By David Nash, Esq., Director of Legal Education and National Outreach
On December 9th, 2024, Governor Murphy signed the Freedom to Read Act into law. The new law, P.L. 2024, c. 96, is intended to ensure that a thoughtful process is established to address any attempts to have books or other materials removed from school libraries and public libraries. The law requires school districts to adopt policies addressing the curation of library materials and the process for addressing objections to library materials and sets minimum standards for those policies. In order to assist school districts, the Commissioner of Education must develop model policies for school districts to consider. The new law goes into effect on December 9, 2025, which is one year after its signing.
The new law comes in response to a nationwide upswing in efforts to pressure public schools and public libraries to remove access to what some find to be objectionable materials, and the related threats of litigation, and in some cases personal attacks, against school libraries, school leaders and other school staff. Across the nation, there has been a particular focus on trying to remove materials touching on themes of gender identity, racial discrimination and social justice. Titles with LGBTQ characters, themes and stories are most likely to be banned, according to a December 2023 Washington Post analysis of nearly 900 book objections nationwide.
Censorship Prohibited
The new law prohibits school districts from engaging in censorship of school library materials, and defines “censorship” as any effort to block, suppress, or remove library material based on disagreement with a viewpoint, idea, or concept, or solely because an individual finds certain content offensive.”
The district is specifically prohibited from denying students the right to reserve or check out “diverse and inclusive material,” as long as the material is developmentally appropriate. “Diverse and inclusive material” is defined as “any material that reflects any protected class as enumerated in [the New Jersey] Law Against Discrimination, … material produced by an author who is a member of a protected class … and material that contains the author’s points of view concerning contemporary problems and issue, whether international, national, or local; but excludes content that is inappropriate for grades served by the school library.” This provision means that a school district cannot ban access to library materials simply because they contain reference to specific topics, such as gender identity, sexual orientation, or race.
The law makes clear that censorship does NOT include “limiting or restricting access to any library material deemed developmentally inappropriate for certain students.” In addition, the law is not intended to “restrict a board of education’s authority to select textbooks and school supplies related to the curriculum.”
Review Committee Purpose and Composition
The new law requires a Review Committee appointed by the superintendent or superintendent’s designee to review any request for the removal of library material. The committee is required to issue final recommendations regarding the removal request, and provide a rationale for its recommendations. The committee is not required to be a permanent standing committee. Rather, it must be formed in response to receipt of a request for removal from a person with a vested interest (the definition of an individual with a vested interest is discussed below). The committee must include:
- The superintendent or superintendent’s designee;
- The principal of the school in which the library material is challenged or the principal’s designee;
- The school library media specialist or a school library staff member;
- A representative selected by the board of education (note not necessarily a sitting board of education member);
- At least one grade-appropriate teacher familiar with the library material, provided the teacher is not the individual who submitted the complaint form;
- At the discretion of the superintendent, in consultation with the relevant school principal, a student volunteer from grades 9 – 12 may be selected; and
- Any additional staff members the superintendent deems necessary.
Protection for School Library Staff Members
School Library Staff Members are specifically protected from civil and criminal liability “arising from good faith actions performed pursuant to … [The Freedom to Read Act].” The law defines a “school library staff member” as “a school library media specialist, school librarian, any certificated or non-certificated staff member assigned to duties in a school library, or any individual carrying out or assisting with the functions of a school library media specialist or school librarian.”
These new protections build on longstanding protections available that indemnify teaching staff members who are named in civil litigation, see N.J.S.A. 18A:16-6, for actions or omissions arising out of and in the course of employment, with limited exceptions. Indemnity means that the school district is required to defray legal expenses and the cost of any judgment, unless the matter involves a disciplinary action brought by the school district against the employee, OR the matter results in exemplary or punitive damages against the individual. Longstanding law also provides for indemnification in certain criminal actions, see N.J.S.A. 18A:16-6.1, where the action is dismissed or there is a final disposition in favor of the employee.
Taken together, the above statutes provide strong protections for school leaders, school library media specialists, members of the required Review Committees appointed by the Superintendent or designee, and other school staff members assisting with school library functions.
