A federal judge will hear arguments next month in a high-profile challenge to decisions by the Escambia County School Board to remove or restrict access to school-library books.
U.S. District Judge T. Kent Wetherell this week scheduled arguments Jan. 10 in Pensacola on a request by the school board to dismiss the lawsuit, which was filed in May by seven parents of schoolchildren, five authors, the publishing company Penguin Random House and the free-speech group PEN America.
The case is playing out amid wide-ranging debates in Florida and other states about school officials removing or restricting access to books. The plaintiffs in the Escambia County case contend that the school board’s decisions violated First Amendment and constitutional equal-protection rights.
But attorneys for the school board argue Wetherell should dismiss the case for a series of reasons, including that the board has authority to decide which books to purchase and keep on school shelves.
In an Aug. 21 motion to dismiss the case, the attorneys wrote that the board’s “alleged actions constitute government speech, for which plaintiffs enjoy no First Amendment or Equal Protection Clause protection.”
But in a Sept. 18 response, lawyers for the plaintiffs urged Wetherell to reject such arguments. The response said the “restrictions and removals have disproportionately targeted books by or about people of color and/or LGBTQ people.”
“Under the position advanced by the board … school officials have unfettered discretion to remove or restrict access to library books for any reason, including to suppress ideas for nakedly political or partisan reasons,” the plaintiffs’ lawyers wrote.
The lawsuit involves the removal of 10 books and restrictions on access to more than 150 others, according to the plaintiffs’ response. Examples include, “The Bluest Eye,” a novel by Nobel Prize-winning author Toni Morrison, and the book “And Tango Makes Three,” which tells the story of two male penguins who raised a penguin chick at New York’s Central Park Zoo.
The Escambia and Lake County school districts and the State Board of Education also face a separate federal lawsuit about access to “And Tango Makes Three.” U.S. District Judge Allen Winsor, who is based in Tallahassee, held a hearing last week on motions to dismiss that case but had not ruled as of Friday afternoon. The lawsuit’s plaintiffs include the book’s authors, Peter Parnell and Justin Richardson, and an Escambia County third-grade student.
In the broader case before Wetherell, the Escambia school board’s attorneys argue, in part, that the plaintiffs do not have legal standing to proceed with the challenge. For example, the August motion to dismiss the case targeted the standing of the five authors who are plaintiffs.
“Here, the removal of books from shelves (or the mere restriction of access) does not create a constitutional injury. Standing requires ‘that a party seeking review must allege facts showing that he is himself adversely affected,’” the motion said, partially quoting a 1972 U.S. Supreme Court precedent that found the Sierra Club did not have standing in a development-related case. “Books, like trees, do not have standing. And plaintiffs have not identified … any constitutional right to have one’s book on the shelves of a public school library, regardless of the ‘wants’ of the author or the accolades said book has received.”
But lawyers for the plaintiffs disputed such arguments in their September response.
“Here, the author plaintiffs and PRH (Penguin Random House) are, for impermissible reasons, being deprived of the opportunity to have their books available and/or easily accessible in school district libraries, which are uniquely important forums for reaching the intended audiences for those books,” the plaintiff’s lawyers wrote. “That is an injury sufficient for standing purposes.”