Federal Judge Cites ‘Legislative Privilege’ to Shield School Board Members from testifying in Book Ban Case

A federal judge has shielded Escambia County School Board members from having to testify in a legal battle about the removal of children’s books from school libraries. United States Magistrate Judge Zachary C. Bolitho on Friday issued a 15-page order agreeing with the school board that members do not have to give depositions because of what is known as “legislative privilege.”

Plaintiffs in the lawsuit include parents, authors, the publishing company Penguin Random House and the free speech group PEN American Center, Inc. The plaintiffs’ lawyers sought to question board members about their reasons for removing the books.




Pointing to previous court rulings, Bolitho’s decision in part said that the school board’s decision to remove or restrict access to books “bore all the hallmarks of traditional legislation.” The board “was making a policy judgment” when it decided that books should not be available to students, the judge wrote. “Indeed, deciding what educational materials should be used in schools and what things are age-appropriate for students to be learning is what school board members are elected to do,” Bolitho’s ruling said.

Plaintiffs in the lawsuit contend that school board decisions to remove or restrict access to library books violated First Amendment and constitutional equal-protection rights. 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 successfully shielded the school board members from testifying in a separate lawsuit challenging the removal of the book “And Tango Makes Three.” The children’s book tells the story of two male penguins who raised a penguin chick at New York’s Central Park Zoo. 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.

–News Service of Florida