Book challenges

This question threw me into an existential spiral.

Unlike most existential spirals I get hit with these days,[1] this one was fairly pleasant; I got to think about New York State Education Law, due process, and library plans of service.

Here is how it went down:

Well, sure, it’s only natural to want to require a person to read a book before they exercise their right to kick off a costly and time-consuming evaluation process of it.

But yep, the ol’ OIF knows it’s business… having a threshold test to exercise a right creates a legal bone to pick. Best to avoid it if you can.

But hey… if part of the challenge process is a bone, is the whole thing a body? If it’s a body, who gets to inhabit it? What forces govern it? Are they in the library’s control?

If it’s in the library’s control… why enable challenges at all? What’s the point? Is it even required? What is it really for?

IS THERE ANOTHER WAY?

At this point, I started thinking about the recent wild scrambles to batten the hatches and make sure libraries have clear and well-developed collection management policies, so they are ready for book challenges.

Over those years,[2] when I was asked from time to time, “Do we have to have a reconsideration policy?” my answer was, “No, there is no requirement.”[3]

My answer to the inevitable follow-up question was, “While not required, having a reconsideration policy creates a channel for community engagement and feedback, so concerns about collection items have a procedural path to follow. A good policy will ensure the path for evaluating the concern reinforces the ethics of the library and abides by the First Amendment.”

I stand by that reply, but as an innovator, I do want to say: having a “reconsideration” policy for library collection materials isn’t the only way a library can do this.

Consider the current regulatory requirements of public, association, and Indian libraries, each of which must assure the New York State Education Department that it:

(1) is governed by written bylaws which define the structure and governing functions of the library board of trustees, and which shall be reviewed and re-approved by the board of trustees at least once every five years or earlier if required by law;

(2) has a community-based, board-approved, written long-range plan of service developed by the library board of trustees and staff;

(3) provides a board-approved written annual report to the community on the library’s progress in meeting its mission, goals and objectives, as outlined in the library’s long-range plan of service;

(4) has board-approved written policies for the operation of the library, which shall be reviewed and updated at least once every five years or earlier if required by law;

(5) annually prepares and publishes a board-approved, written budget, which enables the library to address the community’s needs, as outlined in the library’s long-range plan of service;

(6) periodically evaluates the effectiveness of the library’s programs, services and collections to address community needs, as outlined in the library’s long-range plan of service;

(7) is open the following scheduled hours:

(8) maintains a facility that addresses community needs, as outlined in the library’s long-range plan of service, including adequate space, lighting, shelving, seating, power and data infrastructure, and a public restroom;

(9) provides programming to address community needs, as outlined in the library’s long-range plan of service;

(10) provides a circulation system that facilitates access to the local library collection and other library catalogs; and provides equipment, technology, and internet connectivity to address community needs and facilitate access to information;

(11) provides access to current library information in print and online, facilitating the understanding of library services, operations and governance; information provided online shall include the standards referenced in paragraphs (1) through (5) of this subdivision;

(12) employs a paid director in accordance with the provisions of section 90.8 of this Part;

(13) provides library staff with annual technology training, appropriate to their position, to address community needs, as outlined in the library’s long-range plan of service; and

(14) establishes and maintains partnerships with other educational, cultural or community organizations which enable the library to address the community’s needs, as outlined in the library’s long-range plan of service.

As shown by the highlighted language, a library is required to periodically evaluate the ability of its collection to meet community needs.

With that ongoing obligation in mind, just for fun, imagine this: instead of a “reconsideration” process as part of a collection management policy, a library continually solicits input via a “Collection Effectiveness Assessment” policy.

Rather than say (in essence), “If you don’t think a particular book belongs on our library, you can file this request for reconsideration,” a Collection Effectiveness Assessment policy could say:

YOUR INPUT MATTERS

As required by state regulations, the NAME Library regularly evaluates the effectiveness of the library’s programs, services, and collections to address community needs, as outlined in the library’s long-range plan of service.

As part of that ongoing evaluation, the library welcomes your input on our programs, services and collections.

Input on specific services, programs, and collection items will be considered in the context of library’s obligations to a) provide a circulation system that facilitates access to the local library collection and other library catalogs; b) provide programming that meets community needs; c) provide equipment, technology, and internet connectivity to address community needs and facilitate access to information; d) provide access to current library information in print and online; and (e) facilitate the understanding of library services, operations and governance.

