A Florida school district wouldn’t let a “Playboy” or a book about bomb-making sit in its libraries. That’s why the Escambia County School Board says it should be able to remove an award-winning children’s picture book about a same-sex penguin pair.
This dramatic comparison came during the board’s latest defense against a federal lawsuit filed by the authors of “And Tango Makes Three,” a book about two male penguins raising a chick together. The board banned it last year and has since spent a heap of money defending that decision in court.
“A reasonable observer would perceive the inclusion of any particular book in a public school library as a statement by the school board that this book is suitable and age-appropriate for the students at that particular school,” attorneys for the board wrote in a Friday court filing.
In Friday’s filing, the school board asked Tallahassee-based U.S. District Judge Allen Winsor to give it a win without a trial, known as a summary judgment.
The request is one of the only areas the opposing sides agree on. Those suing filed the same motion on Friday — though they asked Trump-appointed Winsor to rule that the board violated the First Amendment.
“Defendant’s decision to remove Tango based solely on the Board’s personal animus toward LGBTQ+ content and desire not to allow District children to have access to Tango’s positive LGBTQ+ themes was squarely viewpoint discrimination,” they wrote.
These dueling motions represent progress in a case with high-stakes constitutional consequences.
Why is it high stakes?
The school board is arguing that removing books represents “government speech,” which doesn’t implicate the First Amendment. That’s a controversial claim, called “authoritarian” by free speech advocates, yet one that even the state government has pushed.
The case law on that is unsettled, but that means this and the other cases where the government speech argument has been made in Florida and beyond have the potential to set a powerful precedent.
“Government speech goes beyond content-based decisions to include viewpoint-based choices, too. For example, a city’s decision as to what type of statue to erect was government speech that did not require even viewpoint neutrality,” attorneys for the board wrote.
“When the government speaks, it may refuse to endorse or freely remove speech of which it disapproves,” they added.
There’s a chance that Winsor doesn’t touch that argument, as there are others being made that he can weigh in on. In one of them, the board denies it committed viewpoint discrimination at all: “Plaintiffs cannot prove all three board members (who voted to remove the book) had a discriminatory motive,” it wrote.
The plaintiffs’ argument
The authors of “And Tango Makes Three,” as well as an elementary schooler whose parent is also suing because she can’t access the book in school, point to other penguin picture books still on the shelves.
“The Emperor Lays an Egg” and “The Emperor’s Egg” also show parent penguins raising a chick.
The major difference? They are mother-father pairs.
“Such blatant viewpoint discrimination violates the First Amendment under any applicable standard,” those suing wrote on Friday. “And Tango Makes Three” is based on an actual penguin family at New York’s Central Park Zoo.
The book was challenged by local teacher Vicki Baggett, who has objected to hundreds of books. Her reason for challenging “And Tango Makes Three,” according to her submitted form: “LGBTQ agenda using penguins” with a purpose of “indoctrination.”
During a deposition Baggett gave as part of the litigation, she said the book was “pushing the idea that it’s okay for two people of the same sex to fall in love and nurture and have a family.”
The board members who voted to remove the book “were in consistent contact with the District teacher who challenged Tango and never disavowed the anti-LGBTQ+ animus she expressed about Tango or the LGBTQ+ community generally,” the plaintiffs wrote.
“The discovery process has decisively shown that in voting to remove Tango, the Removal Board Members substituted their personal animus regarding LGBTQ+ content and themes for a decision based on the book’s clear educational value, to which the District’s own media and library specialists, District review committee, and community attested,” said Lauren Zimmerman, an attorney at law firm Selendy Gay, which is representing the plaintiffs in the lawsuit.
The board members had gone against the recommendation of the school district’s own review committee, which OK’d the book.
This reporting content is supported by a partnership with Freedom Forum and Journalism Funding Partners. USA Today Network-Florida First Amendment reporter Douglas Soule is based in Tallahassee, Fla. He can be reached at [email protected]. On X: @DouglasSoule.
This post was originally published on here
