Attorney Defends SC's Proposed Book Ban Regulations
Last week, the SC State Board of Education met for a first reading of “R.43-170. Uniform Procedure for Selection or Reconsideration of Instructional Materials”. (You can view the video of the afternoon meeting here). During the afternoon meeting, where the full board met, the room was packed. Public comments were restricted to three minutes (from the usual five) and equal time was given to speakers for and against the proposed regulation.
It seems like the regulation was written by Miles Coleman, a Greenville attorney with Nelson Mullin. Coleman is also the President of the Columbia, SC, Lawyers Chapter of the conservative Federalist Society, and the Secretary of an organization called School Ministries, which advocates for “released time Bible instruction,” where public school students are given time during the school day to receive religious instruction for school credit. Coleman was functioning as the organization’s legal counsel at least as recently as 2021, according to the group’s website.
He also donated $1,000 to Weaver’s election campaign. His law firm and at least one other attorney employed there donated a total of $250.
Coleman’s background is relevant, because he has aligned himself with groups that are trying to push the door between church and state further open, and which do have ideological positions they want to introduce to children; as with his comments on the censorship regulations, Coleman’s focus seems to be on making sure these moves are at least technically not in violation of the Constitution. In helping write and/ or defend Weaver’s book banning regulations, he is carrying out the wishes of Moms for Liberty and other extreme proponents of the “parental right” to use government regulations to tell every other parent and child in the state what to do.
In both the morning Policy Committee session and the afternoon full board meeting, Coleman struck me as defensive about criticisms and characterization of the draft from the public comment. He had clearly prepared for some very specific criticisms: He was so prepared, in fact, that he often responded to arguments no one in the room had yet made, bringing up a number of court precedents that suggest routes for legal challenges to the regulations, and bringing up potentially banned texts which hadn’t come up yet. It was an interesting rhetorical strategy.
I left while Coleman was launching into an identical preamble about his qualifications during the afternoon meeting that he had shared during the morning session, but did go back and watch his remarks when they were released on video.
Coleman’s introduction (if not his full argument) was centered around four concerns he claimed drove the drafting of the regulations:
First, he claimed they were “pedagogically appropriate,” but he didn’t really explain why this was true. After all, librarians and teachers are actually trained in selecting materials, specifically for the purpose of pedagogy. Pedagogy is what librarians and teachers do.
Next, he said they were “scientifically and medically supportable”. Coleman really didn’t justify this one, either. Board member Richard Harrington even set him up with what seemed like leading question about whether there were scientific standards of “age appropriateness,” but Coleman essentially said the science was ever-evolving and could provide guidance but not objective criteria. On the other hand, “medically supportable” seems to be a dog whistle for the anti-transgender activists who have been driving much of the narrative of the “parental right” for an individual to select texts for every child in the state.
Then, he claimed, without much development, that they were “logistically feasible”. Again, board members, including Alan Walters, asked questions about how this would all work in practice. Would the State Board have to carry out hearings for every book challenge, as some districts are doing now? What would these look like? Coleman had few concrete answers here, saying essentially that the Board already has procedures for carrying out hearings. But the State Board’s role has never been expanded to the degree that it would need to be expanded in order to potentially hear the kinds of challenges every month that local school boards have been hearing over the past several years. For comparison, it sometimes takes many months for the Board to process appeals on educator certificate challenges, and those are presumably rarer than what we can expect in a state where individuals have already challenged up to a hundred books at a time in more than one district.
But mostly, he spent a lot of time arguing that the proposed regs were “legally defensible”. This took up the bulk of his lengthy remarks, which begs the question: why does the legislation need so much legal defense? Setting aside the Constitutional issues (many brought up by Coleman himself), just because a policy may be legal, that doesn’t mean it makes sense. Few South Carolinians, after all, are asking for the State Board to get so intimately involved in district decisions about books: in a recent statewide Winthrop poll, the majority of respondents in the state didn’t support government censorship of content labeled as “Critical Race Theory,” for example.
Near the beginning of his remarks, Coleman also claimed (in both the morning and afternoon sessions) that, “many, many hours of careful thought” went into the creation of the regulations.
This is frankly difficult to believe. The document is riddled with basic spelling errors and inconsistencies, more errors than the average pre-filed bill. Sometimes the term “Instruction Materials” is used; sometimes it is “Instructional Materials”. The word “select” is misspelled at least once. Basic subject-verb agreement errors are rampant.
This suggests a rushed process pushed for political, rather than logistical, reasons. And as board member and former House Education and Public Works Chair Rita Allison pointed out, the state’s censorship bill, H. 3728, is still awaiting a conference committee hearing; usually, this kind of regulation would follow a state law, and not the other way around. Perhaps Superintendent Weaver just likes to have her name in the news.
