Democracy Blog Essay

Government by the People: Iowa’s Book-Ban Law and Direct Democracy

As the first day of classes neared, Bridgette Exman, assistant superintendent of the Mason City School District in north-central Iowa, found herself plugging a list of controversial books into ChatGPT in an effort to adhere to a new law Iowa had just passed banning non-“age-appropriate” texts from school libraries.  Exman’s priority was to “start the school year” on strong footing for Mason City students, and turning to ChatGPT seemed like the easiest way to try and comply with a law that entirely lacked definitional clarity. 

According to a recent survey, a significant majority of Iowans is opposed to banning books in schools, raising a provocative question: besides going to the courts, what can members of the public do to change laws they believe are fundamentally misguided?  Unlike the federal Constitution, many state constitutions permit citizens to propose ballot initiatives (which let citizens vote to enact laws) and veto referenda (which let citizens vote to repeal laws).  Though not without its detractors, direct democracy has the compelling potential to let the public show its “widespread disaffection” and “restrain legislative excesses.”  Somewhat unusually, however, the Iowa Constitution grants Iowans almost no direct-democracy rights.  A state constitutional convention, preceded by a voter-education campaign about the initiative-and-referendum (I&R) process, offers a possible path forward: adding I&R to the Iowa Constitution through a citizen-initiated convention might reduce the risk that the state legislature passes laws wildly out of touch with public opinion in the future.

Despite the United States’ proud tradition of “freedom of thought and speech,” book-ban laws have a long history on American soil.  In 1637, an irreverent businessman named Thomas Morton published a treatise harshly criticizing Puritan customs in the Plymouth Colony, which the colonial government promptly censored.  Abolitionist texts like Uncle Tom’s Cabin were routinely outlawed in slaveholding states during the antebellum period.  And at the height of McCarthyism in 1953, a member of the Indiana Textbook Commission “called for a ban of Robin Hood . . . for promoting communism because he stole from the rich to give to the poor.”       

The latest chapter in this centuries-old story involves a “growing, well-organized, conservative political movement” targeting a perceived liberal bias in public education by seeking to remove books involving “race, history, gender identity, and reproductive health from America’s public and school libraries.”  In furtherance of this project, certain states have passed an array of new book-ban laws, making it easier for parents to challenge books in school curricula (Florida), prohibiting schools from obtaining certain classes of books entirely (Texas), or exposing librarians and booksellers to criminal liability for providing “harmful” materials to minors (Arkansas).   

Recently, Iowa joined the trend.  In 2023, Republican-led majorities in both houses of the Iowa General Assembly enacted S.F. 496, a law that “seek[s] to limit discussion of sexuality and gender identity in schools” by requiring, among other things, that only “age-appropriate” materials be included in “kindergarten through grade twelve library program[s].”  S.F. 496 then specifies that “age-appropriate” does not “include any material with descriptions or visual depictions of a sex act.”  S.F. 496 also requires each school district to adopt a policy allowing resident parents to “request the removal of a book . . . that is available to students . . . in a [school] library.”  And the law exposes school employees who commit “knowing[]” violations of its provisions to disciplinary action.  The Iowa Senate passed the bill in its final, amended form (34–16) on April 19, 2023; the Iowa House of Representatives concurred in the amendment (57–38) on April 20; and Governor Kim Reynolds signed it into law on May 26, lauding it for “put[ting] parents in the driver’s seat.”  (One might wonder why Iowa lawmakers passed a law so unsupported by Iowa voters.  A potential answer lies in the fact that even though Iowa contains a relatively equal number of Democratic and Republican voters, Democrats have tended to congregate in cities with already-strong Democratic voting blocs, creating sparsely populated rural Republican districts that are more conservative, on average, than the state’s population as a whole.) 