Input may be submitted by cardholders at [INSERT METHOD].

Once a year, the library will aggregate and assess this input and will factor it into the evaluation of the long-range plan of service and policies that inform the library’s programs, services and collections.

Please provide your input, and it will be evaluated as part of the [YEAR] evaluation cycle.

Of course, a library that used this “give us your input” approach would want to be intentional about how the information is collected and scrupulous as to how the input is assessed and incorporated. The backend of such a system would take some thinking.[4]

But if done with proper attention to detail, this “routine evaluation” rather than a “ad hoc reconsideration” approach could ratchet down in-the-moment pressure to remove books on the basis of their content (which is a First Amendment no-no), while soliciting ongoing (and voluminous) input about library collections in the context of the needs of the community.

Such an approach could also control the pace at which public library boards react to that input, changing it from ad hoc panic[5] to an annual, well-planned, deliberate ritual.

The Collection Effectiveness Assessment approach solicits and empowers individual input but enters it in the context any library must operate from—its duty to meet the overall needs of the public, rather than the perspective of one member of the community. The potential result is input that may go beyond a request to remove or relocate a book; it allows for input on the strategic decisions and policies that select and catalog the books.[6]

So, at the end of all this, what are my thoughts?

I think that if there is a reconsideration policy, it must have clear parameters for who can use it (such as only cardholders or residents of the served community) and after that—as advised by OIF—as few barriers to use as possible.

But I also think there are other ways, rooted in a public library’s regulatory requirements, to empower community members to offer input on collection materials, while minimizing an individual’s ability to initiate a wasteful ruckus.[7] A holistic look at how a library is soliciting feedback might provide an opportunity to shift the library’s approach on this.

Thank you for walking on this existential spiral with me. I hope it was not too dizzying.

The member is referring to NYSED Commissioner Decision #18,402, which resolved an appeal related to books in a school library.

In a nutshell: petitioners[1] appealed to Education Commissioner Betty Rosa after a school board voted to retain five books whose inclusion in the library one of the petitioners had formally requested be reconsidered. Commissioner Rosa upheld the board’s decision and emphasized the legal considerations of evaluating material in public school libraries.

The commissioner’s decision shows the importance of:

1. well-developed collection development policies for school libraries and school library systems;
2. following those policies; and
3. using those policies to ensure that access to school library resources is not limited in a way that violates the state or federal constitution.

The decision did not change law or policy but is noteworthy because it emphasizes that even when a school is accused of having materials that are “obscene” or “harmful to minors,” it is important to follow the law and not to remove books due to an author’s worldview or identity.

Of course, what sounds simple—not removing library materials due to an author’s views or identity—can be complex. Selecting library materials is not simply a matter of preference or gut instinct. Per the regulation at 8 NYCRR 91.1, a school library must have an array of materials to “provide an adequate complement to the instructional program in the various areas of the curriculum.”[2]

8 NYCRR 91.1 means selection of library books must consider not just the context of the library’s collection but the overall instructional program in the various areas of the curriculum—a balancing act that certainly requires consideration of a book’s point of view, which, as the decision describes, cannot be a basis to remove it from the library.

This is why having a collection development policy is so important.

Following a collection development policy can ensure (and document) that the work of assembling a school library collection is not just based on what would be a meaningful and balanced array of books in and of itself but is evaluated in the context of the overall academic operation of the school, while avoiding assertions of viewpoint discrimination.

For this reason, many school district library collection management policies incorporate this regulatory standard into the “selection” part of its policy. A district that does not expressly work from this standard may want to consider using one of the BOCES-supplies model policies[3] to do so.

From there, as emphasized by the decision, once a book is selected and in a school library collection, removal or restriction of access on the basis of viewpoint or identity violates the First Amendment of the U.S. Constitution. 

So, for school districts wondering: how does this decision apply to us? The take-aways are:

1. have a well-developed policy for school library collection development, which incorporates the language from 8 NYCRR 91.1;
2. follow that policy any time books are selected, cataloged, challenged, or removed; and
3. apply the policies to ensure that access to school library resources is not limited in a way that violates the state or federal constitution.

Another take-away (although not expressly stated) would be to not use policy “workarounds” such as removing books from shelves, requiring materials be covered or hidden, avoiding purchasing titles because of threats, or otherwise subverting normal policy and procedure.

For those with the time, reading the decision is highly recommended, as it is a timely primer on these issues.[4] 

Thank you for an important and timely question.

