In 2023 Iowa enacted a law placing restrictions and mandates on public schools concerning sexually-related and LGBTQ issues. Two lawsuits were filed challenging particular provisions. Both cases were heard by US District Judge Stephen H. Locher (an appointee of President Joe Biden), who granted preliminary injunctions blocking the challenged provisions from going into effect. The defendants, state officials and school boards, appealed to the Eighth Circuit, which sent the cases back to Judge Locher with instructions to reconsider his rulings, but he reaffirmed his preliminary injunctions upon further consideration. On April 6, an Eighth Circuit three-judge panel issued two decisions, again rejecting Judge Locher’s preliminary injunctions and allowing the laws to go into effect.
The contested provisions of Senate File 496 required school libraries to have only “age-appropriate” materials and prohibited the inclusion of “any material with descriptions or visual depictions of a sex act.” “Age appropriate” is defined as “topics, messages, and teaching methods suitable to particular ages or age groups of children and adolescents, based on developing cognitive, emotional, and behavioral capacity typical for the age or age group.”
As to a school district’s curriculum and programs, File 496 said that “a school district shall not provide any program, curriculum, test, survey, questionnaire, promotion, or instruction relating to gender identity or sexual orientation to students in kindergarten through grade 6.” (In 2025, the statute was amended to change “gender identity” to “gender theory.”)
Another provision says, “If a student enrolled in a school district requests an accommodation that is intended to affirm the student’s gender identity from a licensed practitioner employed by the school district, including a request that the licensed practitioner address the student using a name or pronoun that is different than the name or pronoun assigned to the student in the school district’s registration forms or records, the licensed practitioner shall report the student’s request to the administrator employed by the school district, and the administrator shall report the student’s request to the student’s parent or guardian.” This provision subjects school districts and employees to potential disciplinary action for failing to comply.
A group of publishers joined with the Iowa State Education Association and some parents and students to challenge the library provisions, suing state education officials and a long list of local school districts. An advocacy group called Iowa Safe Schools, formerly known as GLBT Youth in Iowa Schools Task Force, joined with several students and parents challenging the curricular provisions, as well as the provision requiring reporting trans students to parents, and also opposed the library provisions.
District Judge Locher found, based on prior Supreme Court and Eighth Circuit decisions, that there was no single standard of scrutiny applicable to restrictions on First Amendment rights in the school setting and relied on the cases involving the federal constitutional definition of obscenity (which does not enjoy First Amendment protection) and a “substantial and reasonable government interest” test described by the Supreme Court in a 1982 case involving library censorship in a school district on Long Island, which had been adopted by the Eighth Circuit in a later 1982 case. He concluded that the plaintiffs were likely to prevail in showing that unconstitutional applications of the law substantially outweighed constitutional applications and issued preliminary injunctions.
The Eighth Circuit panel disagreed. The appeals panel decided that the parent and student plaintiffs had no First Amendment claim regarding whether the school libraries removed books deemed age-inappropriate or having forbidden sexual content, and the publishers fared no better as the court decided that decisions about which books to have in the libraries were really curricular decisions, not subject to judicial review. The appeals panel also rejected Judge Locher’s conclusion that the law was too vague and ambiguous, finding that “the library restrictions are neither amorphous nor unreasonable.”
Judge Locher had found that the list of prohibitions in the statute on curriculum and related matters included two undefined terms — “program” and “promotion” — that were so broad and vague that they might create serious constitutional concerns. The state argued in opposition that the statute “applies only to mandatory parts of the educational curriculum,” and the appeals panel accepted that argument. It disagreed with Judge Locher’s conclusion that unconstitutional applications of the law outweighed constitutional applications and vacated his preliminary injunction.
Finally, addressing the provision containing the parental notification mandate, Judge Locher found ambiguity in the term “accommodations,” a term not defined in the statute, but which he thought might be held to govern the issues of bathroom access and sports team participation, both hot points of contention regarding trans students. The appeals panel rejected the idea that “accommodation” rendered the statute impermissibly vague, pointing out that the term is used without express definitions in several statutes whose constitutionality has been upheld, such as Title VII of the Civil Rights Act of 1964, the Fair Housing Act, and the Bankruptcy Code. Since the plaintiffs were mounting a facial challenge to the entire provision, not focusing on its application to particular situations, the court once again faulted the district court for preliminarily enjoining its enforcement. And it reiterated that in its other decision the challenge to the library provisions had also been rejected at this stage of the case.
Since this ruling had only to do with the district court’s preliminary injunctions, both cases will continue before the district court to a ruling on the merits unless one of several things happens next: a petition by the plaintiffs for en banc (a bench of the full circuit court) review, a settlement in the district court, or the possibility that the district court could grant a motion to dismiss both cases based on the reasoning of the appeals panel ruling. The plaintiffs could also petition the Supreme Court for a stay of the panel decision, but that would be a real long shot. A petition for en banc review in the Eighth Circuit would be a sure loser, since 10 of the 11 active judge of the Circuit are Republican appointees.
The three-judge panel consists entirely of Republican appointees: Judge Ralph Erickson, a first term Trump appointee, wrote the opinion. He recently signaled his intention to retire from active service on the court when a successor is confirmed by the Senate. The other members of the panel are Circuit Judge Lavenski Smith, an appointee of President George W. Bush, and Circuit Judge Jonathan Kobes, another Trump appointee. A lengthy list of organizations and governmental bodies submitted amicus briefs on both sides in the two cases.
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