Coleman also did not name a single education or librarian group who had been consulted, and during the lead-up to the meeting, Superintendent Weaver had publicly and loudly divorced the Department of Education from the state librarians group. Later, under questioning from board member Beverly Frierson, Coleman even said, “There was no formal process for seeking or soliciting comment, there was no need to. The comments came in all on their own, they were informal conversations.”
Coleman mentioned that his wife was an educator, and I can’t help imagining him quickly running his thoughts by her, maybe chatting with the librarian at his local library, or having a conversation with a student in a local grocery store, and calling it a day. (Significantly, though the regulation concerns school and classroom libraries, the word librarian is never used in the draft regulation.)
Much of Coleman’s remaining time was spent addressing a talking point that kept coming up throughout the day: that because of how broadly the regulations define content that is not “age appropriate,” there is a real danger that many works will be challenged or banned that go far beyond the supposed intent to remove “pornographic” materials. Coleman claimed the regulations won’t ban texts like Shakespearean drama, or The Bible, because although he acknowledged that they contain “sexual content,” they are somehow not explicit enough.
“I too have read the Bible,” Coleman said in response to a warning, from ACLU’s Paul Bowers during the afternoon public comment session, that the Bible contained content which potentially violated the regulations, as written. Coleman claimed, “It does not contain any visual or verbal depictions that would satisfy the requirements of that code section listed there,” and gave an example from The Song of Solomon (one comparing a beloved’s breasts to “clusters of grapes”) that is not nearly as explicit as some of the other sections of the Bible.
I have no doubt, given his position with School Ministries, that Coleman has read the Bible, and that he wants public school students to have time to read the Bible. But the regulation Coleman was defending defines “sexual content” using the definition in state law, and explicitly states that no “Instruction Material” can be considered age appropriate if it contains “sexual content”. South Carolina law1 defines “sexual content” to include, among other things, “excretory functions,” “fondling… the female breast nipple,” and other content which isn’t necessarily pornographic or obscene, but which is contained in the Bible (see links for examples). Whether it is Coleman’s intent to ban the Bible or Shakespeare or whatever, the poorly-written regulation risks doing that.
To put it concisely, it’s already illegal under state law to give pornography to children. If this were truly about keeping that from happening, there would be no need for the regulation. If the regulation were intended to add clarity to the process, it would narrow the targets of book-banners instead of broadening them. Instead, the regulation, as written, serves to make it easier to challenge and potentially ban non-pornographic books from schools, and it would be nice if defenders would either simply acknowledge that they meant to do that, or move to amend the regulation so that it doesn’t do that.
Coleman, similarly, claimed that Shakespeare can’t be banned either, though he acknowledged that the Bard’s works contain humor that is sometimes “moderately, mildly off color innuendo”. Again, some Shakespearean plays contain content more explicit than Coleman suggests, but I’ll leave it to others to find those passages. (Some folks in Florida already did; the Florida Department of Education responded by restricting Shakespeare instruction— including the commonly-assigned Romeo and Juliet— to pre-chosen passages to avoid the offending content. It should be noted that Florida’s “Don’t Say Gay” law actually contains a more narrow definition of age-inappropriate material than the proposed South Carolina regulations.)
As I tried to point out in the morning session, The Bible, Shakespeare, Mark Twain, To Kill a Mockingbird, and many other “classics” have already been challenged or even removed from schools and libraries in other states. (See this spreadsheet for specific examples.)
While Coleman took the committee through the first part of the “age appropriate” section, dismissing and at times smugly handwaving concerns of taxpayers who showed up for public comment, he also did not address the language prohibiting any content “which could not be portrayed or read aloud on broadcast television, or radio, during daytime hours.”
A very large number of “classic” texts contain words or content that could result in a statewide ban, if challenged in a school district and then appealed to the state board. I’m tempted to list many of them here (and am happy to share a list, which I have, with interested parties who might want to reach out one-on-one), but I don’t particularly want to give book banners any more ideas. So I’ll just share a passage from The Fountainhead, a book which was relatively popular as an assigned text for high school for a while, and which is still beloved in many conservative/ libertarian circles:
(Content warning: sexual assault.)
She tried to tear herself away from him. The effort broke against his arms that had not felt it. Her fists beat against his shoulders, against his face. He moved one hand, took her two wrists and pinned them behind her, under his arm, wrenching her shoulder blades.…She fell back against the dressing table, she stood crouching, her hands clasping the edge behind her, her eyes wide, colorless, shapeless in terror. He was laughing. There was the movement of laughter on his face, but no sound.…Then he approached. He lifted her without effort. She let her teeth sink into his hand and felt blood on the tip of her tongue. He pulled her head back and he forced her mouth open against his.
