A panel of federal appeals court judges will choose what happens next for Iowa’s education law that bans books with sexual content in school libraries and prohibits instruction related to gender identity and sexual orientation for grades K-6.

In oral arguments held in a St. Paul, Minnesota, courtroom Thursday, an attorney for the State of Iowa asked the judges to lift a preliminary injunction that has blocked enforcement of SF 496 since late December.

That ruling was made in response to two separate legal challenges that argue the law silences LGBTQ students from expressing their identities and restricts students’ free access to information.

Iowa Solicitor General Eric Wessan told the three-judge panel with the Eighth Circuit Court of Appeals that the state has the ability to tell schools to remove books that show or describe sexual acts, as defined in criminal code, because “library curation is government speech.”

“The public schools are themselves representative of the state and the values that the state seeks to inculcate in children as part of its pedagogical goal of raising its future citizens,” Wessan said.

When District Court Judge Stephen Locher blocked enforcement of the law, he called it a “bulldozer” because so many books could be banned. The Des Moines Register has found nearly 1,000 different titles were removed from school libraries since the law first took effect. Those include titles by authors John Green and Jodi Picoult who are part of the lawsuit involving the publisher Penguin House, as well as well-known books like 1984, The Handmaid’s Tale and The Kite Runner.

Attorney Nathan Maxwell of Lambda Legal, which is part of a lawsuit with the ACLU of Iowa representing LGBTQ students, said the law’s definition of what is age appropriate is simply too broad.

“The problem with this law is it says if it’s not appropriate for a first grader it’s therefore not appropriate for a senior in high school. And so those seniors in high school are losing out on information,” Maxwell told reporters after the appeals court hearing. “There’s something special about a school library, which is where students go specifically to learn. Having access in school libraries is substantively different than being able to buy [a book] anywhere in the world.”

Judge questions scope of challenge

The lower court’s injunction also applies to a ban on instruction related to LGBTQ topics in kindergarten through sixth grade. The state argues both major pieces of the law should be enforced as the legal challenges proceed.

In questions he raised during oral arguments, Judge James Loken appeared to criticize the groups suing the state for bringing a facial challenge — that is, a claim that the law is entirely unconstitutional based on how it was written — instead of challenging how the law has been applied.

“This could easily have gone to a — probably a series, certainly more than one — as-applied challenge, from which, the judicial interpretation of this statute and how school boards should apply it, would become clear to educators in Iowa,” Loken said.

“I question how many it would take,” replied ACLU of Iowa attorney Thomas Story. “I can’t see any because I can’t see a way to read this law without it not making sense or not being constitutional.”

Speaking after the hearing, Story warned against guessing a judge’s position on the case based on the questioning in courtroom.

Christy Hickman, an attorney for the Iowa State Education Association, said the courts need to weigh in on the law because guidance from state education officials is limited and school districts don’t seem to agree on how it is supposed to work.

“If you look at the extreme differences across school districts and the number and types of books that have been removed, it shows you that there is a lot of confusion and ambiguity and interpretation,” Hickman said. “If we had to start all over, and start suing individual school districts, think about the court and school and public resources that go into that. I hope that is not where we end up.”

What happens if the book ban law is enforced

The law includes potential consequences for school districts or teachers who are found to have kept books on library shelves that contain sexual content.

One violation warrants a written warning from the Iowa Department of Education. But after two or more violations, the case would be referred to the Board of Educational Examiners, which certifies teachers and administrators to work in Iowa schools. The BOEE could bring up the case for disciplinary action.

The Eighth Circuit Court of Appeals must decide on the current preliminary injunction before the two cases against the education law continue.

Attorneys involved in the case would not comment on their strategy if the injunction is lifted, but Maxwell said they would continue to stand behind students and others impacted by the law.

“We will continue to fight for the students and families in Iowa to be able to access this information and to be able to speak freely about who they are in school and anywhere,” Maxwell said.