State Superintendent of Education Ellen Weaver knew she would be in for a ferocious legal fight.
Last month, without Republican opposition, she pushed through her autocratic proposal to control what books and educational materials are permitted in South Carolina public schools. She kicked aside local school boards and librarians, preferring to empower herself and allied parents whose agenda is indoctrination, not education.
Her proposal, which you can read about at the DCDP website (https://www.dorchesterdemocrats.com/blog), is riddled with legal problems. Weaver knew this when, last November, she hired Greenville lawyer Miles Coleman to defend her and the State Board when the challenges start to fly. Coleman is on the Executive Committee of the Federalist Society's Religious Liberties Practice Group. He would be right at home on Trump's federal bench.
Weaver's takeover of libraries and classroom materials is rooted in the current Trump/Republican effort to elevate white supremacy, make America a Christian nation, deny the country's racist past, and marginalize all but heterosexual persons. It is titled Project 2025, and it's a chilling blueprint for what it calls a Second American Revolution. Weaver is a warrior in this movement.
Weaver's plan can be stopped, however. It has many legal flaws that her opponents can exploit to keep lawyer Coleman very busy.
First, her proposal stipulates, disingenuously, that the state cannot make decisions to exclude materials if such decisions are based "primarily on or motivated by...opposition to the viewpoints" in the works. She included this warning as an attempt to get around the legal inconvenience of Island Trees School District v. Pico, decided by the SCOTUS in 1982.
In that case the Island Trees (Long Island, NY) School Board, in cahoots with a local activist group of parents similar to Moms For Liberty, removed nine books from the high school and junior high school libraries because the Board found the books to be "anti-American, anti-Christian, anti-Semitic, and just plain filthy." What books? Kurt Vonnegut, Jr.'s Slaughterhouse-Five was one. Also Desmond Morris's The Naked Ape; Piri Thomas's Down These Mean Streets, Bernard Malamud's The Fixer, and similar classics.
Six students in the district brought suit against the Board on First Amendment grounds. The Court supported them, citing in part a right to receive information. The Board could not order the removal of books "simply because they dislike the ideas contained in those books" or because they want to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." The Island Trees Board would have to prove that its book-banning decisions were not rooted in opposition to ideas with which they disagreed.
This poses a big problem for Weaver. She and her activist Moms have made clear they are opposed to books grappling seriously with issues of gender, sex, racial history, slavery, or any interpretation of American history that challenges 1950s orthodoxy.
Therefore, the first time Weaver bans books or educational materials, students from around South Carolina should file suit against her, the State Board of Education, and every local school board that follows her directive. In addition, they should name as defendants those parents who filed complaints against the books. Force them to hire lawyers and testify under oath about their motivations. It will quickly become evident that their motivations are rooted in opposition to ideas, in violation of Pico.
Second, Weaver relies on the State's obscenity law to provide a definition of the sexual content to which she objects. Never mind that hardly any jurisdiction in the United States bothers to bring obscenity cases any longer. Community standards have changed, but not for Weaver.
The definition in Section C of the obscenity law is so crude and graphic that Weaver would not permit South Carolina students to read it! None of the books she wants to ban meet the definition of obscenity laid out in Section C.
Further, Weaver conveniently forgets the rest of the obscenity statute. It states that books and videos must be "taken as a whole" when they are assessed; cherry-picking sentences or illustrations is not permitted. Also, banned materials must "lack serious literary, artistic, political, or scientific value." This standard will make it impossible for her to prevail. The books she targets possess serious value across the board.
Third, since Weaver has invited parents to bombard school boards with requests to remove books, freedom-loving parents should themselves bombard school boards with requests to ADD books and other materials to school libraries. Make the local school boards and the State Board justify NOT purchasing materials. This strategy will put Weaver on the defensive and build a group of parents willing to do battle with her.
If Democrats adopt these strategies, Weaver will lose in the courts and she will lose the public relations battle. More and more parents will realize that she and the Republican super majority in Columbia are turning their schools into indoctrination camps for Trump's Back to the Future agenda. They won't allow it.
Thanks, David, for addressing and explaining this issue! Christian fascists will only win if we roll-over and accept their dictates without argument or resistance.
Thank you David Rubin for so clearly laying out the problem and the solution. This is important work.
Excellent, excellent and important information and arguments here, David Rubin! Thanks so much for continuing to do this important work.