The war against LGBTQ+ rights has once more darkened Iowa’s doorstep, and the battle for a student’s “Right to Learn” has spread from Critical Race Theory (“CRT”) to any topic regarding LGBTQ+ issues in the classroom. Conservatives in the Iowa Legislature and Governor Kim Reynolds have followed suit with Florida’s trend of attempting to prohibit the free discussion of LGBTQ+ topics in schools with SF 496, also known as the “Don’t Say Gay or Trans” bill.[1] In response to this, a group of LGBTQ+ students from public schools across Iowa have filed a complaint in the United States District Court of the Southern District of Iowa for declaratory and injunctive relief, which would effectively stop the bill from continuing its effect on schools and students.[2] SF 496 can be described as a companion or mirror of Iowa’s ban on critical race theory, passed a few years ago.[3] The University of Iowa College of Law’s Journal of Gender Race and Justice Volume 27.1 features an article by John Beaty that reflects upon the legislature’s attempt to regulate academic speech regarding CRT through the same “Right to Learn” theory posited by the opponents of SF 496. Beaty’s lens through which he interpreted Iowa’s recent CRT ban and the right to learn can help us better understand what First Amendment rights could be at stake, should SF 496 continue to be in effect. It is worth noting that Judge Locher of the Southern District of Iowa granted a temporary injunction on most of the bill’s provisions relevant to the “right to learn,” enjoining the State from enforcing the terms until a final ruling has been made on the matter.[4]

Beaty, in his discussion of Iowa’s recent CRT classroom ban, outlines the First Amendment “Right to Learn” as having “some form of a ‘right to receive information and ideas.’”[5] However, Beaty argues that the jurisprudence surrounding the right is severely underdeveloped and in need of further clarification. The plaintiffs in GLBT Youth in Iowa Schools Task Force v. Reynolds are a group of LBGTQ+ students and their families in combination with the advocacy group Iowa Safe Schools.[6] The plaintiff’s complaint contains several arguments that Beaty outlined in his “right to learn” framework.[7]

The plaintiffs first posit that SF 496’s ban on instruction relating to sexual orientation or gender identity for grades K-6 and the mandate of “age-appropriate” education for all grades, which prohibits “descriptions or visual depictions” of a “sex act” outside of health classes violate the First Amendment rights of speech and expression and the Fourteenth Amendment Due Process Clause.[8] Much of Beaty’s analysis follows the same framework. First, both SF 496 and the CRT ban discriminate against speech based on its content and viewpoint, which is in plain violation of the First Amendment.[9] Both SF 496 and the CRT ban include restrictions that can be generously characterized as overly broad.[10] In discussing the CRT ban, Beaty argues that this kind of statutory language invites arbitrary enforcement because “the meaning and scope of CRT are heavily dependent on the political views of the person viewing it.”[11] The same reasoning follows why the provisions in SF 496 mandating “age-appropriate” curriculum and forbidding instruction on sexual orientation or gender identity are unconstitutionally vague.[12] Judge Locher used the same rationale when granting the preliminary injunction in regard to the classroom instruction provision.[13]

SF 496 also mandates the removal of all books with descriptions of sex acts, except for certain religious texts—such as the Bible—and installs an anonymous complaint system that parents can use to request removal of specific material.[14] By banning these materials, the plaintiffs claim that they are also removing “messages of inclusion, affirmation, and support with respect to students’ LGBTQ+ sexual orientation and gender identity” from vital environment for students’ development.[15] The complaint follows Beaty’s illustration of the right to learn, claiming that when library materials are removed for a non-pedagogical purpose—and instead because conservative parents and politicians find them offensive—it violates a student’s right to receive information.[16] As Beaty found in the case of the CRT ban, this provision in SF 496 could contradict the Supreme Court’s finding in Board of Education v. Pico, where a plurality opinion posited that a book ban mirroring the one in SF 496 violated the students’ “right to receive information and ideas.”[17] This ruling, while encouraging to the plaintiffs, was also the last time the Supreme Court contributed to the “right to learn” doctrine. The subject has remained untouched by the highest court in the land for the last 40 years, despite inconsistent application in the lower courts.[18] Judge Locher, in granting this part of the injunction, seemed to follow Pico’s precedent[19] while relying on further clarification from Pratt v. Independent School District No. 831, Forest Lake, Minnesota to firmly instruct that “Student Plaintiffs have a First Amendment right not to have books and materials removed from the school library based on ideological, religious, or other grounds designed to . . . . impose a ‘pall of orthodoxy’ over the classroom.”[20] 

It is likely that the religious grounds for which books are being removed differentiates the current case from Beaty’s analysis of the CRT ban. The plaintiffs in the case claim that SF 496 violates the Federal Equal Access Act[21] by denying equal access or fair opportunities to LGBTQ+ student groups. The plaintiffs claim that SF 496 is a violation of the federal law both facially and as applied because it discriminates against these student organizations on the basis of the religious, political, or philosophical content of their meetings. According to Beaty, implicit in the right to learn there is also a constitutional right to a secular curriculum.[22] While Beaty did not find this right implicated by the Iowa CRT ban he was analyzing at the time, it could provide an avenue forward for the plaintiffs should their other claims fail. The right to secular instruction is founded in the Supreme Court’s ruling in Epperson v. Arkansas, where a court invalidated a state statute prohibiting the teaching of evolution due to its violation of the First Amendment’s Establishment Clause.[23] SF 496’s clear bias against LGBTQ+ materials in school libraries while favoring the Bible implicates the need to examine the bill’s validity in the face of both a student’s right to receive information and ideas and a student’s right to receive secular instruction.

Perhaps one of the most consequential points of Beaty’s proposed expansion of the right to learn is the need to address the blind spot that legislation like the CRT ban and “Don’t Say Gay or Trans” bills exploit.[24] This blind spot is that—while students’ right to receive information and free speech has been addressed by the Supreme Court—teachers and administrators have been left with few speech rights.[25] Beaty argues because teachers’ speech is unprotected in the classroom, it may be time to expand the right to learn to address this blind spot.[26] The battle resulting from SF 496’s oppressive terms rings true Beaty’s prediction that legislators will continually attempt to “impose their political orthodoxy on the classroom.”[27] To stay true to the lofty ideals of the First Amendment, the right to learn must be further expanded to protect students and their right to an education unencumbered by the ideological meddling of policymakers.