TALLAHASSEE , Fla. — Facing two lawsuits alleging they violated First Amendment rights, Escambia County School Board members and the district’s superintendent are arguing they should be shielded from testifying about decisions to remove or restrict access to school library books.
Lawyers for the school board and Superintendent Keith Leonard filed motions this month seeking protective orders to prevent them from having to give depositions in the federal lawsuits.
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Attorneys for plaintiffs in one of the cases, involving the removal of the children’s book “And Tango Makes Three,” fired back in a court filing Wednesday. The filing called the request for a protective order an “untenable position.”
“Defendant’s motion attempts to shield from discovery some of the most significant evidence in this litigation: the motivations of the five board members who unlawfully removed ‘And Tango Makes Three’ from the district’s public school libraries and the superintendent who assisted the board in doing so,” the filing said.
In the motions, lawyers for the school board and Leonard pointed to issues such as a legal concept known as “legislative privilege.”
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“Because the board acts as one, its individual members’ motives are not only irrelevant but protected by legislative privilege,” the motion in the “And Tango Makes Three” case said. “Florida law prohibits any private deliberations by the board — indeed, all deliberations concerning Tango occurred in the sunshine during a public meeting — and forcing the board members to testify would be irrelevant, unduly burdensome and unnecessarily cumulative.”
Escambia County has become a battleground amid controversy in Florida and other states about school officials removing or restricting access to books. “And Tango Makes Three,” for example, tells the story of two male penguins who raised a penguin chick at New York’s Central Park Zoo.
“And Tango Makes Three” 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. In April, U.S. District Judge Allen Winsor refused to dismiss their claims that the school board’s decision to remove the book violated the authors’ right to freedom of expression and the student’s right to receive information.
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The other lawsuit, filed by parents of schoolchildren, authors, the publishing company Penguin Random House and the free-speech group PEN America, challenges decisions to remove or restrict access to numerous books. U.S. District Judge T. Kent Wetherell in January rejected motions to dismiss First Amendment claims in the case.
During the past month, the plaintiffs’ attorneys in both cases served notices to take depositions of the school board members and Leonard. But lawyers for the school officials responded by filing the motions for protective orders.
The motions were similar. In addition to making the argument about legislative privilege, they cited what is known as the “apex doctrine.” That doctrine helps shield high-ranking government or business officials from testifying in lawsuits if information can be obtained in other ways.
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“Each of the elected board members are constitutional officials, vested with control of the district,” identical arguments in the two motions said. “As such, they are protected from being called to provide testimony in all but the most unique circumstances. Board members, like agency or corporate heads, are the highest-ranking officials in the board and are vested with constitutional and statutory authority over the district.”
But in the filing Wednesday, attorneys for the plaintiffs in the “And Tango Makes Three” case disputed the arguments about legislative privilege and the apex doctrine.
“At best, the board is a group of part-time officials, of equal rank, who have some responsibility related to the day-to-day operation of district schools, which is not sufficient for the apex doctrine to apply,” the plaintiffs’ attorneys wrote. “The board members’ roles are best analogized to county or city commissioners, who are not considered to be ‘high-ranking’ for purposes of apex.”
Attorneys for plaintiffs in the other case had not filed a response Thursday afternoon to the motion for a protective order.
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