Librarians across Arkansas are preparing in different ways for a new state law that is set to take effect next week and changes how libraries handle controversial material.
Some library systems have altered their existing material reconsideration forms in hopes of handling future book challenges smoothly and in compliance with the law.
Others have come to what they believe are reasonable conclusions about which local authorities will choose whether children can access certain books.
“One size does not fit all with public libraries, and that was not given consideration when this bill was put together,” said Judy Calhoun, regional director of the Southeast Arkansas Regional Library system, which covers Bradley, Chicot, Desha, Drew and Lincoln counties.
While library systems take steps to carry out the law, many librarians will be watching the outcome of a federal court hearing on Tuesday over a lawsuit that asks a judge to prevent Act 372 of 2023 from taking effect.
The law requires a committee of library staff selected by head librarians to review a challenged book or other material on the basis of their “appropriateness” for children and to vote publicly on whether to keep the material where it is currently shelved or relocate it to an area of the library that minors cannot access.
If a challenger disagrees with the library committee’s decision, city or county elected officials will have the final say on where material is placed.
All public library systems in Arkansas have existing material reconsideration policies and procedures that need to be altered to comply with Act 372. The existing policies have rarely been used throughout the state, and people who challenge books often want them to be removed rather than relocated.
Librarians statewide have expressed concerns that Act 372 will be used to discriminate against specific groups, such as LGBTQ+ people, but they have also said parts of the law are unclear and left to interpretation.
During the legislative session earlier this year, the sponsors of Act 372 repeatedly claimed that the policy would be straightforward.
Calhoun and several other library directors, including Nate Coulter of the Central Arkansas Library System, spoke against the bill before legislative committees.
Coulter and CALS are now two of 18 plaintiffs in the federal lawsuit challenging portions of Act 372. The lawsuit not only alleges viewpoint discrimination but also claims the law gives “unfettered discretion to quorum courts and city councils to decide whether materials are ‘appropriate’ without any definite procedural safeguards or standards.”
U.S. District Judge Timothy Brooks will conduct a hearing in the case Tuesday morning in Fayetteville. Some library systems have board meetings scheduled for later in the week, so their policy changes are not final, and the boards’ decisions might hinge on a decision from Brooks, library directors said.
Act 372 has brought statewide attention to the debate over whether anyone under 18 should be able to access content pertaining to racism, sexual activity and LGBTQ+ identities. Supporters of the law say this content amounts to “indoctrination” and is fundamentally inappropriate for children. Opponents contend the content reflects the community and that restricting access is censorship.
The legislation did not pass the House Judiciary Committee until it had been amended to say books would be relocated, not removed, if elected officials find them to be “obscene.”
Library directors and staff have repeatedly said libraries do not have segregated sections that children cannot access. Coulter said in May, when the CALS board authorized the lawsuit, that relocating books under Act 372 would be “totally impractical to enforce,” even in one of the state’s largest library systems.
Additionally, regional, multi-county library systems allow patrons in one county to check out books in another county, so a quorum court decision to relocate a book in Faulkner County would not keep the book away from minors in Van Buren County, said John McGraw, the executive director of the library system covering those two counties.
“Even if I had a vault I could stick these things into — which I don’t, and I don’t know how I would do that — there’s nothing that prevents those materials from going to another county through the courier system,” McGraw said.
The Crawford County Library System moved children’s books with LGBTQ+ topics to a segregated “social section” at all five branches in December 2022. The library director at the time said relocating the books was a “compromise” after community members objected to their availability at multiple quorum court meetings.
Crawford County officials have cited Act 372 as a reason to keep the books segregated, so the county and its county judge, Chris Keith, are defendants along with the state in the CALS-led lawsuit against Act 372.
Additionally, three parents in the county filed a First Amendment lawsuit in May against Keith, the quorum court, the library board and the interim library director for segregating the books, alleging “unlawful censorship” based on an “extreme and malevolent view of the Bible.”
A range of policy changes
Act 372 states that a book challenged under the law “shall be reviewed in its entirety and shall not have selected portions taken out of context.”
In May, the Saline County Library board of trustees updated the system’s challenge policy to align with this portion of the law by requiring people to “read, view, or listen to the entirety of the work” before filing a reconsideration request.
Meanwhile, Washington County Library System director Glenda Audrain said she and some library staff have preemptively reserved a block of time at the county courthouse once a month to handle book challenges, since they have to be heard in a public meeting.
