Federal appeals court weighs challenge to Iowa ban on books with sexual content from schools

Attorneys for LGBTQ+ youth, teachers and major publishers asked a federal appeals court Tuesday to affirm a lower court order that blocked key parts of an Iowa law banning books depicting sex acts from school libraries and classrooms.

The law, which the Republican-led Legislature and GOP Gov. Kim Reynolds approved in 2023, also forbids teachers from raising gender identity and sexual orientation issues with younger students. It resulted in the removal of hundreds of books from Iowa schools before U.S. District Judge Stephen Locher blocked its enforcement in December, calling it “incredibly broad.”

“Iowa students are entitled to express and receive diverse viewpoints at school. But the State — taking aim at already vulnerable LGBTQ+ students — seeks to silence them, erase from schools any recognition that LGBTQ+ people exist, and bully students, librarians, and teachers into quiet acquiescence,” attorneys for the students wrote in a brief ahead of Tuesday's oral arguments before a three-judge panel of the 8th Circuit Court of Appeals in St. Paul, Minnesota.

In addition to schools removing books with LGBTQ+ themes from libraires, they also shut down extracurricular clubs dealing with those issues and removed pride flags from classrooms, the students’ attorneys wrote. Students had to censor themselves about their gender identities and sexual orientations, according to the attorneys.

Attorneys for the state of Iowa argued that the law is constitutional and that the state has a right to enforce it.

“The government’s interest in ensuring an education suitable to students’ age and in preventing minor students’ exposure to inappropriate material is a legitimate, compelling, even substantial one. And removing from school library shelves books that describe or depict ‘sex acts’ is reasonably related to that legitimate interest.” they wrote in their brief.

Iowa enacted its law amid a wave of similar legislation across the country. The proposals have typically come from Republican lawmakers, who say the laws are designed to affirm parents’ rights and protect children. The laws often seek to prohibit discussion of gender and sexual orientation issues, ban treatments such as puberty blockers for transgender children, and restrict the use of restrooms in schools. Many have prompted court challenges.

The organization Iowa Safe Schools and seven students, represented by the American Civil Liberties Union of Iowa and Lambda Legal, sued to challenge the law in November. A separate challenge was filed later the same week by the Iowa State Education Association teachers union, publisher Penguin Random House and four authors. The cases were combined for Tuesday's hearing before the federal appeals court.

Iowa Solicitor General Eric Wessan argued that the plaintiffs lack standing to challenge the law because it can be enforced only against school districts and their employees, not students. He said in his brief that the law, when it comes to curating books in public school libraries, regulates government speech, not private speech, and therefore is not subject to First Amendment protection.

“No matter which way the court rules, either it will be extending the government speech doctrine to public school libraries for the first time, or it will be, for the first time, finding some type of First Amendment protected right for school library books in the 8th Circuit," Wessan told the three judges. "Either way, new ground is going to be broken."

Frederick Sperling, an attorney for Penguin Random House, urged the appeals court to affirm the lower court's ruling that the law is unconstitutional “on its face” in all circumstances.

Judge James Loken pointed out that the 8th Circuit historically has disfavored “facial challenges” and prefers narrower challenges to laws “as applied” in specific sets of circumstances. He suggested that winning limited challenges would send adequate messages to school districts about what they can do.

“The question before this court is not whether some of the books the state defendants can point to can be constitutionally removed from school libraries," Sperling said. "They can, and they have been under existing law before the adoption of (the new law). The question that’s actually before this court is whether this overbroad and vague statute is constitutional. And it’s not.”

Attorneys for the students labelled the prohibition on instruction about gender identity and sexual orientation for students from kindergarten through the sixth grade as a “ Don’t Say Gay ” law, using a nickname that has stuck in other states like Florida.

But Wessan argued that the provision only allows enforcement against schools, not students, and that the sole student-plaintiff young enough to be affected by it — a fourth grader — has not been disciplined or threatened with discipline.

The appeals panel took the case under advisement and did not say when it would rule.