Reversing an October decision in a legal battle over access to books, a federal judge this week ruled that Escambia County School Board members must testify about the removal of books from school libraries because the officials are not shielded by what is known as “legislative privilege.”
U.S. District Judge T. Kent Wetherell’s ruling Wednesday complicates litigation about school book removals in the Panhandle county, which has become a battleground amid controversy in Florida and other states about removing or restricting access to children’s books.
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Lawyers for the board members had sought to shield them from having to testify in the lawsuit filed last year by parents, authors, the publishing company Penguin Random House, and the free speech group PEN American Center, Inc. U.S. Magistrate Judge Zachary C. Bolitho last month agreed that the board members were protected by legislative privilege.
But reversing Bolitho’s ruling, Wetherell pointed to previous court rulings establishing guidelines for determining whether board members’ decisions to remove or restrict books were legislative acts.
“Under those standards, even though the school board’s decision to remove or restrict a book has some hallmarks of a legislative act (e.g., voting after debate at a public meeting), it is functionally an administrative act,” Wetherell wrote.
A book removal or restriction decision is “based on specific facts (the content of the book)” and is “more akin to a permitting or employment termination decision,” which courts have held to be administrative acts because officials are following already-established guidelines, the Pensacola-based judge added.
“The fact that school board members must exercise discretion, engage in ‘line-drawing,’ and make ‘policy judgments’ when deciding whether a particular book is educationally suitable, grade-level appropriate, etc., does not change the fact that they are applying policy, not formulating it when doing so,” Wetherell’s ruling said.
Wetherell’s decision was at odds not only with Bolitho’s ruling in the same case but also conflicted with a ruling by U.S. District Judge Allen Winsor in a separate lawsuit challenging Escambia County school officials’ removal of the children’s book “And Tango Makes Three.” That book tells the story of two male penguins who raised a penguin chick at New York’s Central Park Zoo. Co-authors Peter Parnell and Justin Richardson and a student identified by the initials B.G. are challenging the removal of the book, contending, at least in part, that it was targeted for depicting same-sex parents raising a child.
Winsor in September ruled that legislative privilege shielded Escambia board members from having to give depositions in the “And Tango Makes Three” lawsuit. saying that a decision about removing a book from a school library “was a quintessential policy about how best to educate Escambia County children.” Bolitho’s Oct. 18 ruling relied heavily on Winsor’s decision.
“… there is a functional difference between the school board’s adoption of a policy detailing what content is generally prohibited in school library books and the board’s determination that a specific book must be removed from school libraries because it contains such content.”
U.S. District Judge T. Kent Wetherell
Wetherell wrote that he “did not overlook” Winsor’s opinion, which said the decision to remove a particular book from school libraries “was a quintessential policy decision about how best to educate” children in the county.
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“But the same could be said about the decision to fire or retain a particular teacher — which is indisputably an administrative act,” Wetherell wrote. “Moreover, just like there is a functional difference between the adoption of a zoning ordinance (legislative act) and the application of the ordinance to a specific permit application (administrative act), there is a functional difference between the school board’s adoption of a policy detailing what content is generally prohibited in school library books and the board’s determination that a specific book must be removed from school libraries because it contains such content.”
Wetherell’s Wednesday decision tweaked a ruling he issued Monday and formalized a verbal ruling he made during a hearing last week. Lawyers for the board members told the judge during the hearing that they intended to appeal his decision and request that it be blocked while the Atlanta-based 11th U.S. Circuit Court of Appeals weighs the issue.
Plaintiffs in the lawsuit contend that school board decisions to remove or restrict access to library books violated First Amendment and constitutional equal-protection rights.
Litigation over book removals in schools has mushroomed as Florida and other Republican-led states have made it easier for parents and other people to scrutinize books and to challenge materials that they deem unsuitable for students.
A Florida law passed in 2022 ramped up scrutiny of books and instructional materials and gave parents and members of the public increased access to the process of selecting and removing school library books. A 2023 law includes a requirement that books drawing claims of containing pornographic material or describing “sexual conduct” be removed within five days of objections and remain unavailable to students until the objections are resolved.
The Escambia County cases are among a number of lawsuits pending throughout the state about the controversial book laws.
Some of the nation’s largest book publishers joined authors and parents of high-school students in a federal lawsuit filed in August challenging the 2023 law, alleging that it unconstitutionally violates speech rights. Penguin Random House; Hachette Book Group, Inc.; HarperCollins Publishers LLC; Macmillan Publishing Group, LLC; Simon & Schuster, LLC; and Sourcebooks LLC and other plaintiffs alleged in the lawsuit that books “have been targeted for removal or removed from school libraries” throughout the state following passage of the law.
The lawsuit challenges parts of the law that prohibit books with content that “describes sexual conduct” or contain “pornographic” content. The law imposes “a regime of strict censorship in school libraries” and requires school districts to “remove library books without regard to their literary, artistic, political, scientific, or educational value when taken as a whole,” the lawsuit said.
In June, three parents filed a federal lawsuit alleging the 2023 law’s process for removing books unconstitutionally discriminates against parents who disagree with “the state’s favored viewpoint.” Plaintiffs in the lawsuit are two parents from St. Johns County and one from Orange County. They contend Florida lacks a procedure for parents to object to book removals, an unconstitutional infringement of their First Amendment rights.
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