Minimum Required Policy Standard
The new law requires all school districts to adopt a policy on the curation of school library material and a policy on responding to requests for the removal of material within a school library. The policy must limit those who can formally request removal of school library material to individuals with a ‘vested interest.” “Individual with a vested interest” is limited to teaching staff members, parents or guardians of students enrolled in the district at the time of the request, and students enrolled in the district at the time of the request.
The purpose of the curation policy is to establish standards for curation, establish criteria for the removal of existing library material and provide protection against attempts at censorship.
The curation policy must include the following elements:
- (1) recognize that library material should be provided for the interest, information, and enlightenment of all students and should present diverse points of view in the collection as a whole;
- (2) acknowledge that library material shall not be removed from a school library because of the origin, background, or views of the library material or those contributing to its creation;
- (3) recognize the importance of school libraries as centers for voluntary inquiry and the dissemination of information and ideas;
- (4) promote the free expression and free access to ideas by students by prohibiting the censorship of library material;
- (5) acknowledge that a school library media specialist is professionally trained to curate and develop the school library collection that provides students with access to the widest array of developmentally appropriate library material available to schools; and
- (6) establish a procedure for a school library staff member to review library material within a school library on an ongoing basis, which shall include, but not be limited to:
-
- the library material’s relevance;
- the condition of the library material;
- the availability of duplicates;
- the availability of more recent developmentally appropriate material; and
- the continued demand for the library material.
The removal policy must include the following minimum standards:
- (1) provide for the creation of a request for removal form that must be used;
- (2) require the principal or principal’s designee to promptly forward the request to the superintendent, and then for the superintendent or superintendent’s designee to appoint a review committee;;
- (3) require that challenged library material remain within the library and available to students until there is a final decision by the board of education to the challenged material;
- (4) require the review committee to produce a report with its recommendations on whether to remove the library material and submit the report to the board of education within 60 days from the date of the next regularly scheduled board meeting after receipt of the removal form and provide a copy of the report to the objecting party;
- (5) require the board of education to make a final determination and issue a written report explaining the board decision to remove, not remove or limit access to the challenged material, with the written statement of reasons being made public on the district website within 30 days of the determination;
- (6) provide that any library material that has been challenged cannot be challenged again for one year; and
- (7) permit the school district to consolidate requests for removal of the same library material.
Limitation on Appeals
The new law specifies that any decision denying a request for removal cannot be appealed to the Commissioner of Education. However, a decision to grant a request for removal or limit access to library material may be appealed to the Commissioner. This is an important provision that means school districts will not be tied up in extended appeals to the Commissioner of Education and beyond where the district decides to not remove library materials as a result of a complaint being filed.
Moving Forward: A More Deliberate and Thoughtful Approach
Public education has the potential to expose students to new ideas and points of view, and school libraries in particular are intended to allow students to explore areas of interest that are unique to that student, and should not be unnecessarily limited by others. The Freedom to Read Act provides important safeguards for school districts that seek to ensure students have access to developmentally appropriate material, while at the same time reducing the potential for rash decisions to be made that result in improper limitations on students’ freedom to read and develop their intellectual curiosity. This, in turn, should ensure that all students continue to have access to diverse and inclusive material.
Of course, school boards retain broad discretion to determine what materials are appropriate to implement the curriculum and to determine what new materials should be secured for school libraries. But that broad discretion should not be turned into rash decision-making for improper political or discriminatory reasons, or simply because the board is not fully informed about the material that is being challenged.
The requirement for a board of education to detail the reasons for its decision and to make the decision publicly available on its website creates a strong incentive for boards of education to act in a deliberate and thoughtful manner, and be able to articulate specific reasons to justify any decision to remove or limit access to material. This, coupled with the prohibition on censorship and the requirement for the complaining person to have a vested interest, should encourage school boards to carefully consider their decisions and reduce the change for purely reactionary decisions that are not grounded in legally permissible considerations.
As noted above, school districts are not expected to implement the Freedom to Read Act until December of 2025. However, it may be prudent for school leaders and school board members to begin reviewing now the mandated elements of board policies moving forward and for school leaders and school boards to review their current policies and protocols in anticipation of the new law going into effect.