First Amendment litigation involving book censorship in schools has usually turned on the rights of a school board to control classroom curricula by prohibiting the use of certain texts, and an inquiry into whether a certain challenged text is vulgar. Some federal courts have distinguished between objective vulgarity—which a school board may prohibit—and the subject matter of a book (witchcraft, lesbian romance) with which the school board members may personally disagree or have a distaste for—and which a school board may not prohibit.

But one federal court recently stated that book banning takes place when a government or its officials forbid or prohibit others from having a book. The term does not apply where a school district—through its authorized school board—decides not to continue possessing the book on its own library shelves. The school board is the entity that has the ultimate authority to decide what books will be purchased and kept on the shelves of the schools in the district—and the school board can decide not to purchase and shelve a book in the first place.

In Nebraska, as in other states, First Amendment litigation related to book censorship in schools often hinges on the balance between a school board's authority to determine educational content and the protection against government censorship. Federal law, including First Amendment jurisprudence, allows school boards some discretion to control classroom curricula and remove texts they find objectively vulgar. However, federal courts have made a distinction between removing materials based on vulgarity and removing them because of disagreement with the subject matter, such as themes of witchcraft or LGBTQ+ relationships. A school board cannot prohibit books solely because they personally disagree with the content. A recent federal court ruling clarified that 'book banning' refers to the act of forbidding access to a book. This is distinct from a school board's decision not to purchase or retain a book in a school's library, which falls within the board's discretion to manage educational resources. The school board has the authority to decide which books to acquire and maintain in the district's libraries, and it can choose not to purchase or keep certain books without it constituting a ban.