District Judge Dismisses Censorship Lawsuit

Judge Lydon argued that plaintiffs didn't have standing to sue over alleged First Amendment violations.

Today, Sherri Lydon, US District Court Judge for South Carolina, dismissed a case brought by the state NAACP, Ibram Kendi (author of Stamped from the Beginning and How to Be an Antiracist), and several students and educators.

The plaintiffs had been seeking a temporary restraining order against Superintendent Ellen Weaver and several state public school districts to prevent them from enforcing a state budget proviso by censoring books and course content.

Lydon, who was appointed by President Trump to the Court in 2019, based her dismissal on the argument that the plaintiffs lacked standing to sue, largely because, she writes, even if the budget proviso were not enforced, the State Department of Education could simply use other rationales for blocking AP African American Studies, and because educators could not show that they were being harmed directly by the budget proviso.

Strikingly, Lydon begins the dismissal order by writing,

During the 2021–2022 legislative session, the South Carolina General Assembly introduced five bills aimed at addressing concerns related to race and gender instruction. The topics covered in these bills closely mirror Executive Order 13950 (“the Order”) issued by President Donald Trump during his first term. The Order concerned nine issues deemed to be “divisive topics” and set limits on how these topics could be addressed… When these bills failed to become law, the legislature incorporated similar restrictions through budget provisions.

This is certainly an accurate summary of events. The Trump Executive Order, which was reportedly inspired directly by anti-CRT crusader Chris Rufo, is clearly one of the main inspirations, along with model legislation from rightwing groups like the National Association of Scholars and the Heritage Foundation, for the bills filed by the General Assembly in 2022.

And as Lydon writethe General Assembly was (after, I would add, a long process that involved hundreds of citizens attending public meetings to protest the bills) was unable to pass any of the legislation.

In the Order, Judge Lydon acknowledges that the General Assembly was unable to pass laws restricting the content they ultimately used a budget proviso to restrict.

So, as has become a common practice for South Carolina legislators, they slipped a proviso (a temporary law that lasts only until the next year’s budget has passed) into the yearly budget in 2022, and have re-introduced the same proviso each year thereafter. This allows the General Assembly to incorporate prohibitions against the topics it doesn’t like without public hearings, committee meetings, or a public amendment process. Rather than make the topics technically illegal, it simply promises to withhold state funding from school districts if they teach them.

But just as strikingly, Lydon explains her dismissal of the case by writing,

The court recognizes that the issues raised are matters of public importance. But because Plaintiffs lack standing, the Constitution leaves their resolution to the democratic process rather than the federal courts. Plaintiffs’ motion for preliminary injunction, ECF No. 30, is DENIED and Defendants’ motions to dismiss, ECF Nos. 49 & 51, are GRANTED.

In other words, the only recourse citizens have against the budget proviso, according to Lydon, is the same democratic process that defeated the proposed bills, only to fail to prevent the budget proviso.

Additionally, Lydon argues that because of the SC Department of Education’s regulation 43-170, which grants the State Board of Education broad powers to restrict and ban books, even if she were to grant a temporary restraining order against the budget proviso, the Department or districts could simply ban those books and topics using the Board regulation, instead.

As multiple attorneys argued during hearings about that regulation, and during public comment, that regulation is arguably unconstitutional, itself.

For me, Lydon’s dismissal raises a crucial constitutional question and never answers it. As Lydon writes, conflicting court decisions on how the First Amendment applies to schools have not led to an easy consensus about the issue. Lydon’s dismissal, then, raises the question of whether anyone has standing to object to a violation of the First Amendment, if the budget proviso truly is one, since under her rationale students, their parents, and educators do not have standing, even though, as she argues herself at one point,

…even where a First Amendment challenge could be brought by someone engaged in protected activity, there remains the possibility that, rather than risk punishment for his conduct in challenging the statute, he will refrain from engaging in the protected activity altogether. In such cases, society as a whole is the loser.

This is essentially the argument the educator plaintiffs made: that they were afraid to provide services to students, or to cover topics, because the budget proviso would be used to restrict speech that might be protected by the First Amendment.

The student plaintiffs argued (correctly, in my opinion, although I’m not an attorney) that they have a right to receive information.

The conclusion to Lydon’s Order of Dismissal.

While Lydon dismisses this on the grounds that students can’t force the government to supply a specific course or specific books, she never addresses the most important issue raised by this kind of censorship.

After all, the South Carolina government did not simply decide to censor material that was of interest to all students equally: censoring African American studies, while it potentially harms all students, has a specific and seemingly intentional impact on African American students. (The intentionality seems easy to argue, since the proviso is nearly identical to a portion of the Trump Executive Order, and that Order came early in a still-intensifying campaign to crush “DEI,” in the form of virtually anything intended to create parity between white and non-white students. Unfortunately, by dismissing the case, Judge Lydon cut off at least one opportunity for the plaintiffs and their lawyers to argue this in front of a jury.)

Providing courses that are Eurocentric, as every school district in the state does, and as our state academic standards require, while denying students a course that provides an African American perspective, seems like the definition of viewpoint discrimination. By ending AP African American studies and focusing censorship efforts explicitly on material related to race, gender identity, and other issues that are of special interest to minority communities, the state isn’t simply deciding not to provide a book or a course; it is deciding that some students deserve a more representative and more effective education than others.