A lawsuit challenging the Escambia County School District’s removal of books from school libraries will move forward toward a jury trial, in a closely watched case that could have implications for parents and students across the state.
After a nearly four-hour long hearing Wednesday morning, U.S. District Judge T. Kent Wetherell II ruled the lawsuit had standing to continue, rejecting a motion to dismiss the suit and an argument from Florida Attorney General Ashley Moody that the district’s actions amounted to “government speech” that should not be subject to First Amendment scrutiny. The judge dismissed a related claim that the school district had violated the Equal Protection Clause.
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“We are disappointed that the equal protection claim was dismissed,” Katie Blankenship, director of PEN America Florida, said after the hearing, “but all in all …This is a major win for the students in Escambia County.”
PEN America was among the plaintiffs who filed the suit, along with the publisher Penguin Random House, several authors, and Escambia County parents and students.
The plaintiffs filed suit in May after nearly a year of controversy over challenged books in Escambia County. Last February, the school board removed three books from school libraries including the children’s book “And Tango Makes Three,” in which two male penguins raise a chick, and the young adult memoir “All Boys Aren’t Blue,” by George M. Johnson, who was also present for Wednesday’s hearing. To date, a total of 1,600 books are pending investigation in the Escambia County School District, according to PEN America.
The plaintiffs claim the school board’s actions violated the First Amendment and are requesting that the district be required to return the removed books and prevent from removing or restricting any more of what they call “targeted books.” They’re also asking to be reimbursed for their legal costs.
The Escambia County School Board established a collective of committees to review challenged books in late 2022 and early 2023. However, in doing so, the board did not specify any timeframe by which the review process must be completed and decided to restrict books to specific grades or remove them altogether while the process was ongoing. The result has been a kind of literary “purgatory,” according to plaintiffs.
In rejecting the motion to dismiss, Wetherell concluded that the school board had not followed its policies by restricting access to all books under review. Books that have not been challenged as “pornographic” should still be accessible during the review process, he said.
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During Wednesday’s hearing, Wetherell asked why the district didn’t allow for a “marketplace of ideas” in school libraries.
“Why shouldn’t libraries have ‘Mein Kampf’ and Anne Frank’s Diary?” he asked.
When the state argued students can be impressionable, the judge interjected “Isn’t that the parent’s job — to say ‘You have this book (about two dads) and that’s not how God made us.’? Why is one parent able to control what everyone reads?”
“Isn’t that the parent’s job — to say ‘You have this book (about two dads) and that’s not how God made us.’? Why is one parent able to control what everyone reads?”U.S. District Judge T. Kent Wetherell II
A majority of the challenged or removed books in Escambia County have LGBTQ themes and/or characters. Some feature stories about Black and brown characters, and hundreds of challenges came from one woman — Santa Rosa County mother and Escambia County teacher Vicki Baggett.
The efforts of Baggett and other book challengers have been bolstered by the group Moms for Liberty, and a series of state laws passed in the last year. These include the “Stop WOKE Act”and the “Florida Parental Rights in Education Act,” otherwise known as the “Don’t Say Gay” bill.
Under state statute, “pornography” is prohibited in school or school library materials. The difficulty is defining what constitutes pornography. Plaintiffs say what is often missing from the discussion around book challenges is context.
Author George M. Johnson’s book “All Boys Aren’t Blue” is the second most banned book in the country and has been at the center of book debates since 2021. It’s a fight worth taking up, they said.
“Even though the book has had a lot of challenges, I’m also seeing how many people the book has helped (or) healed, and so that’s why I know that this fight has to continue as part of the resistance,” Johnson said after the hearing.
The Escambia County School Board has 28 days to challenge the judge’s ruling. Wetherell asked both parties to try mediation before going to trial.
“I’m very troubled by the idea that a citizen, with the best of motives and the worst of motives, can walk into a school and say ‘“Goodnight Moon” has sexual content,’ and it is removed,” Wetherell said.
Blankenship and attorneys for the plaintiffs said they hoped Wetherall’s ruling would send a message to school administrators across the state.
“Judge Wetherell today said ‘Sorry, state, you do not get a blanket government speech doctrine,’” said Blankenship. “‘You don’t get to say and do whatever you want in this context.’ There are some First Amendment considerations, and that is critical. I hope and believe the school board was listening. I’m sure they were and that other school boards across the state are listening, as well.”
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