Because S.F. 496 does not explain in any detail what “description[] . . . of a sex act” means, its implementation has been, in a word, chaotic.  While the bill contains a cross-reference to a separate provision of Iowa law defining “sex act,” nowhere does S.F. 496 attempt to delineate how graphic something must be to constitute a “description” of such an act.  This vagueness, coupled with a lack of regulatory guidance from the Iowa Department of Education, has left school districts in the dark as to how to avoid S.F. 496’s disciplinary sanctions.  Mason City relied on ChatGPT to create a targeted list of potentially problematic book titles.  Urbandale took a different tack, proposing a broad swath of 374 books to be removed (it later trimmed the list to sixty-five). 

Book-ban laws are deeply unpopular with voters of both political parties.  Unsurprisingly, some have responded to the latest spate of book-ban legislation by challenging the laws under the First Amendment, as two parents in Florida’s Escambia County School District did in May 2023.  But lawsuits, in addition to sapping litigants’ time and resources, have no guarantee of success; the Supreme Court in 1982 split 4–4 on the question of whether “local school boards may . . . remove books from school library shelves simply because they dislike the ideas contained in those books,” and the Court has expressed a deferential view of state authority in the public-school context.  With judicial victories an open question at best, those opposed to book-ban laws might have to look to direct democracy—as voters in Arkansas recently tried to do—to undo their state legislatures’ handiwork.

Unfortunately for Iowans who might be perturbed by the scope and ambiguity of S.F. 496, while twenty-three states permit veto referenda, Iowa is not one of them.  Given Iowa’s proximity to states with rich direct-democracy traditions (such as South Dakota, Missouri, and Nebraska), its total bar on state-level I&R is surprising, the product of an unfortunate mid-nineteenth century Iowa Supreme Court decision and a failed effort to amend the Iowa Constitution in 1915. 

In 1855, the Iowa Supreme Court, citing the legislative vesting clause of the Iowa Constitution, held that “the people have no power, in their primary or individual capacity, to make laws.”  In light of this opinion, if Iowans wanted the power to submit referenda or initiatives, the Iowa Constitution would have to be amended.  In the late-nineteenth century, a wave of enthusiasm for direct democracy led Iowa’s sister states to enact precisely this sort of constitutional amendment.  But in Iowa, there was a hitch: its Constitution required (and continues to require) “any amendments . . . to be cleared by the legislature twice, in two successive sessions with an election in between.”  While Iowa legislators passed an I&R amendment with “overwhelming” support in 1913, it was “indefinitely postponed” when it came up for a second vote in 1915 and “never went to the voters.”  The issue hasn’t been reevaluated since. 

The Iowa Constitution is not wholly bereft of direct democracy.  Art. X requires that voters be given the opportunity to call for a state constitutional convention every ten years on the decade; if such a convention is called, the amendments it ultimately proposes are to be individually put to popular vote.  Adding I&R to Iowa’s state constitution might be a fruitful product of such a convention, giving voters veto power over laws like S.F. 496 in the future.  Then again, each time that a convention question has been posed in Iowa, voters have roundly rejected it (in 2020, for instance, the measure was defeated by a 70–30 margin).  This outcome makes intuitive sense; to the average voter, a state constitutional convention, which theoretically opens the entire document up for revision, is a “frightening thing.” 

A targeted voter-education campaign about I&R could help break this logjam.  In the first decade of the twentieth century, such a campaign successfully led to a reversal of public opinion on direct democracy in Missouri and paved the way for the adoption of I&R in 1907.  In twenty-first-century Iowa, such a campaign might emphasize (1) that an Iowa constitutional convention’s power is limited by the fact that the amendments it proposes will be put to a popular vote; (2) that the Iowa Constitution as it stands is unusually hard to change, making other avenues of amendment difficult if not impossible; and (3) that because of this peculiar amendment process, Iowans lack powers of direct democracy that residents of its sister states enjoy.  With these messages in mind, Iowans in 2030 might well vote to call a convention.  But 2030 is a long way off.  In the meantime, educators struggling to comply with S.F. 496 will likely continue to rely on novel, extralegal means of assistance like ChatGPT, and aggrieved parents will likely continue to seek recourse in the courts.  They shouldn’t have to.