Another, even more graphic sequence in the novel:
He had thrown her down on the bed and she felt the blood beating in her throat, in her eyes, the hatred, the helpless terror in her blood. She felt the hatred… She fought in a last convulsion. Then the sudden pain shot up, through her body, to her throat, and she screamed. Then she lay still.
It was an act that could be performed in tenderness, as a seal of love, or in contempt, as a symbol of humiliation and conquest. It could be the act of a lover or the act of a soldier violating an enemy woman. He did it as an act of scorn. Not as love, but as defilement. And this made her lie still and submit. One gesture of tenderness from him- and she would have remained cold, untouched by the thing done to her body. But the act of a master taking shameful, contemptuous possession of her was the kind of rapture she had wanted….
Later, the character says, “He didn’t ask my consent. He raped me. That’s how it began.”
I wouldn’t teach The Fountainhead— mostly because I don’t believe in torturing children with polemics disguised as novels, in which characters speak in essays and act out dumb philosophical ideas in the most blunt and artless ways— but I don’t think it needs to be banned, despite these deeply offensive scenes. Should we provide content warnings about the sexual assault, or skip over these scenes if we read it in class? I would. And I certainly would never make a student read this book— or any book— if it made them uncomfortable beyond the productive discomfort of learning new things and engaging with different perspectives. (The Fountainhead is, incidentally, currently available in a library in a district that has already seen a bunch of challenges to far less offensive texts. Maybe they haven’t read it, because it’s long and doesn’t appear on BookLooks yet.)
And South Carolina’s proposed regulations arguably go further than Florida’s, Utah’s, or Texas’ regulations (all states where the Bible, for example, has been challenged and/ or removed). As written, the SC regulations don’t allow for context, artistic merit, or any mitigating factor; if a text contains “sexual content” it is not appropriate for any age of student, and as examples from these other states show, even if it actually did allow for that context, would-be book banners would likely challenge lots of works they don’t like anyway, and districts and the State Board would have to go through the mandated review process for each one.
While SC law does define pornographic and obscene material in a way that doesn’t implicate all sexual content2, the regulation doesn’t do that, and at one point Coleman explicitly pointed out that adopting a definition from a law doesn’t adopt other parts of the law. The parts of the statute that defines “sexual content” which limit which materials are considered obscene is NOT part of the regulation, so in effect the regulation uses a broader definition of what is not “age appropriate” than the law does of what is “obscene”. Coleman also said he wasn’t aware of courts which had found the materials “vulgar or obscene,” but courts won’t be reviewing these complaints; school districts and the State Board will. And school districts, including in Utah, Texas, and Florida, have removed the Bible and other listed works for being obscene. And though Coleman pushed back on the idea that The Handmaid’s Tale could be banned for “sexual content,” individuals in South Carolina have already challenged the book for obscenity.
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In response to the reasonable argument that the regulations would give the state powers that have traditionally been the purview of local elected school boards, Coleman had this to say: “public school districts are political subdivisions. They do not have political sovereignty.” But this argument never seems to go both ways. Is the state going to get involved in fully funding libraries, for example? (The state of South Carolina currently provides about the same amount of money to most districts which counties provide from local revenue. State funds are generally not being used to purchase most of the non-textbook “Instruction Materials” the regulation will allow to be challenged.)
Mostly, Coleman tried to minimize the concerns of those opposing the regulations instead of providing any kind of real-world roadmap for how any of this would work. He said, “Of the millions of books and other other instructional materials in the world, Subsection B will probably remove only a vanishingly small number of them, and there’s going to be millions left still.” The argument seems to be that banning books is okay, as long as you don’t ban a lot of books. But, again, we have only to look at other states— and at districts like Beaufort Schools in South Carolina, where a single individual challenged almost 100 books— to see the danger of handing the power to challenge books for the whole state over to groups like Moms for Liberty (who were vocal and visible during both the morning and afternoon sessions).
Coleman’s argument for why we wouldn’t see the kinds of politically-motivated challenges we’re already seeing across the state: in three places, the regulation “prohibits” boards and the State Board or local districts from banning books because of their political preferences. But these are just words. There are no criteria limiting which books can be challenged, and “taxpayers,” not elected officials, will be choosing which books to challenge, so viewpoint discrimination is all but inevitable. If I challenge “The Very Hungry Caterpillar” for “sexual content,” and my local school district convenes a formal, public quorum of the board (they’re no longer allowed to farm this out to committees of actual experts, parents, and/ or students) to explain why my challenge ridiculous, I can still appeal that decision to the State Board, who will also have to convene a formal, public meeting of some kind. We’ve already seen this happen, again and again, using local board policies, and this state regulation makes the powers of people to challenge books broader instead of restricting them.
