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The booksellers’ revolt

Originally published: Texas Observer on March 11, 2024 by Matthew Patin (more by Texas Observer)  | (Posted Mar 19, 2024)

January 17 was a big day for opponents of book bans in Texas schools. Charley Rejsek, CEO of indie bookstore BookPeople, had just returned home from a routine meeting at the Austin Central Library. She opened her email and screamed with joy: The 5th U.S. Circuit Court of Appeals had ruled in her favor in BookPeople v. Wong, a challenge to Texas’ Restricting Explicit and Adult-Designated Educational Resources (READER) Act.

“READER had felt like a death sentence,” Rejsek said.

With the ruling, BookPeople and all book vendors can continue to service school districts the way they always have… The judges agreed with the unconstitutionality of the law as written. That’s validating.

The decision came in the nick of time: Signed into law in June 2023, the READER Act would have barred booksellers from conducting business with Texas’ K—12 libraries if they hadn’t first identified whether the books they were selling were “sexually explicit,” “sexually graphic,” or had “no rating.” By April 1, booksellers would have also had to identify every explicit book they had ever sold to any Texas school district that was still “in active use” by that district. Vendors were to submit these ratings to the Texas Education Agency (TEA), which could override them. Noncompliance ran the risk of placement on a list of unapproved vendors. Many bookstores derive significant income from school sales, and the thin-margin and often resource-strapped indies incapable of complying would have had to rethink their businesses, if not shutter entirely.


(Illustration: Ivan Armando Flores)

Opponents of the law, which was coauthored by state Representative Jared Patterson, of Frisco, lambasted it as a draconian effort to censor primarily LGBTQ+ authors, characters, and subjects. READER would harm booksellers’ bottom line, its terms were unconstitutionally vague, and forcing vendors to rate books is compelled speech, critics said.

To the relief of booksellers and freedom-to-read advocates, the 5th Circuit—often considered one of the nation’s most conservative—upheld a lower court’s temporary injunction against the ratings mandate, finding that it would harm vendors economically and constituted compelled speech.

“We are not persuaded by the State’s characterization of the ratings as a ‘form of consistency review’ that is a ‘purely ministerial task’ instead of an expression of the vendors’ opinion on the subject matter being rated,” the opinion read.

[This] statute requires vendors to undertake a fact-intensive process of weighing and balancing factors to rate library material. This process is highly discretionary and is neither precise nor certain.

Soon after the decision, Patterson called on Attorney General Ken Paxton to appeal the decision to the Supreme Court. Texas has 75 days from February 1 to do so. Plaintiffs could seek a decision from the district court to make the temporary injunction upheld by the 5th Circuit permanent, but had not settled on a course of action as of press time.

Texas has a long history of book censorship dating back to the McCarthy era, the publication of Henry Miller’s Tropic of Capricorn mid-century, and several Daughters of the Republic battles against both “obscene” dictionary entries and critical views of Texas history in the 1960s. But aside from a short-lived crusade against Harry Potter’s witchy influence in the late ’90s and early aughts, the conversation around books—and possible legislative policing—had been tame since the 1980s. That shifted near the turn of this decade.

A literary hysteria started brewing at least as early as 2021. In July of that year, the Texas State Preservation Board—a body helmed by Governor Greg Abbott and Lieutenant Governor Dan Patrick—unilaterally canceled a Writers’ League of Texas event at the Bob Bullock Texas State History Museum that would have featured the authors of Forget the Alamo, a book critical of the state’s origin story.

“As a member of the Preservation Board, I told staff to cancel this event as soon as I found out about it,” Patrick wrote on X, formerly Twitter.

This fact-free rewriting of TX history has no place [at the museum].

In October, state Representative Matt Krause disseminated a list of 850 books he wanted public school districts to review “for the welfare and protection of state citizens.” The list prompted one district to pull at least 125 titles. In March 2022, Llano County officials fired a librarian who refused to remove materials deemed objectionable by a group of people who said some of the library’s books—including one featuring a transgender teen—were “inappropriate” or “pornographic.”

Few, however, have been under siege like the state’s public school librarians.

