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There has been another flurry of filings in a federal lawsuit against the Autauga-Prattville Library Board that could set the tone for library policy across the state.
The board on Monday filed a motion to dismiss the suit on multiple fronts, arguing that the suit against the February policies is now moot, and that the challenge to current policy is “not ripe.” The motion also argues the plaintiffs lack standing due to lack of sufficiently concrete injuries.
The plaintiffs Friday filed a lengthy rebuttal, claiming that the policies clearly do result in concrete and actual injuries to the patrons who have filed suit.
The plaintiffs also gained the support of the Freedom to Read Foundation, which filed an amicus brief Friday to support their position.
The foundation argues in the brief that the current policy requires the complete removal of any books vaguely “recommended for minors” if they contain any sexual content whatsoever.
“… librarians at the library are effectively prevented from acquiring books that discuss sex in some form and have been ‘recommended’ for minors,” the foundation states in its brief. “For example, ‘To Kill a Mockingbird’ is recommended by its publisher for ages 11 through 18 and is listed on the library’s website as being suitable for readers in grades 9-12, but its story involves an alleged sexual assault. Similarly, another staple of the high school reading curriculum, ‘The Catcher in the Rye,’ includes many sexual references, is recommended by the publisher for ages 12 through 17, and is listed on the library’s website as being suitable for readers in grades 9-12.
“As the policy now stands. a librarian could reasonably conclude that these books are ‘sexually explicit’ and because these books are ‘recommended for minors,’ ‘To Kill a Mockingbird’ and ‘Catcher in the Rye’—not to mention many other classic works of literature, history and so forth—must be pulled from the shelves.”
The APPL board passed policies in February that outright prevented the collection of books “recommended to minors” discussing sexual orientation and gender identity in addition to sexual content and requiring that selection criteria to be considered in the process of removing books. After the filing of the lawsuit, the board passed new policies in June that only bar sexually explicit content from the sections for minors and shift responsibility for other decisions to the library director. However, an accompanying resolution makes it clear that the board cannot overrule the director’s decision to remove books for minors that discuss sexual orientation or gender discordance.
The board argues in its filing that the update of the policies in June show makes the claims against the February-passed policies moot.
“First, as explained above, the change to the policies resulted from the Board’s genuine desire to continue receiving state funding pursuant to the APLS’s administrative rule change making state funding conditional upon the Board’s adoption of certain policies,” the board wrote in its motion. “The new policies closely track the language of the APLS rule to ensure the Board’s continued eligibility for state funding, not to manipulate the Court’s jurisdiction. The burden is on the Plaintiffs to show otherwise.”
The plaintiffs argued that the February policy already complied with the new APLS code, weakening the argument that the June changes came to satisfy those requirements. The plaintiffs also cited a Facebook post by Clean Up Alabama leader Hannah Rees in a Moms for Liberty group, stating “Make sure to note that we did not back down, exact same still no gender identity and sexual orientation but presented differently to get a lawsuit dismissal. We have still won and books have been removed from the library and will not be acquired further.”
The board’s motion admits that the February policies “on their face, restrict the Plaintiffs’ access to any constitutionally protected material based on content,” but said the new policies limit content-based restrictions to sexually explicit and obscene content. With this in mind, the board argues that the plaintiff’s claims are “not ripe” due to a lack of actual injury.
“Moreover, the Plaintiffs have not established a sufficient hardship if the Court withholds consideration of these issues in this lawsuit,” the board’s motion reads. “Based on the pleadings, it appears the Plaintiffs have not even attempted to avail themselves of the reconsideration procedures established by the new Reconsideration Policy. Therefore, they themselves are to blame for any hardship they may feel in not being able to check out their preferred reading material, especially since the Selection Criteria policy was adopted over two months ago.”
Plaintiffs argue the removal of the books from the shelves and the limitation on acquisition of books have caused actual and ongoing injuries to them, as they seek to check out materials that are no longer accessible due to the policy.
It is unclear what books, if any, have been removed from circulation since the passage of the June policies. Numerous books that appeared on a list compiled by “mad mommas” that largely include LGBTQ-themed content have been pulled from shelves but interim director Tammy Bear told APR at the time that those books had merely been pulled for review and had not been removed from the collection. Still, the books were not only removed from shelves, but from the library catalog as well.
The back-and-forth filings bring the lawsuit near the end of its current stage as Judge Myron Thompson considers the board’s motion to dismiss as well as a request by the plaintiffs for preliminary injunction.
The plaintiffs have until Friday to submit one last filing in response to any motion by the defendants opposing the preliminary injunction. At that point, the issue will be “fully briefed” and Thompson can then issue a ruling. Neither party has suggested a hearing would be necessary, as the board is only challenging the lawsuit facially and not materially.
