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November 18, 2024

 

Montgomery County Commissioners Court 501 North Thompson, Fourth Floor Conroe, Texas 77301

Delivered via email

 

Dear Judge Keough and Montgomery County Commissioners Walker, Riley, Noack, and Gray,

 

We are reaching out with concerns and recommendations about the Montgomery County Commissioners’ planned revisions to the Reconsideration of Library Materials Policy, as indicated by the Court’s discussion and vote on October 22, 2024.

We appreciate that the Commissioners acted swiftly to reverse the Reconsideration Committee’s grievous mistake to wrongly reclassify Colonization and the Wampanoag Story by Linda Coombs from juvenile nonfiction to juvenile fiction. Because these actions demonstrated your willingness to respond to community concerns, we write with our recommendations to ensure that the planned policy revisions help prevent future mistakes. Our hope is to strengthen, rather than undermine, protections for the rights of all Montgomery County’s public library patrons and citizens.

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Public libraries are “place[s] dedicated to quiet, to knowledge, and to beauty.” Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 868 (1982) (quoting Brown v. Louisiana, 383 U.S. 131, 142 (1966) (opinion of Fortas, J.)). They act as guardians of some of our most cherished civil liberties because they provide “access to ideas” which “makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner . . . [and] prepares [children] for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members.” Id.

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The Supreme Court held over 40 years ago that the government violates the First Amendment when it “remove[s] books from . . . library shelves simply because [it] dislike[s] the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’” Id. at 872 (quoting W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)). Indeed, the First Amendment “protects the right to receive information and ideas,” including for children, and prohibits the government from withholding access to those ideas for viewpoint-discriminatory reasons. Id. at 867 (quoting Stanley v. Georgia, 394 U.S. 557, 564 (1969)). We believe parents have a right to guide—and even limit—their own children’s reading selections in the public library and that the government, or other parents, have no authority to interfere with those decisions.1

 

We also believe it is possible to honor and protect the First Amendment rights of library patrons— young and old—while ensuring that parents are empowered to make decisions for their own children and that the broader Montgomery County community has clear oversight into its government’s decisions. Please consider the following recommendations, which we believe could improve and strengthen the Montgomery County Memorial Public Library’s Reconsideration of Library Materials Policy.

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Do not restrict access to challenged books while reviews are pending.

 

Restricting access to books while they undergo reconsideration may violate the First Amendment rights of Montgomery County’s public library patrons. Allowing such restrictions would permit any challenger—even if they have unconstitutional, viewpoint-discriminatory motivations—to create a book ban during the reconsideration. While ostensibly temporary, these bans could cause significant impediments to access to library materials and infringe on patrons’ rights to access information. For example, the book The Real Riley Mayes, by Rachel Elliot has been sitting on the adult only, “Restricted/Under Review Status” shelf since it was challenged in July of 2024, following a tie vote by the reconsideration committee.2

 

Restore librarian participation in and oversight of the reconsideration process.

 

The County previously delegated decision-making authority to the professional librarians it employs. Upon revision of the Reconsideration of Library Materials Policy in March of 2024, librarians were removed from the majority of reconsideration committees. As evidenced by the Colonization and the Wampanoag Story incident, it would be to the benefit of all Montgomery County citizens, and the Court, to return professional librarians to the reconsideration process—if not in an oversight capacity, then in a mandatory advisory one. Professional librarians are uniquely qualified and extensively trained to understand and consider the ethical, practical, and academic impact of decisions to retain, restrict, reclassify, and remove library materials. Librarians are essential to the advancement of literacy and libraries and are deeply invested in protecting and ensuring the intellectual freedom rights of every person—not just certain people—they serve.

 

Increase the transparency and public oversight of the challenge and reconsideration process.

 

The current reconsideration policy bestows the Citizens Review Committee “the sole authority for the review of materials contained within the children’s, young adult, and/or parenting sections” and declares that “any decisions made by the Citizens Review Committee shall be final.”3 Specifically, it gives the Citizens Review Committee the power to respond to book reconsideration challenges by retaining the book in its original location, “reassign[ing] the material to a more restrictive portion of the library,” or, if the Committee deems the book “harmful material,” instructing the Library Director to remove the book from circulation within the entire library system.4 The County Commissioners must simply review a list of “all material removed”—but not material restricted— “under this policy” once per year.5 Finally, “[m]eetings of the Citizens Review Committee are closed to the public except for the Resident who made [the] formal request for review.”6 These features of the current policy raise serious concerns that the County is making reconsideration decisions in violation of the Texas Open Meetings Act.