A report from PEN America, a longstanding free speech advocacy group that has tracked book challenges since 2021, paints a grim picture. During the 2021—2022 school year, parents, educators, administrators, board members, or legislators challenged more than 1,500 books that were either included in curricula or placed in school libraries in districts across the country. A sizable number of those books contained “protagonists or prominent secondary characters of color,” according to the report, or addressed LGBTQ+ themes. A quarter of the challenges involved books having “sexual content of varying kinds,” though much of this was age-appropriate material about puberty or relationships. More than 800 of the total challenges PEN indexed in 2021—2022 originated in Texas. In the 2019—2020 school year, that number was 17, according to the Texas ACLU’s own figure.

Texas’ school librarians didn’t need a report to tell them they were being targeted.

“[Librarians] are being harassed in private Facebook groups,” said veteran Texas librarian Carolyn Foote, who in 2021 founded #FReadom Fighters, an advocacy group.

They’re receiving pressure from within [and outside] the school, and they’re really just trying to comply with… the standards for library operations that have been around for so long.

The standards she refers to are decades-long best practices laid out by the American Library Association and similar groups that incorporated guidelines about  books deemed “obscene” by courts. The same guidelines have also long encouraged community and family involvement in library collections. But the reason school librarians now “operate from a place of fear,” as Foote put it, stems from a change in the culture.

“A [Trump] presidency where anything goes as far as the way you treat people with differing ideas… created this climate where people felt more aggrieved and more permitted to act however they wanted, with no sort of social norms,” Foote said.

Foote said that greater diversity—and openness about diversity—has stoked fear among many Texans. In recent years, the state’s decision-makers have crusaded against everything from drag shows and diversity, equity, and inclusion (DEI) programs at universities to the teaching of Texas history. The “Texas 1836 Project,” for instance—its title based on the New York Times’s 1619 Project, which stressed the role of slavery in America’s founding—was established by legislators in 2021 to “never forget why Texas became so exceptional in the first place.”

Another reason: a vocal minority with the power to drum up fear. Far fewer people increasingly account for a far greater number of challenges. The Washington Post found that of 1,000 nationwide book challenges, 60 percent had been filed by a mere 11 people. Lawmakers have also taken the lead in censoring books: PEN’s 2021—2022 report noted that more than 40 percent of challenged titles that school year were “tied to directives from state officials or elected lawmakers to investigate or remove books in schools.”

Something else had changed, too: Historically, book challenges were quiet, deliberate, local affairs, involving formal procedures and committee reviews. Books suspected to be objectionable remained on shelves until a final decision. Now, challenges that lead to books being pulled are quick, loud, ideologically driven, and often centered on select passages divorced from context. Many books are being yanked from shelves immediately upon being challenged.

The road to meddling in private booksellers’ affairs began in August 2022, when Patterson boasted of having challenged 32 books in his home school district of Frisco due to “obscene content,” but lamented that the responsibility had fallen on state officials.

“National ratings groups, publishers, and book vendors… continue to highly rate, award and promote graphically explicit content produced in recent years,” he said in a statement.

Six months later, Patterson would up the ante.

The first draft of House Bill 900—the tendentiously named Restricting Explicit and Adult-Designated Educational Resources, or READER, Act—was introduced in March 2023. Coauthored by Patterson, READER outlined two separate but related provisions. The first instructed the Texas State Library and Archives Commission (TSLAC) to adopt “standards for school library collection development that a school district shall adhere to in developing or implementing the district’s library collection development policies” by January 1, 2024. Standards included recognizing parental involvement in curation, providing transparency into school libraries’ current catalogs, outlining and publicizing district-level book-challenge-review processes, and barring books deemed patently obscene and age-inappropriate based on longstanding precedent.

The second component compelled booksellers to rate “sexually explicit” or “sexually relevant” titles that they had previously sold to public K—12 schools and submit a list of those titles to the TEA. The overlap between these two primary components was the bookseller ratings—librarians were to refer to them when developing their collections.

Lawmakers were convinced that the law would banish “any communication, language, or material, including a written description, illustration, photographic image, video image, or audio file, other than library material directly related to the curriculum… that describes, depicts, or portrays sexual conduct…in a way that is patently offensive” from school libraries.

The law was to take effect September 1, 2023, and vendors were expected to submit their first rounds of ratings by April 1. Those ratings—or a notice of vendors’ failure to proffer them—would afterward be posted in a “conspicuous place” on the Texas Education Agency’s website.