The answer is "Yes."

Of course, behind that answer is layer after layer of complexity.

Layer 1: The "you" in the policy quoted by the question (as in "Content access levels let you control which types of users can view and borrow certain...") could be the SLS, or could be an individual school, or even an individual employee of a school.  It's all about who has the access to control the settings, which is not something that should be left to chance and happenstance.

Layer 2: Databases like SORA are often licensed by school library systems ("SLSs"), not individual libraries or districts. This means that the access controlled by "you" might be controlled by SLS policy, rather than that of a member library (or the SLS's policy could specify that such control is handled at the district or individual library level).

Layer 3: The American Association of School Librarians discourages this type of limit in part 5 of its "Common Beliefs": "Learners have the freedom to speak and hear what others have to say, rather than allowing others to control their access to ideas and information."  This means that once content has been made a part of the school library or school library system's collection per established collection development policy, learners should have access to it.

Taking all these layers into account, a few things emerge:

First, there is a grave risk that restrictions in excess of appliable ethics, regulations, and policy could happen if such access controls are implemented without attention to applicable policy.

Second, if there is no policy that addresses restricting access (whether by age or individual student), that feature of a system should not be used.

Third, if a system with the capability to selectively bar access is acquired, that feature should only be implemented if there is clarity about what policy governs its use, whose policy is it, and who the "you" setting the limits is.  

But as the question points out, even with a policy in place, this may be a dangerous game (or a "creative work-around") when it comes to intellectual freedom, because as the AASL says: "Learners have the freedom to speak and hear what others have to say, rather than allowing others to control their access to ideas and information."

The decision to limit access to content that is part of collection of a school library or library system is an ethically slippery slope.  A district, school, and/or school library system should think very carefully about why it would enable such limits through policy, taking care the policy is consistent with governing ethics and regulations. 

So how is a library, school district, or system to ensure students have access to appropriate content?  The development of a pedagogically appropriate school library or school library system collection lies with their collection policies, NOT the ability to selectively control access to a collection once it is established.  This starts with using established criteria, developed and overseen by trained professionals, assembling a collection that meets the needs of the school.

By regulation (8 NYCRR 91.1), this mandate of a school library is broad: "The library in each elementary and secondary school shall meet the needs of the pupils, and shall provide an adequate complement to the instructional program in the various areas of the curriculum." [emphasis added]

By regulation (8 NYCRR 91.1), the mandate of a school library system is also broad, and it includes developing a plan for "cooperative collection development implementation," or in other words, a written plan for how cooperatively accessed materials are acquired and made available from one district to another.

There is no one way these broad mandates are achieved, and that is where the individuality of a school library system will assert itself.  But regardless of how those cooperative collection development plans are made, leaving the question "who controls collection access by age or individual identity?" unanswered is not a good option.  Through attention to applicable ethics, law, regulation, and the required collaborative governance[1], a school library system can answer that question with clarity, even if the answer is "no one."

There are many types of insurance, and many types of "exclusions" to risks covered by insurance.

Because of this, there is no one answer to this question.  A library can have "general commercial liability" and "D&O", and "E&O", and "professional liability" coverage...and could still not have coverage for a claim related to library content.

Because of this, rather than examine "types" of coverage, the questions for a board selecting or renewing coverage should be:

Our library is aware that in parts of the country, librarians are being threatened with criminal prosecution for providing access to content as part of their job. We want to indemnify and commit to defending any of our employees who are threatened for doing what their job and our policies require them to do. Does our policy cover costs incurred by the library for providing such an indemnification and defense?

and

Our library is aware that in parts of the country, librarians are being harassed and/or threatened by members of the public for providing access to content as part of their job.  Does the carrier provide resources or risk management support in the event such acts aimed against our employees and volunteers?

For library employees and volunteers, the questions are a bit different:

As the board is aware, librarians across the country are being threatened with criminal prosecution for providing access to content as part of their job. I would appreciate assurance that the library will commit to indemnifying and defending any of our employees who are threatened for doing what their job and our policies require them to do.  Can the board pass a resolution assuring us of that?

and

As the board is aware, librarians across the country are being harassed and/or threatened by members of the public for providing access to content as part of their job.  What resources or risk management support will the library provide employees and volunteers in the event such acts aimed against them?

An important take-away here is that not all risk can or should be mitigated only by insurance. 

