7 th Cir. 2001)

Limits to minor’s rights… “educationally unsuitable” “pervasively vulgar”

What is “educationally unsuitable”? “…books were indecent, in bad taste, and unsuitable for educational purposes” Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1882) (plurality opinion) Relates to school curriculum School libraries provide students with both curricular and extracurricular materials

What is “pervasively vulgar”? “Why must the vulgarity be pervasive to be offensive? Vulgarity might be concentrated in a single poem or a single chapter or a single page yet still be inappropriate.” Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1882) (plurality opinion)

Classroom vs. Library “In matters pertaining to the curriculum, educators have been accorded greater control over expression than they may enjoy in other spheres of activity.” Library, unlike a course curriculum, as a “repository for ‘voluntary inquiry’” 862 F.2 nd 1523, 1525 (11 th Cir. 1989)

Therefore,… “Students’ First Amendment rights in the school library context, therefore, are broader than those in a class, a school- sponsored assembly, or other curriculum- based activities.” Chmara, Theresa. Intellectual Freedom Manual. Chicago: American Library Association,

“Content” or “Viewpoint-Neutral” Decision to restrict access may not be made based on the ideas the books express Access includes library spaces, materials, labeling

Labeling Labels as directional aids Labels as guides to content Labels and content neutrality

In loco parentis The right of schools to discipline students, to enforce rules and to maintain order Limits imposition of excessive physical punishment

Break time! Take 5!

Internet in schools More terminology! “obscene” speech “harmful to minors” speech child pornography

“Obscene” speech Appeals to a prurient interest and is without redeeming social importance (1957) Roth v. United States, 354 U.S. 476 (1957) Depicts specified sexual conduct in a patently offensive way, appeals to a prurient interest and lacking in serious literary, artistic, political, or scientific value (1973) Miller v. California, 413 U.S. 15 (1973)

The three-part test 1. Whether the average person, applying “contemporary community standards” would find the work, as a whole, appeals to the “prurient interest” 2. Whether the word depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law 3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value Miller v. California, 413 U.S. 15 (1973)

“Harmful to minors” A broader category of “obscene” speech is unprotected for persons under 17. The test parallels the obscenity test but the considerations are in the context of offensiveness and serious value for minors. Ginsberg v. New York, 390 U.S. 629 (1968)

“Harmful to minors” Material cannot be deemed harmful to minors if it would be constitutionally protected for a seventeen-year old even if one might conclude that it was “harmful” for a five-year old. American Booksellers Assn. v. Virginia, 882 F.2 nd 125, 127 (4 th Cir. 1989), cert. denied, 494 U.S (1990) and American Booksellers v. Webb, 919 F.2 nd 1493, (11 th Cir.), cert. denied, 494 U.S (1990)

“Harmful to minors” “[T]he strength of the Government’s interest in protecting minors is not equally strong throughout the [age] coverage of this broad statute.” Reno v. ACLU, 521 U.S. 844 (1997)

“Harmful to minors” “Harmful to minors” means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement or sado-masochistic abuse which predominately appeals to the prurient, shameful or morbid interest of minors and is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors. Delaware Code, Title 11, Chapter 5, Subchapter V, §1365 Obscene literature harmful to minors; class A misdemeanor.

Child pornography A third category of unprotected speech encompasses portrayals of actual children engaged in sexual activity, regardless of whether the speech in question would otherwise meet the criteria of pornography in Miller v. California. New York v. Ferber 458 U.S. 747 (1982)

Child pornography Ferber does not encompass “virtual” child pornography—whether generated by computer or using young-looking adults as actors. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

Right to privacy (g) “Public record” is information of any kind, owned, made, used, retained, received, produced, composed, drafted or otherwise compiled or collected, by any public body, relating in any way to public business, or in any way of public interest, or in any way related to public purposes, regardless of the physical form or characteristic by which such information is stored, recorded or reproduced.

Right to privacy For purposes of this chapter, the following records shall not be deemed public: (12) Any records of a public library which contain the identity of a user and the books, documents, films, recordings or other property of the library which a patron has used 29 Delaware Code, § 10002, Definitions

Help is here! American Association of School Librarians Intellectual Freedom Page guides/intellectual.cfm American Association of School Librarians Intellectual Freedom Page guides/intellectual.cfm Free Kid’s Guide to Intellectual Freedom rRights.pdf Free Kid’s Guide to Intellectual Freedom rRights.pdf

Help is here! Dealing with parent concerns Dealing with parent concerns

Thanks for your participation!