The state’s leading librarians and their advocates were, if not thrilled, at least more sanguine about many of Texas’s statewide standards for developing their collections. Though READER would have marked the first time the state had codified such standards statewide, many of the bill’s goals were familiar, already de rigueur to experienced librarians.

But advocates feared that the primacy READER placed on parental involvement would lead families to believe they were newly armed with rights they had already possessed, leading to further and more uninformed assaults on beleaguered librarians. What’s more, though the bill’s insistence that districts clarify challenge-review processes sounded fine on paper, those processes—formerly collaborative and orderly—might easily be revised by ideologically driven decision-makers.

But most troublesome to advocates was the ratings regime READER established, which required school librarians to ban any book that vendors had rated as explicit—or, more accurately, the books the TEA considered as such. Librarians recognized, too, what booksellers knew as a matter of fact: Rating thousands of books would be highly subjective and time-consuming.

BookPeople’s Charley Rejsek knew something was cooking in the Lege in early 2023. A fellow Texas bookseller had alerted her to one of the 39 library regulation bills introduced that year—a nearly tenfold increase beyond the usual number. It was not until March 7, however, when Patterson filed HB 900, that the stakes were immediately clear.

“The goal [with HB 900] was to put this workload onto bookstores,” Rejsek said.

It’s so impractical.

Rejsek has been a bookseller for more than 25 years. I first met her in 2017, when she was serving as the logistics and volunteer coordinator at Texas Book Festival. Three years later, she was named BookPeople’s new CEO. Soon after, her duties ballooned beyond the managerial.

“I did not think that this would ever be something I would have to do on behalf of booksellers,” she told me,

but I also knew that the bill wasn’t feasible… I had no choice. It’s my job [as] a bookseller to say why it’s not going to work.

A substantial portion of BookPeople’s business is made up of school sales, and the burden of READER’s ratings system was untenable. Rejsek took the issue up with the education committee as well as House Speaker Dade Phelan.

“We went to everyone we could think of,” Rejsek said. “We went in person; we emailed them; we [showed them how] we would never be able to comply.

The shops I spoke with could barely begin to wrap their heads around READER’s potential impact on their operations and bottom lines. Will Evans, founder of Deep Vellum Bookstore in Dallas, characterized the bill as “ill-conceived and hateful to its core.” While his shop doesn’t rely on school sales to the same degree as others, the new law would change how the store functions.

“It would hurt our business,” he told me.

Would we have to cut employees? Probably.

Randi Null, the general manager of Houston’s Brazos Bookstore, explained that because so much of her shop’s marketing efforts are tied to school-sponsored book fairs, author visits, and classroom libraries, the financial loss stemming from READER would be devastating. She was sure of at least one thing, however: The Brazos employee charged with purchasing children’s books for the store would quit under the weight of it all.

In May 2023, weeks after the House had given HB 900 the thumbs-up, Rejsek testified before the Texas Senate Committee on Education. READER had yet to pass the Senate, and she was trying once more to convince lawmakers.

“This bill would require us to retroactively report every book ever purchased from us at the bookstore registers, or at a festival, or an author event, or any other public setting that may have been brought for circulation into a school,” she said, her voice trembling.

This is not possible. We have never been required to keep these records, and we do not have a way to create them. Due to the lack of records, it would be impossible for us to rate all books we may have sold that are in active circulation after 52 years of business.

After Rejsek spoke, a BookPeople colleague painted a picture of a new and near-Orwellian day-to-day: “This could mean entry-level cashiers asking every customer in the store the intended purpose of their purchase, evaluating, questioning, and tracking it.”

If small booksellers incapable of READER compliance were cut out, only a few big players would remain to satisfy school libraries’ collection needs. The fewer the players, the simpler it would be for the state to manage and dictate the terms of lucrative and massive bulk-order book buys with those mega vendors willing to dispense with principle and play the game. The result: an ever narrower catalog of government-approved books channeled into school libraries.

Speculation and fear were all that Texas’ booksellers had left. Despite Rejsek’s plea, the Senate stamped READER with approval two weeks after her testimony, and Abbott signed it into law that June.

Though officially READER wouldn’t take effect until September, the Houston area’s Katy Independent School District—having already dictated that students must have parents’ permission before checking out any book at its school libraries—decided in a preemptive huff to halt all new book purchases.