Organizations facing expenses, disruption, and threats to employees as the result of protest and intimidation generally have an array of protections they can use to prepare for risk.  This array can include insurance, but can also include:

• Budgeting for contingent needs (such as PR assistance, legal, security, private investigators, and added security);
• Using policy and procedure to prepare for likely scenarios;
• Staff and volunteer training;
• Connecting with advocacy groups (locally and beyond);
• Planning with local law enforcement and the district attorney's offices.

While the question is about insurance (and the answer is: yes, you can get insurance that covers just about anything...just read the fine print to make sure what you think is covered is actually covered), it is really about protection.

Insurance can be great protection, and libraries should use the two questions above to confirm (in writing) that their current policies protect their trustees, employees, and volunteers for First Amendment-related contingencies.

But insurance is just one part of that protection.  When it comes to attacks based on library content, solid policies, a knowledgeable board, and a confirmed commitment by leadership to stand with employees when the going gets tough are just as important.

Thanks for a great question.

DO ensure your school district library system, school district, or school has a robust and well-thought-out "school library materials policy"[1] ("Policy") governing selection, procurement, cataloging, lending, concerns, re-evaluation, and removal of library materials.

DON'T forget to train every person with a role in that Policy[2] on how it works, and why the district has it in place; this includes spending time on the law, regulations, and ethics[3] that govern it.

DO ensure that experienced lawyers and policy-makers have reviewed the Policy for both legal compliance, and compatibility with the unique environment at your district or school.

For example, if your school has an active PTA that likes to fund-raise and donate books to the school library, the method of accepting those donations should conform to the "selection" part of the Policy.[4]

DON'T adopt a Policy and then let it gather dust.  A policy that governs selection, procurement, cataloging, lending, concerns, re-evaluation, and removal of school library materials is a vital part of a school's library--which is a vital part of a school.

DO make sure your Policy honors the professionalism and qualifications of your school librarians and media specialists.  When considering how your district's Policy applies in real-world situations, remember that your school library staff are trained in the selection of library materials.   Because of that, your district's Policy will delegate responsibility for selection and cataloging to those professionals[5] ...and the law in New York, policy of your district, and job descriptions will back that authority up.

DON'T create a potential liability for your school by taking quick steps related to library collection management issues without checking with your district's Policy and lawyer.  Cases such as Pico[6],  the seminal case regarding school board over-reach regarding school materials, happened because school leadership took hasty action without considering policy.

DO maintain familiarity with the most basic tenets of the law in New York regarding school district library systems and school library operations.  This includes Education Law § 1709(1), Education Law §1711[2] [c, d], Education §Law 701, Education law §702, Education Law §310, 8 NYCRR § 90.18 and 91.2.  For a good primer on these, review the NYSED Commissioner Decision 14,229  "Matter of Carney."[7]

Notably, the case law and NY Education Commissioner decisions emanating from these laws and regulations show that ad hoc decisions about curricular and library materials imposed without consulting policy can lead to legal claims, creating unnecessary media attention, community tension, and expense for school districts.

DON'T impose "creative work-arounds" such as using "soft" directives to influence school library collection issues without following policy.

Hypothetical examples of such "creative work-arounds" include:

• Directing library staff to keep "controversial" books in the collection, but move them off the shelves and into a store-room;
• Stigmatizing books in the collection by making them available "by request only";
• Telling parents and guardians with concerns that library material will be removed, without referring them to the relevant policy for lodging a complaint or requesting that it be re-evaluated;
• Identifying books that may only be checked out after obtaining parent/guardian consent[8];
• Sharing lists of books checked out by students in excess of what professional ethics, FERPA and CPLR 4509 (regarding privacy) allow;
• Directing school library employees to avoid selecting a certain "type" of material, even if that material is otherwise appropriate per the district's Policy;
• Basing content bans on categories of identity protected by local, state, and federal civil rights laws.

These are just a few examples...but anything that would remove or restrict access to school library materials, without applying due process, risks a legal concern and tripping the factors found unconstitutional in Pico.

DO build an administrative and educational team that is READY to respond to concerns about curricular and library materials.  

When it comes to content choices in the classroom or in the library, no Superintendent, Principal, or school board chair can do it all. 

A team consisting of the school librarian, experienced teachers and administrators, the district's lawyer, and as needed, the school board, should be ready to respond promptly when there are materials concerns. [9]

DO remember that for every school library material challenged, there are people being impacted by the challenge--including yourself.