Coleman then went on a pretty lengthy rundown of previous cases touching on teacher and student First Amendment rights. For example, in discussing Island Trees v Pico, Coleman stated that “books that are pervasively vulgar can be excluded from a library”. But, again, this is not the standard created by the regulations, which ban anything with “sexual content,” whether “vulgar,” “pervasively vulgar,” or none of the above.
First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.
And in the morning session, Coleman suggested that student books and clubs would also be implicated by the regulations. This seems to set up lawsuits on behalf of students, who could be told that the books they bring to school and choose to discuss can now be judged “age-inappropriate” under these regulations.
While Coleman argued that the Tinker case narrowly applied to an “armband protest,” the same majority opinion also says this:
In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint…
Students in school as well as out of school are 'persons' under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.
At one point, Coleman used the phrase, “the marketplace of appropriate ideas”. This phrase adds “appropriate” to the phrase “marketplace of ideas,” commonly used by Courts in discussions of free expression. The word “appropriate” undermines the entire concept, because here a government entity is determining which ideas would be allowed to compete for acceptance in the “marketplace”. And ultimately individuals would be allowed, under the regulations, free reign to challenge ideas on behalf of the entire state. In a free marketplace of ideas, if no one wants to read the book, libraries will stop wasting money on it.
But this, ultimately, is the intentional paradox of the “parental rights” movement, as expressed through book bans: individuals are attempting to use the government as a weapon against their ideological enemies, rather than as a shield to protect their own children. I have never worked in a district that wouldn’t already allow parents and guardians to opt their own students out of books and materials they didn’t want those students to read. Usually, it’s as easy as a phone call or email to the teacher or librarian, and a student can be digitally flagged in the system and opted out of those scare old books.
If protecting students were truly the issue, and not a strawman to help inflame a base of anxious people to fight a culture war, I believe that’s what these groups would encourage their members to do.
The State Board is accepting feedback on the proposed regulations, which you can read here. You can submit comments about the legislation by emailing firstname.lastname@example.org before January 22, 2024. You can also find contact information for your specific State Board member here. For more information, click here.
The regulations cite a part of state law that defines “sexual content,” but importantly they do not cite the other parts of the state law that define pornography. Under state and federal law, obviously not all sexual content is considered either pornographic or obscene. Below is the part of the law cited in the regulations, in full. It’s easy to see how this exhaustive list will apply to both things most of us agree small children shouldn’t read, and to fairly standard middle and high school-level assigned and optional readings for kids:
Section 16-15-305(C)(1) (referenced in the regulation):
(C) As used in this article:
(1) "sexual conduct" means:
(a) vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted, whether between human beings, animals, or a combination thereof;
(b) masturbation, excretory functions, or lewd exhibition, actual or simulated, of the genitals, pubic hair, anus, vulva, or female breast nipples including male or female genitals in a state of sexual stimulation or arousal or covered male genitals in a discernably turgid state;
(c) an act or condition that depicts actual or simulated bestiality, sado-masochistic abuse, meaning flagellation or torture by or upon a person who is nude or clad in undergarments or in a costume which reveals the pubic hair, anus, vulva, genitals, or female breast nipples, or the condition of being fettered, bound, or otherwise physically restrained on the part of the one so clothed;
(d) an act or condition that depicts actual or simulated touching, caressing, or fondling of, or other similar physical contact with, the covered or exposed genitals, pubic or anal regions, or female breast nipple, whether alone or between humans, animals, or a human and an animal, of the same or opposite sex, in an act of actual or apparent sexual stimulation or gratification; or
(e) an act or condition that depicts the insertion of any part of a person's body, other than the male sexual organ, or of any object into another person's anus or vagina, except when done as part of a recognized medical procedure.
Title 16-15-305 (B) (not referenced in the regulation):
B) For purposes of this article any material is obscene if:
(1) to the average person applying contemporary community standards, the material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (C) of this section;
(2) the average person applying contemporary community standards relating to the depiction or description of sexual conduct would find that the material taken as a whole appeals to the prurient interest in sex;
(3) to a reasonable person, the material taken as a whole lacks serious literary, artistic, political, or scientific value; and
(4) the material as used is not otherwise protected or privileged under the Constitutions of the United States or of this State.