First Amendment advocates urge a judge to reject dismissal of their lawsuit against Escambia County for removing books from school libraries

By Jim Saunders ©2023 The News Service of Florida

TALLAHASSEE — With Escambia County a key battleground in a broader debate about school books, plaintiffs in a lawsuit against the county school board urged a federal judge Monday to reject a request to dismiss a challenge to the removal and restriction of library books.

Attorneys for authors, a publishing company, parents and a non-profit organization filed a 51-page document disputing the school board’s arguments that the case should be dismissed. The plaintiffs contend the board violated First Amendment and equal-protection rights in removing 10 books from school library shelves and restricting access to more than 150 others.

“These books include many classics of American literature, which have been on school library shelves for years, if not decades,” the plaintiffs’ attorneys wrote. “The board’s restrictions and removals have disproportionately targeted books by or about people of color and/or LGBTQ people.”

The document was a response to a motion that the school board filed last month arguing that Pensacola-based U.S. District Judge T. Kent Wetherell should toss out the case. In part, the school board contended that the plaintiffs don’t have legal standing to pursue the case. It said, for example, that removal or restriction of books from school libraries does not create a “constitutional injury” to the authors who are plaintiffs.

“The board has not inhibited or prohibited the author plaintiffs’ ability to write, market, and sell their books, even to the board’s students,” the motion said. “The mere fact that their books have been removed or restricted from the board’s shelves does not give the author plaintiffs standing to challenge the board’s decisions and their claims should be dismissed with prejudice.”

The case is one of two federal lawsuits involving decisions by the Escambia County board to remove or restrict books. The other case, which also is filed against the Lake County school district and the State Board of Education, centers on 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. Plaintiffs in the case, authors Peter Parnell and Justin Richardson and an Escambia County third-grade student, are seeking a preliminary injunction to require restoring the book to Escambia school library shelves.

“The school defendants previously purchased, provided, and permitted access to the book in public school libraries,” the lawsuit said. “The school defendants removed the book from public school libraries or restricted access to the book within public school libraries based on the topic discussed, idea or message expressed, and opinion of the author plaintiffs — namely, that same-sex relationships and families with same-sex parents exist; that they can be happy, healthy, and loving; and that same-sex parents can adopt and raise healthy children.”

But in documents filed Friday, attorneys for the Escambia County board and the State Board of Education argued the request for a preliminary injunction should be denied. Attorneys for the state wrote, in part, that “exercise of discretion in the selection of school-library books is government speech” that can be regulated.

“The choice of which message should be spoken in our schools is for democratically accountable governments, not courts or litigants,” the state’s attorneys wrote.

A decision on the motion for a preliminary injunction could be delayed because U.S. District Judge Brian Davis last week transferred the case from Jacksonville in the federal Middle District of Florida to Tallahassee in the federal Northern District of Florida. It was originally filed in the Middle District, which includes Lake County, but was moved to the Northern District, which includes Escambia County.

Disputes have emerged in school districts across Florida and in numerous other parts of the country during the past two years about efforts to remove or restrict access to books. Critics describe the efforts as book banning, while supporters say they are trying to prevent children from being exposed to such things as sexually graphic books.

The Escambia County lawsuit before Wetherell includes as plaintiffs five authors, the publishing company Penguin Random House, seven parents of schoolchildren and the free-speech group PEN America. It details a series of examples of the school board removing or restricting library books after receiving complaints — with the board, at least in some cases, going against the recommendations of review committees.