These are tough times for school administrators.   Across the country, there is a great awakening to the importance of school boards and the leadership of public institutions such as libraries.

This is good, but it has turned school districts and libraries into zones of potential controversy, with administrators charged with keeping the peace--and people threatening lawsuits on all sides.

At such times, there are three things that, when combined, can create refuge and stability:

First: a cool head.

Do not take an ad hoc action when presented with a library materials concern; lead with policy.

Second: a good team. 

Rely on your people.  They will help ensure legal compliance, the well-being of students, and good service to the community.

Third: a solid policy.

Have it, know it, follow it.

Administrators who find the culture wars on the doorstep of their schools cannot avoid controversy.  But when controversy arrives, if they DO follow policy, and DON'T take ad hoc steps in a panic, school administrators can provide a structure for communities to navigate open and honest discussions[10] of library materials, community values, and their educational environment.

Below is a template[11] for organizing a response, when a library materials[12] issue happens at your school.

School library material concern worksheet

For internal and personal use only

[1] Across New York, this type of policy has many names, and sometimes, is covered by numerous policies.  New York prioritizes local control of school district policy, so a diversity of approaches is right and proper.  The point is that no matter what it is called, or how many policies end up applying, a district has a policy that covers selection, procurement, cataloging, lending, concerns, re-evaluation, and removal of school library materials.  Very often, this will need to be coordinated across school library systems.

[2] For the rest of this article, we're using "Policy" with a capital "P" to denote whatever policy or combination of policies a district has adopted.  That's right, with a capital "P" that rhymes with "C" that stands for "cool" (as in, "We're cool; we have a Policy for this").

[3] The ethics of the profession of school librarian as emphasized by NYSED are found at http://www.nysed.gov/curriculum-instruction/teaching-learning-intellectual-freedom

[4] Sometimes, this might mean having to say "No, thank you," or "We need to take a different approach," to the PTA.  Just another day in school administration.

[5] This is another factor that will vary from district to district in New York, but every policy I have seen grants a significant role to the librarian.  This is why a good hiring pipeline for qualified school librarians and media specialists is critical.

[6] Found at: https://www.oyez.org/cases/1981/80-2043 . This US Supreme Court case ruled that "although school boards have a vested interest in promoting respect for social, moral, and political community values, their discretionary power is secondary to the transcendent imperatives of the First Amendment." 

[7] Found on the NYSED site at http://www.counsel.nysed.gov/Decisions/volume39/d14229

[8] This one is a HUGE concern, because in addition to potential legal and regulatory violations (about which countless law review articles and books have been written), it sets a precedent of parent/guardian pre-approval for ALL school materials...something that is antithetical to the democratic process by which public schools operate. 

[9] "Promptly"...but not immediately.  The benefit of having a team ready to go, and letting parents or community members know that your school is organizing a response per your district's policy, is that it signals that you take the complaint seriously, but also gives the situation breathing room.

[10] Yes, I know "open and honest" can often sound "angry and passionate."

[11] As with all templates on "Ask the Lawyer," this one is illustrative only.  A district or administrator wanting to develop such a resource should confirm a final draft with their lawyer.

[12] This template is for library materials concerns; there are some different factors when there is a challenge to curricular materials.

In speaking to different libraries about being prepared for book challenges, I have repeatedly stressed one very important element: have your policies ready.

This question shows the depth of consideration that goes into that simple requirement.

In this case, that "depth" is found in the rocky chasm of the LGS-1, New York's end-all, be-all rules for public document management.  Need to know how long to keep records for a bingo game authorized by a village?[1]  Or how long to keep a record of exhumation?[2]  Or how long we hang onto bridge inspection records?[3] It's all in the LGS-1.

The documents the member references are sections of the LGS-1.

They look like this:

and

Looking at these requirements, the member's question is: "[S]hould the district have kept a list of all books in their libraries in any given year?"

The answer is: MAYBE, but not DEFINITELY.

Here is why:

The first section referenced by the member, at first blush, looks like it requires the retention of "book lists" for six years.  But examining that precise section, you will see the requirement is limited to records submitted prior to the "consolidation of school districts." 

So, outside of a district consolidation, section LGS-1 15, does not require compiling a list of books.

The next sections, LGS-1 598 and 599, refer to a school district maintaining records related to a "Catalog of holdings" and "Individual title purchase requisition," respectively.

We'll tackle 598 first.

