Florida school board asks 11th Circuit to block subpoenas over book ban

ATLANTA (CN) — Members of a Florida county school board asked an 11th Circuit panel Wednesday to quash subpoenas seeking depositions on their motives behind removing and restricting over 100 books within the district’s public libraries.

The seven members of the Escambia County School Board argue that a lower court wrongfully found their votes on various books were administrative, not legislative, and therefore not shielded from examination.

“This case presents a narrow issue of first impression in the circuit and that is whether school board officials should be required to give compelled deposition testimony regarding their decisions to vote to remove or restrict library books,” Jeffrey James Grosholz, representing the school board members, told the three-judge panel. “And because we believe that this is a core policy matter regarding educational suitability, we believe that the legislative privilege protects these decisions.”

The board members say legislative privilege protects their actions from inquiry because Florida law requires them to adopt a policy regarding objections to books by parents or county residents. Alabama and Georgia also impose such requirements.

“And the thing that makes it difficult for me is that not that the board voted to not have books or restrict books or whatever,” U.S. Circuit Judge Andrew Brasher said. “It’s that this was part of an administrative process to adjudicate a complaint.”

“It seems like if this were a case where the board had generated this issue because of just someone coming to a meeting and complaining about it, and the board, like any sort of legislative process, decided to act, then you’d win easily,” the Donald Trump appointee continued.

Grosholz explained that under the school board’s policy, if someone challenges a book to the board, its members are required to review the objected material and allow the public an opportunity to comment before voting on whether to remove it.

“I think it’s important to note that there are a lot of parallels with the legislative process itself,” said Grosholz of the firm Rumberger, Kirk & Caldwell.

Publisher Penguin Random House, writers’ group PEN America, several parents and authors whose books have been removed or restricted, first sued the Escambia County School Board in May 2023.

Ori Lev, representing the groups, said the board’s content decision process was driven by discriminatory animus and violated the First Amendment by suppressing the right to receive information.

As part of the discovery process, the plaintiffs sought to depose the board members regarding their motivation and decision-making behind their votes on the books they determined needed to be removed or restricted, even though they are not named as parties in the lawsuit.

“If the board decided to exercise this authority, which is what the case is here in several instances, that wouldn’t change the nature of the decision from an administrative one into a legislative one,” Lev said.

“Let’s say the board’s debating whether to use a particular history book or biology book because it covers some kind of controversial subject,” U.S. Circuit Judge William Pryor. “They have public hearing about it. They make a decision about that. Would the privilege protect discovery about that?”

“I think it would depend,” Lev, of the Protect Democracy Project, answered.

Pryor, a George W. Bush appointee, seemed to disagree.

“An act is legislative if it is an integral part of the deliberative and communicative processes regarding the consideration and action of a legislative body for matters statutorily placed within its jurisdiction,” Pryor said. “I look at the statute and all of this is statutorily placed in its jurisdiction.”

The process resulting in the mass book removals and restrictions began in May 2022, when a single Escambia County school teacher, Vicki Baggett, led a campaign to remove books from school libraries based on ideological objections to their contents.

Hundreds of books were challenged, mirroring verbatim the rationale and book excerpts posted on websites affiliated with Moms for Liberty, a politically conservative group focused on combating “woke” influence in public schools, targeting these same books across the country.

These books include many classics of American literature, like “Slaughterhouse-Five” by Kurt Vonnegut, “Beloved” by Toni Morrison, and “Forever” by Judy Blume, which the plaintiffs say have been on school library shelves for years, if not decades, without issue.

The plaintiffs cite the Supreme Court’s 1982 decision in Board of Education, Island Trees Union Free School District v. Pico, which said that public schools can bar books from libraries that are “pervasively vulgar” or not right for the curriculum, but they cannot remove books “simply because they dislike the ideas contained in those books.”

A Florida federal court previously declined to dismiss the case, finding the plaintiffs could prevail on their viewpoint discrimination claim, and allowed the lawsuit to proceed to discovery.

U.S. Circuit Judge Jill Pryor, a Barack Obama appointee, joined Brasher and Pryor on the appellate panel. The judges did not indicate when they would make a decision.

Follow @alexbpickett