Earlier this year, Audrain wondered if the library system would have to buy more copies of challenged books for quorum court members to read if an appeal against the book reached the court.
“It’d be sad to buy books that are possibly going to be hidden, or that there might not be that much demand for, since we have 15 quorum court members and eight libraries,” she said.
The law does not require libraries to provide elected officials with copies of challenged books, McGraw said, but it also does not require officials to read the books. The text of the law simply says officials “shall review the information submitted to them” by the library committee.
“They don’t even have to look at the cover,” McGraw said.
The Faulkner-Van Buren Regional Library plans to incorporate legal precedent into its updated challenge process, since obscenity is a judicial term repeatedly referenced in Act 372 and brought up by those who want certain books to be relocated, McGraw said.
Obscene material is not protected by the First Amendment, according to Miller v. California, a 1973 U.S. Supreme Court ruling that created the three-step “Miller test” for obscenity.
An item must meet all three criteria to be considered legally obscene:
- If the entire work “appeals to the prurient interest” based on “contemporary community standards,” as judged by the average person;
- If it depicts or describes sexual behavior “in a patently offensive way”;
- If the entire work “lacks serious literary, artistic, political, or scientific value.”
McGraw provided the Arkansas Advocate with a draft reconsideration policy that specifically includes these criteria and also requires challengers to read the entire work. The Faulkner-Van Buren Regional Library board is expected to vote on the policy this week.
“During this whole conversation, there’s been this blurring of the lines over what counts as obscenity… but there are no obscene books in the library,” McGraw said.
Workload and jurisdiction concerns
Library board members have historically been in charge of handling book challenges, but Act 372 requires library staff to handle them.
This could put an unprecedented amount of work on librarians since they still have to do their regular jobs, the five members of Faulkner County’s library board agreed at their April meeting. Van Buren County has its own library board, and each board sends representatives to a regional board overseeing the system.
McGraw said he and board members are bracing for an influx of book challenges if Act 372 goes into effect. The Faulkner County board agreed in May to remove the first five books in the queue of challenges from library circulation until the reconsideration process is complete.
Act 372 states that the elected officials of whichever entity provides the most funding to the library system are in charge of hearing appealed challenges.
However, the five counties in the Southeast Arkansas Regional Library system provide roughly equal funding across the board, Calhoun said.
She said she interprets Act 372 to mean a county quorum court’s decision to relocate a book only applies to the libraries in that county and that the same book does not need to be relocated in another county unless the quorum court says so.
Mike Rogers, director of the Northeast Arkansas Regional Library in Clay, Randolph and Greene counties, said he interprets the law the same way.
One size does not fit all with public libraries, and that was not given consideration when this bill was put together.– Judy Calhoun, executive director of the five-county Southeast Arkansas Regional Library
The funding clause of Act 372 will require the Jonesboro city council to hear appeals in the Craighead County Jonesboro Public Library system, which is funded by tax millage from both the city and the county, library director Vanessa Adams said.
Craighead County and Jonesboro voters cut the library system’s funding in half in 2022 after protests over an LGBTQ+ book display and a transgender author’s visit to the library within the previous couple of years.
Adams has expressed frustration with both the funding cuts and the new law, the latter of which takes the placement of books “out of the library’s hands and puts the decision into the hands of elected officials, ignoring our expertise as trained experts,” she said in an email last week.
CALS covers Pulaski and Perry counties and is funded by tax millage in both counties, as well as the cities of Little Rock and Maumelle.
Taxes from Little Rock provide the majority of CALS’ funding, Coulter said, so the Little Rock Board of Directors would handle appealed challenges from all 14 library branches: nine in the city, four elsewhere in Pulaski County and one in Perry County.
This is an unusual amount of authority for a governmental body whose decisions usually apply only to the city of Little Rock, Coulter said.
“Obviously nobody envisioned, when [local governments] agreed to the ordinance to be part of the system, that the Legislature would come along years and years later and that one particular governmental entity would have some jurisdiction over the entire system,” he said.
He added that Act 372 was born from some groups’ dissatisfaction that the existing challenge process, which he said is “very thoughtfully and professionally done,” has rarely led to books being relocated or removed from libraries.
“The idea that this law creates something that libraries weren’t doing before is wrong and inaccurate,” Coulter said. “It’s actually [about] people not being happy with the outcomes of those processes and wanting a different arbiter of the outcome.”