598 requires that a "Manuscript or published catalog" of "holdings" must be retained "permanently."  It then requires that a "Continuously updated catalog" be retained until it is "superseded" or "obsolete."

This means that a district library's "catalog of holdings" that exists in a static form (like a print or PDF list) must be retained permanently, but a list of holdings that is ever-changing (like an ILS) is only retained until it changes form--or that form stops being useful.[4]

In practical terms, this does mean that if the library produces a static list (in print or electronic form), it must be retained forever.  That obligation, however, does not obligate the library to create such a list in the first place.  Meaning, in other words: if the library only uses an ever-changing catalog, it doesn't need to retain any particular copy.

This brings us to 599, which requires that an "[i]ndividual title purchase requisition" (the documentation showing a school library bought a book) must be retained for one year.

Again, in practical terms: while per 598, a school library is not obligated to compile a printed list showing that "Not All Boys are Blue" is in its library's collection, per 599, it does have to retain (and produce, if not otherwise accessible through FOIL) a school’s requisition to purchase "Not All Boys are Blue" if requested.

This gets more interesting as one considers that LGS-1 600 (also seen in the purple-bordered excerpt above), regarding "Records documenting selection of books" sets no minimum retention period.  Meanwhile, LGS-1 601, regarding "Library material censorship and complaint records" mandates such records be retained for at least six years (and encourages considering saving them for much longer, which strikes me as a good idea).

The upshot of these various rules creates a regime where a district is empowered to pick and choose, to some degree, what records it wants to create...but once created, imposes a very particular set of parameters for retaining, purging, and disclosing them.  This is why my answer to the member's question must be so ambiguous.

It is also why it is very important that a district have a well-developed policy on this issue.

Below are some examples of what, depending on the records a district elects to create, a district can say in answer to the question: "I want to make sure I approve of all the books my taxes paid for this year.  Can I have a list of all the books?"

[If the library maintains a published list and wants to be friendly.] "Sure thing.  We compile and publish a list of books in our collection every year as of the first Monday of September.  Do you want the one showing all the books in one particular library, or all the books in the district?"

[If the library doesn't maintain a published list, but has a continuously updated catalog, feels friendly, and allows access to library computers.] "No, we don't publish such a list.  But we do have a continuously updated catalog you can search on this terminal."

[If the library doesn't maintain a published list, has a continuously updated catalog, doesn't allow just anybody access to its computers, but feels somewhat helpful.] "No, we don't publish such a list.  But we do have a continuously updated catalog you can request a copy of."

[If the library doesn't maintain a published list, doesn't allow access to computers, and doesn't feel helpful, but does feel puckish.] "No, but if requested, we can supply you with a copy of every book requisitioned last year."[5]

[If the library doesn't maintain a published list, and doesn't want to offer alternative ways to share the information.] "No, we don't have that."

[If the library doesn't maintain a published list, and is okay risking a spat.]

"No."

Optional rider to all the above answers: "Here is a copy of our FOIL policy so you know the process for requesting our public records through our FOIL officer, and can be aware of our copying charges and the process for requesting electronic copies."

Now, as any veteran of public relations battles over school district policy knows, there's a time to be helpful, and there's a time to say "no."  I am not endorsing any particular answer, but based on a district's policy, it should know what records it keeps (and doesn't keep), and how people can access them.

From my perspective, if there isn't a need to compile information, it shouldn't be compiled.  Further, FOIL does not create the obligation to compile information if it is not already compiled.  On the other hand, waffling and appearing to dodge the question when concerned citizens are on the hunt for "objectionable material" might not be the best way to fight the battle for intellectual freedom.  "We don't have a list but we have a continuously updated database" strikes me as a glove-slap; it invites a fight...but nevertheless, if accurate, might be a perfectly valid response.

From my high horse over here in law-law land, a district should proceed from the presumption that if a book is in a school library's catalog, it belongs there; this is the stance that supports intellectual freedom, while also setting a good example for the students (but I am not the one who has to deal with angry community members storming a school board meeting).

Regardless of my personal thoughts on the diplomatic aspects of this issue, from the perspective of intellectual freedom, information access, education law, the LGS-1, and the First Amendment, here is what's important: have a sound policy governing 1) how library books are selected; 2) how library books are cataloged;[6] 3) how library books are challenged; and 4) how library books are removed, and follow that policy.

