Judge weighs school board ‘privilege’ in book fight

TALLAHASSEE , Fla. — As legal challenges to book removals continue to mount, attorneys on Wednesday sparred in federal court about whether Escambia County School Board members should be forced to testify about a decision to bar the children’s book “And Tango Makes Three” from school libraries.

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School board attorneys told U.S. District Judge Allen Winsor that the board members are shielded by what is known as “legislative privilege” from having to testify.

But attorney Lauren Zimmerman, who represents plaintiffs challenging the book removal, contended that legislative privilege is “an extremely narrow doctrine” that would only apply to questions “that are squarely as to the motivations” of the school board members who voted to remove the book.

Zimmerman also argued board members essentially waived their privilege by supplying “thousands and thousands” of documents sought by plaintiffs and should be forced to submit to questions about their reasons for removing the book.

“Government officials are unlikely to admit outright that they violated the law,” Zimmerman, an attorney with the New York-based Selendy Gay PLLC firm, said, referring to a court decision in an unrelated case.

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But Winsor seemed skeptical, saying that legislative privilege would “preclude” plaintiffs’ lawyers from asking questions that seek to determine the officials’ motivations.

The judge asked attorney Jeffrey Grossholz, who represents the school board, about the issue.

“The vote to remove ‘And Tango Makes Three’ is legislative in nature. There are multiple reasons for this,” Grossholz said.

He acknowledged, however, “This is an unsettled area of law.”

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“And Tango Makes Three” co-authors Peter Parnell and Justin Richardson and a student identified by the initials B.G. filed a lawsuit challenging the removal of the book, contending, at least in part, that it was targeted for depicting same-sex parents raising a child. The book tells the story of two male penguins who raised a penguin chick at New York’s Central Park Zoo.

In April, Winsor refused to dismiss the plaintiffs’ 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. Winsor in July rejected an attempt to shield the Escambia board members from depositions but allowed the board to file a revised request.

Grossholz on Wednesday pointed to appellate court rulings about legislative privilege as “parallels” to the more-novel litigation over book removals.

The board “has a legislative duty” under Florida law to “maintain and be responsible for all materials” in school libraries “and then to provide a policy under which interested citizens can object to the content in these library books,” Grossholz, an attorney with the Rumberger Kirk & Caldwell PA firm, told Winsor.

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“And then it must, and that’s in the law, it must provide a resolution,” he said.

“That doesn’t seem to help you. It seems to hurt,” Winsor said.

Grossholz said that “the board is not mechanically applying” its policy.

“The end result is an expression of the district’s legislative authority,” he argued.

But Zimmerman contended that the board’s process is “administrative,” and therefore not covered by legislative privilege. She also acknowledged the lack of case law on the issue involving school books.

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“The assertion of legislative privilege here is grossly inappropriate,” Zimmerman said. “We’re seeing book removals all over the country. We’ve seen book removals in the past. I don’t know of any case in which any government official has asserted that their decisions over books in a library pursuant to a policy is subject to the legislative privilege.”

Winsor repeatedly pressed Zimmerman about what the plaintiffs’ lawyers would need from the school board members if he decided that legislative privilege applies.

“If the privilege does exist … what’s left to do?” he asked at one point.

The judge did not rule Wednesday and said he would allow lawyers from both sides to file supplemental briefs over the next week.

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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.

Escambia County has become a battleground amid the controversy. Lawyers for Escambia officials also are trying to shield the school board members from testifying in a separate lawsuit filed by parents of schoolchildren, authors, the publishing company Penguin Random House and the free-speech group PEN America challenging decisions to remove or restrict books.

Plaintiffs have filed at least three other federal lawsuits in Florida challenging restrictions on access to books or processes of removing books from school libraries.

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