By Dara Kam ©2024 The News Service of Florida
TALLAHASSEE — In a key battleground in the larger debate about removing and restricting school books, plaintiffs in a lawsuit against the Escambia County School Board asked a federal judge this week to order officials to return to the shelves seven titles that have been off-limits for over a year.
Lawyers for a parent who is a plaintiff also asked U.S. District Judge T. Kent Wetherell to block the school board’s attorneys from taking the deposition of “J.N.,” a 7-year-old who just completed first grade.
Attorneys for authors, a publishing company, parents and a non-profit organization filed the lawsuit last year, contending the Escambia school board violated First Amendment and equal-protection rights in removing 10 books from school-library shelves and restricting access to more than 150 others.
Wetherell in January allowed the lawsuit to proceed, rejecting motions to dismiss First Amendment claims but dismissing plaintiffs’ equal-protection allegations.
The school board has argued it has authority to decide what books should be allowed and that a 2023 law (HB 1069) that set up a process for book challenges by members of the public helps shield it from the allegations.
In a motion for a preliminary injunction filed Monday, lawyers for the plaintiffs said Escambia officials had restricted 1,031 books under the county’s review process.
As of June 27, “some 178 challenged books remain restricted, although no decision has been made about the validity of the challenge,” according to the motion.
The motion said that, while the plaintiffs believe restrictions should be lifted on all books, the request for a preliminary injunction was limited to seven books that “have not been challenged for reasons that would require their restriction pending review under the (school) board’s own policies, and should be returned to the shelves immediately, while any review and resolution of the challenges proceeds.”
The board’s restrictions and removals “have disproportionately targeted books by or about people of color and/or LGBTQ people,” the plaintiffs’ lawyers wrote.
Six of the seven books at issue include LGBTQ subject matter, while one tells the story of a Black teenager who is killed by a police officer and the impact on the teen’s friend, who witnessed the death.
In an example, a challenge to the book “Lady Midnight” flagged a passage that said: “‘Alexander Lightwood was Magnus’s boyfriend for over a decade. They could’ve gotten married under the new laws,” according to Monday’s motion.
The seven books at issue — which have been restricted for over a year — “were clearly challenged based on their positive portrayal of LGBTQ themes and other viewpoints” that challengers found objectionable, the motion said.
“For well over a year, defendant Escambia County School Board has restricted access to books in its school libraries based on nothing more than discriminatory viewpoint-based challenges by local residents who dislike the messages in those books. These restrictions violate the First Amendment and they need to end immediately,” the motion said.
Also this week, lawyers for the plaintiffs argued Wetherell should block the school board from taking the deposition of “J.N.,” daughter of plaintiff Ann Novakowski.
Novakowski “opposes the board’s request to depose J.N. as cumulative and unduly burdensome, given that the board can elicit the same information from her parent,” a motion for a protective order filed Tuesday said.
In the motion for a preliminary injunction, the plaintiffs’ lawyers argued that the only books required to be removed under the 2023 state law are those that are challenged on the basis of depicting or describing specific kinds of sexual conduct — which, the plaintiffs said, the seven books do not include.
“Notwithstanding the plain text of HB 1069, the board has apparently interpreted HB 1069 as requiring media specialists in each school to determine whether any books in the media specialist’s school’s library contain material describing or depicting sexual conduct,” the motion said.
The plaintiffs include parents, five authors, the publishing company Penguin Random House and the free speech group PEN American Center, Inc. They are represented by the legal advocacy group Protect Democracy Project and the Ballard Spahr LLP firm.
The lawsuit has played out amid controversy in Florida and other states about school officials removing or restricting access to books. As a sign of the controversy, Gov. Ron DeSantis in April signed a bill aimed at limiting book challenges filed by people who don’t have children in public schools, saying some people who filed mass objections to books made a “mockery” of the process.
The case is one of two federal lawsuits involving decisions by the Escambia County board to remove or restrict books. The other case 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.
Meanwhile, three parents on June 3 filed a federal lawsuit alleging that the process laid out for challenging school-library books and instructional materials in the 2023 law unconstitutionally discriminates against parents who disagree with “the state’s favored viewpoint.”
The law “only provides a mechanism for a parent to object to the affirmative use of material; it does not provide a mechanism for a parent to object to the lack of use or discontinued use of material,” the lawsuit said.
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