If, as part of that policy, a district has the desire and capacity to create an annual (or decennial, or whatever time span it wants) list of books in the school library catalog, great, but if such a list is created, it must be kept forever.  And if the district only uses a continuously updated library catalog, it should be clear from the policy who can access it, and how (at the school?  By appointment?  Remotely?).  And all of this turns on the district having a designated FOIL officer and process for timely responding to, assessing, and meeting FOIL requests.

So, there is my answer...and I know it rests on a dangerous triangle of law, practicality, diplomacy.   This stuff isn't easy.

I wish you a clear head, a steady heart, and a ready wit as you face whatever challenges come your way.

[1] 8 NYCRR §185.15 (2020); see schedule items 562-564.

[2] 8 NYCRR §185.15 (2020); see schedule item 136.

[3] 8 NYCRR §185.15 (2020); see schedule item 1085.   By the way, it's "6 years after structure no longer in use or inspected features have been replaced," which I find rather terrifying.

[4] Kind of whimsically sad notion: "You are needed, until you change or you aren't needed."  I would love to meet the person who wrote this part of the LGS-1; they had to be a philosophy major.

[5] I don't advise using this one.

[6] Including having a published list, or simply having a continuously updated database.

I am writing this on May 23, 2023. 

It has been well over a year since I started working with school district libraries and regional BOCES on the ethics, law, and policy considerations of school library collection concerns.[1]

In that time, I have worked with many on the front lines of this issue, and heard their stories: librarians worried their school's policies aren't up to the challenge, librarians enduring insults and threats, and librarians developing contingency plans for the day when the anger is directed at their school library.

The sessions I have worked on have focused on different ways to be prepared: 

• Be certain of your ethics
• Know the laws that pertain to your library
• Know your district's procedures
• If necessary, update your district's policies
• Build a team that is ready to respond
• Have a plan for that team so they work seamlessly
• Memorize an "elevator speech" on intellectual freedom
• Keep calm.

The member's question addresses a factor that cuts across every facet of preparation: be ready to play offense. 

To reiterate, the member asks: [Do] school librarians facing these kinds of accusations have any recourse to bring action against the organization or individuals within the organization making these kinds of possibly slanderous and libelous accusations[?]

The answer is: YES.

Some of the more possible legal tactics are listed below, along with tips on when a librarian should reach out to their own personal lawyer.

A few disclaimers, and tips for being ready to employ these possible tactics, come next.

Possible Legal Tactics

If a school librarian is wrongly accused of a crime, or of incompetence at their job, that can be grounds for a claim of defamation (slander or libel, depending on how expressed).

If a school librarian is subjected to acts which alarm or seriously annoy them, and serve no legitimate purpose, there can be grounds for a harassment claim and protective order.

If social media is used to attack a librarian's character, or to abuse or stalk them, there can be grounds for account suspension and other remedies.

If a school librarian is subjected to abusive or negative comments regarding gender, sexual orientation, race, or religion that create a hostile environment, and after a complaint, nothing is done to stop the behavior, it can be a violation of the New York Human Rights law and federal civil rights laws.

If a school librarian is subjected to a coordinated attack by a registered charitable organization or PAC in violation of formation documents or state/federal law, the organization's actions can be reported to the Attorney General or other regulatory authority.[2]

If a school librarians' image is used to raise funds and/or to agitate people into donating money or for other commercial purposes, there can be grounds for a case based on misuse of the librarian's right to personality.

If a school librarian is subject to abuse or conduct that leads to stress-induced workplace injury, they can bring a claim for worker's compensation.

If a school librarian raises concerns regarding harassment, abuse and safety, and is subject to retaliation for raising such concerns, such retaliation could be the basis of a claim based on violation of state and/or federal labor law.

If a school librarian's employment is threatened or ended due to wrongful accusations, the wrongful accusations can be addressed via a combination of legal claims.[3]

For every possible "cause of action" (the items in bold) listed above, there is a precise formula, deadline, and basis for damages that will require careful analysis of the facts.  For this reason, obtaining timely and competent legal advice is essential.

A Disclaimer

Every one of the above-listed "causes of action"--and more--can be used to fight abuse and harassment based on performance of a school librarian's work...if the right elements are present.  That said, make no mistake: 

• A person or group who thinks a particular book shouldn't be in a library has a right to state their opinion;
• A person or group who thinks a particular book is harmful may have a right to use policy and procedure to challenge that book within a library's catalog;
• A person or group who has a bona fide belief they have witnessed criminal behavior has a right to report it.