 

The Open Meetings Act requires, with very limited exceptions, that meetings of governmental bodies be open to the public and that any “final action, decision, or vote on a matter” be made in an open meeting for which the public has been notified and has an opportunity to make public comment.7 The decisions of the Citizens Review Committee are not insulated from the Act’s requirements because “if a governmental body that has established an advisory committee routinely adopts or ‘rubber stamps’ the advisory committee’s recommendations, the committee probably will be considered to be a governmental body subject to the Act.”8 Here, the policy makes clear that the Committee’s decisions are indeed “rubber stamped” by the County Commissioners—the Committee has the “sole authority” to make “final decisions” that are immediately implemented, and only a small subset of those decisions are subject to annual, routine review by the Commissioners. Therefore, the Committee’s meetings and decisions should likely be subject to the Act’s requirements of public notice, access, and comment.

 

Alternatively, we recommend that the Committee be stripped of its sole authority to make final decisions and instead be tasked with making recommendations to the County Commissioners. The recommendations made by the Committee—as with other citizens advisory committees who serve under the authority of the Court—should be presented to the Commissioners for formal consideration, subject to the Open Meetings Act. At that time, the Court should solicit additional feedback and input from the public, librarians, and legal experts before ultimately accepting, modifying, or rejecting recommendations made by the Committee in a transparent, public setting.

 

With those concerns in mind, we make the following recommendations to increase the transparency and public oversight of the challenge and reconsideration process. First, requests for Reconsideration (titles, author & complaints), review committee meetings, meeting minutes, and outcomes should be easily accessible to the public on the County’s library website. These items are all subject to public information requests, and if the County and Committee are operating in good-faith, it should not require filing public records requests for concerned citizens to understand what books in their public library are being challenged and/or recommended for restriction or removal—and why.

 

Second, as with other Commissioner-appointed citizens committees, we recommend listing the names of the citizens appointed to the Library Reconsideration Committee, and their term limits, on the County website. The names of these Committee members are public record, and the public should not have to dig through meeting minutes and file public information requests to know who is representing them on the library board.

 

Finally, the County Commissioners should develop a clear pathway for Montgomery County citizens to oppose the recommendations made by the Committee and/or the decisions of the Commissioners. Residents who disagree with a decision to remove or retain a library book should be allowed an avenue to bring their concerns forward for consideration.

 

Conclusion

 

Five politically appointed individuals with varying degrees of literary, library science, parenting, and constitutional expertise and qualifications should not have limitless authority to make decisions that potentially implicate the First Amendment rights of all the public library patrons of Montgomery County. The Commissioners Court holds ultimate liability and responsibility for decisions made by the Reconsideration Committee, so the final decisions about recommendations made by the Committee should rest with the Judge and Commissioners—not members of the public who are under no obligation to make decisions in good faith.

 

Thank you for considering our requests to stop restricting access to books while Reconsideration Committee decisions are pending, to include librarians in the review process, and to increase opportunities for public input, oversight, transparency, and appeal in the reconsideration process.

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Respectfully,

 

Village Books

The ACLU of Texas

Texas Freedom to Read Project

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1 We also recognize that the Commissioners Court’s revisions to the Reconsideration of Library Materials Policy over the past two years have been driven by concerns of citizens who claim they want to protect children from “harmful materials.” But bare accusations that a book is “harmful to minors” or “obscene” are not sufficient to ban or restrict access to that book. Under federal and state law, these are legal terms of art, which require an analysis of a book “taken as a whole” —not just out-of-context excerpts. See Miller v. California, 413 U.S. 15, 24 (1973); Ginsberg v. State of N.Y., 390 U.S. 629, 633 (1968); Texas Penal Code Sec. 43.21; Texas Penal Code Sec. 43.24. Further, a book is not obscene if, taken as a whole, it has “serious literary, artistic, political, and scientific value.” Similarly, a book can only be deemed harmful to minors if it, taken as a whole, is “utterly without redeeming social value for minors.” Any book reconsideration or collection development policy relying on these standards should explain and emphasize these legal definitions in full to prevent against impermissible censorship. See Texas Penal Code Sec. 43.21; Texas Penal Code Sec. 43.24.

2 A policy that restricts access to books, even if it doesn’t completely ban them, can violate the First Amendment if the restrictions are motivated by unconstitutional viewpoint discrimination. “Even where a regulation does not silence speech altogether, the Supreme Court has given ‘the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.’” Sund v. City of Wichita Falls, Tex., 121 F. Supp. 2d 530, 549-50 (N.D. Tex. 2000) (quoting Turner Broadcasting, Inc. v. FCC, 512 U.S. 622, 641 (1994)).

3 See Reconsideration of Library Materials Policy, Montogomery County Commissioners Court (Mar. 26, 2024),

https://destinyhosted.com/agenda_publish.cfm?id=66684&mt=ALL&vl=true&get_month=3&get_year=202 4&dsp=agm&seq=24299&rev=0&ag=1488&ln=77510&nseq=&nrev=&pseq=&prev=&vl=true#ReturnTo775 10 (emphasis added).

4 Id.

5 Id. (emphasis added).

6 Id.

7 Tex. Gov’t Code §§ 551.002; § 551.007; 551.102.

8 The Office of the Attorney General of Texas, Open Meetings Act Handbook 2024, https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/open-government/openmeetings_hb

.pdf.

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