Letter to Appeal The READER Act to the Supreme Court

It has now been over a month since I requested the Office of the Attorney General appeal to theSupreme Court of the United States the Fifth Circuit Court of Appeals’ decision preventing the State of Texas from forcing book vendors to stop sending sexually explicit content to public schools. It is my understanding the deadline to appeal is July 15, 2024. If no appeal is made, book vendors will be allowed to continue sending explicit, pornographic content to Texas school children.

In the dissenting opinion from the Fifth Circuit, where eight judges voted to rehear the case, Judge James Ho stated, “Nothing in the First Amendment prevents states from taking steps to shield children from such content.” I agree. In fact, H.B. 900, The READER Act, was crafted based on multiple Supreme Court precedents relating to pervasively vulgar content and children.

• In Miller v. California a three-prong standard known as the Miller Test was modified to help in deciding whether or not obscene speech is constitutionally protected. In this 1973 case, the Supreme Court determined obscene materials are not protected by the First Amendment.

• In Federal Communications Commission v. Pacifica Foundation restrictions were created on public broadcast with the intent of protecting children from exposure to obscene content. In this 1978 case, the Supreme Court determined that preventing indecent language from certain times of the day when a child might be exposed to such content was not a violation of constitutional rights.

• In Board of Education, Island Trees Union Free School District No. 26 v. Pico books were removed from school districts for multiple reasons. In this 1982 case, the Supreme Court clarified that though books cannot be removed due to the ideas contained within them, it would be “perfectly permissible” to remove books based on “educational unsuitability”.

The READER Act centers around the main goal of these Supreme Court cases: protecting children from being exposed to obscene, explicit content. One can easily state some materials found in schools are “educationally unsuitable” as defined by Board of Education v. Pico; much of this material is obscene, which is not protected by the First Amendment as cited by Miller v. California; and clearly, Texas school children are being exposed to some material which is being prevented on radio and television broadcasts because children might be present per FCC v. Pacifica Foundation.

Last year, the Texas Legislature passed, and Governor Abbott signed into law, H.B. 900. As a result, the State Board of Education also passed the first-ever mandatory school library collection development standards. Despite these efforts by duly elected representatives of the people, some school districts have continued operating in opposition to the new state requirements.

Just last month, Fort Worth ISD returned 90 of 118 books which were reconsidered for their material, including radically explicit titles like Gender Queer and All Boys Aren’t Blue, two of the most pervasively vulgar and educationally unsuitable examples for any grade level. Research on these titles and others shows they contain graphic descriptions of sexual acts and include illustrations sex between minors or between minors and adults.

This issue is not isolated to Fort Worth ISD. These sexually explicit materials are present across the state. During the last session, my team was able to identify materials violating H.B. 900 in at least one school district represented by each Member of the House Public Education Committee, demonstrating that both cities and rural communities are provided sexually explicit material for distribution to children by book vendors. Without the vendor enforcement mechanism in H.B. 900, vendors will continue sending sexually explicit content to public schools throughout the state where some public school administrators seem intent on distributing the content to minors.

The READER Act received overwhelming bipartisan support during the last legislative session. Now, legislators are unable to act on new regulatory framework until the 89th Legislative Session in 2025. Until then, we must continue to fight through your office and appeal this case to the Supreme Court of the United States. We have no alternative. You must act before July 15th to protect the innocence of Texas school children and to hold these book vendors accountable.