With the die cast, TSLAC had little choice but to begin drafting new collection-development standards for Texas’s K—12 schools. The state’s booksellers, for their part, could do little. But Rejsek wouldn’t throw in the towel.

In late July, BookPeople joined forces with Valerie Koehler of Houston’s Blue Willow Bookshop as well as the Association of American Publishers, the Author’s Guild, the American Booksellers Association, and other national organizations in filing suit against the state over the READER Act.

Amicus briefs supporting the plaintiffs illuminated READER’s economic impact on booksellers. Blue Willow, for instance, derived 20 percent of its sales from school-related functions and, with total annual revenue just north of $1 million, might have to shutter if compelled to rate every book they’d already sold to schools. Compliance would cost them between $200 and $1,000 per book for a total between $4 million and $500 million.

On September 19, in a scathing 59-page opinion, U.S. District Judge Alan Albright wrote,

READER’s requirements for vendors are so numerous and onerous as to call into question whether the legislature believed any third party could possibly comply.

Albright halted the enforcement of READER’s bookseller ratings while leaving TSLAC’s school library collection-development standards intact. A week after the judge’s ruling, Texas appealed the decision to the U.S. 5th Circuit, which—in a temporary win for the state—denied Albright’s injunction and expedited a schedule for oral arguments. Meantime, the state could proceed as planned.

At oral arguments in November, Laura Lee Prather, the plaintiffs’ lead attorney, outlined the consequences of a READER future.

“It is important to stress that unless the injunction is continued and the administrative stay is lifted, irreparable injury in the form of lost First Amendment rights will ensue,” Prather said.

In the absence of an injunction, the financial, reputational, and constitutional effects of the required ratings will be irreversible. Even if HB 900 is ultimately overturned, this bell cannot be unrung.

In January, after the 5th Circuit at last ruled in BookPeople’s favor, I asked a relieved Charley Rejsek about what her attorney had said.

“I hope that we stopped it early enough,” she said,

so that if there were any damage, it could be undone.

“Once your name is on a website with ratings that you don’t agree with,” she went on,

you can’t take it back.

In an X post, State Republican Executive Committee member Christin Bentley—long an outspoken proponent of READER—decried the triumph of the “groomers” and assured everyone,

In the months leading up to the 89th Texas Legislative Session, we have good work ahead of us and a clear path ahead.

She signed off:

The enemy would have you defeated and discouraged. Don’t be! The enemy is a liar! Victory is the Lord’s!

Like Bentley, Patterson looked forward to new opportunities to stick it to booksellers: “In the meantime, [I] look forward on how Texas can improve vendor accountability with other legislative solutions next session,” he said.

Rejsek’s attention turned to librarians. The vendors had secured a victory, but “the librarians are still fighting.”

Though a win for booksellers, the 5th Circuit’s ruling had indeed sidelined the library standards portion of HB 900, just as the district court had.

“Only the rating system affects Plaintiffs,” the circuit court’s opinion read, and “the library standards are not at issue on appeal.”

The Texas Library Association (TLA) lauded the appeals court’s decision but lamented the standards left in place.

“There’s really just a lot of uncertainty [now],” the TLA’s Shirley Robinson told me.

Carolyn Foote for #FReadom Fighters agreed: “[The new standards are] creating a lot of confusion,” she said. Because TSLAC’s recently adopted standards included the now-defunct provisions about vendor ratings, they were “impossible to comply with.”

Whatever the ultimate outcome of the legislative and legal wrangling, READER has already had a chilling effect on school libraries and librarians who censor themselves to avoid trouble.

“There is a climate of fear and uncertainty, and librarians feel like their jobs are being threatened,” Robinson said.

They are responding in ways that may even be contrary to their training and not ordering certain books or [shelving them] because they’re afraid of who’s going to walk into the library and turn something into a weapon against them.

I asked Rejsek, who in December was named, along with Blue Willow Bookshop’s Koehler, as Publishers Weekly’s person of the year in recognition of their stands against book banning, what to make of the future.

“I think this is just the beginning,” Rejsek said.

All over the country, they’re throwing something at the wall, and they’re getting it into the courts, and they’re seeing what sticks.

“It’s a really scary time,” Robinson added.

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