This is the United States of America, and we are in the mighty State of New York.  If a person wants to say they don't like a book--and even if they want to say they don't like that pesky librarian--they get to say that.[4]

That said, a person who uses their voice and power to defame, harass, threaten, and injure[5] a school librarian may have to face the consequences.

Being Ready to Bring Consequences

To assess if advocacy or self-expression by a person or group protesting books in the library crosses a line, a school librarian should seek the opinion of an attorney.[6]

This attorney does not need to be an expert in First Amendment jurisprudence, Labor Law, or Education Law...but should have some experience in handling significant matters related to the tactic being explored (or at least a willingness to roll up their sleeves and do serious research[7]), and be ready to assess the full facts of what the librarian is dealing with. 

What does this assessment look like? School librarians, once you retain an attorney through a written retainer agreement,[8] be ready for that attorney to have to spend up to ten or more hours gathering information, researching, and developing an array of options.[9]  The lawyer should review the policies and procedures that create the playing field for the drama unfolding before deciding on a course of action[10] (assessing the viability of legal claims should not be a hasty exercise).  And when the initial assessment is complete, expect a written opinion setting out their options, so you can make an informed decision before the attorney takes any action.[11]

In addition to exploring claims a school librarian can bring, some of the above-listed items are relief the employer may be obligated to bring...meaning the librarian's lawyer should be ready to articulate the strong "expectation"[12] that the school or district will go to bat to protect the rights and safety of their employee.  A district or school does not need to stand idly by when its librarian is under attack--and in many cases, the options listed above are available to the school, as well as the librarian.

Whenever possible, the fight for intellectual freedom is not a battle to wage alone!

Which brings us back to our other tactics:

• Be certain of your ethics
• Know the laws that pertain to your library
• Know your district's procedures
• If necessary, update your district's policies
• Build a team that is ready to respond
• Have a plan for that team so they work seamlessly
• Memorize an "elevator speech" on intellectual freedom
• Keep calm.

All of these can help if the legal tactics above need to be utilized. All of these can help if you need to decide that the best defense might be an offense. 

So: [Do] school librarians facing these kinds of accusations have any recourse...?

You bet they do.

Thank you for an excellent question.

[1] Presentations include: Wayne-Finger Lakes BOCES on March 2, 2022; Southern Adirondack Library System on March 11, 2022; Monroe County Library System on March 21, 2022.  Many thanks to the school district library system directors who invited me into their space for these events, and many thanks to the school librarians for their courage and commitment during difficult times.

[2] Such as the Internal Revenue Service.

[3] "Combination of claims" is my catch-all for a contract violation, policy violation, union grievance, random legal violation, etc.

[4] The First Amendment: "Making no one happy since 1791."  Ah, democracy.

[5] "Injure" in the legal sense, meaning a "tort," not just a physical injury.

[6] By this, I don't mean the district's attorney, or even the local BOCES attorney (although they should be helpful, too).  By this, I mean an attorney who is 100% only concerned with the rights and interests of that particular librarian.  To find that attorney, contact your area's local bar association, or ask for a referral from a trusted attorney who practices in another area of law (attorneys like to refer people to other attorneys who can provide good assistance).  If you are worried about costs, see footnote #10.

[7] Did you find a newbie?  My advice is to never write off any attorney willing to admit they don't have extensive experience IF they are willing to connect with a mentor and/or do the research to develop experience in a particular area or law.  Just make sure they don't charge you too much for learning on the job!

[8] Yes: a written retainer agreement.  Not informal advice from your cousin the lawyer, or a third-year law student, but someone with malpractice insurance who gives you a WRITTEN opinion you can rely on.

[9] For example, the attorney for a school librarian being bullied on social media should assess: 1) is this something the school district's attorney should handle? 2) Is there a union that should be fighting for the librarian? 3) Is there relevant school policy that should be enforced? 4) Are the issues causing or contributing to harassment, abuse, threats, or a medical condition? 5) Is social media a factor?  --Just to name a few.

[10] This part sounds boring, but it is vital.  For an example of how such tactical considerations coalesce, see https://pen.org/wp-content/uploads/2023/05/1-Complaint.pdf.

[11] As I have written before, if you are a librarian concerned that a right to read issue could impact their job, and those hours of attorney work are unaffordable, contact the Merritt Fund.

[12] Did I say "expectation?" I mean "clearly written demand."