The Escambia School Board wants to depose a 7-year-old in its defense of a lawsuit over books it removed from school libraries

By Jim Saunders ©2024 The News Service of Florida

TALLAHASSEE — As it tries to fend off a constitutional challenge to removing and restricting school library books, the Escambia County School Board on Tuesday argued that it should be able to take a deposition of a 7-year-old student who is part of the lawsuit.

Attorneys for the board, in a 20-page court document, urged U.S. District Judge T. Kent Wetherell to reject a request for a protective order that would shield the child, identified by the initials J.N., from having to testify in a deposition.

The document said J.N. is a plaintiff through her mother, Ann Novakowski, but that the mother cannot adequately testify about the child’s efforts to check out books that have been removed or restricted.

“The child has unique knowledge about her likes and desires and, more importantly, her efforts to obtain these books from her school library,” the board’s attorneys wrote. “The board should not be required to, and indeed this court should not, rely exclusively on J.N.’s mother’s alleged recitation of what J.N. communicated to her, particularly when there are no indications that J.N. herself is incompetent to testify.”

The document also said a deposition is needed to establish whether J.N., who recently finished first grade, has legal standing to be part of the case.

“Plaintiffs cannot bootstrap the standing of J.N.’s mother — itself disputed — onto J.N.; J.N.’s standing must sink or swim on its own,” the document said.

But in the July 2 motion for a protective order, lawyers for Novakowski disputed such arguments, writing that the school board “has not articulated a meaningful distinction between the legal and factual issues they seek to establish through the testimony of J.N. and plaintiff Novakowski. Nor has the board identified a single factual or legal issue that it believes is uniquely in J.N.’s possession and on which it cannot question plaintiff Novakowski, who filed this lawsuit as a legal representative for J.N.”

“It is unnecessary to require J.N. to undergo a deposition when her mother, who is bringing this action on J.N.’s behalf, is available to testify and when the board seeks the same testimony from her,” the motion said. “Indeed, plaintiff Novakowski brings this action on behalf of her minor child because J.N. could not file the lawsuit herself. In that context, it does not make sense that J.N. needs to be separately deposed.”

Escambia County has become a battleground amid controversy in Florida and other states about school officials removing or restricting access to books. The lawsuit, filed by parents of schoolchildren, authors, the publishing company Penguin Random House and the free-speech group PEN America, alleges that board decisions to remove or restrict numerous books violated First Amendment rights.

A separate lawsuit, meanwhile, challenges Escambia County’s removal of the children’s 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. That lawsuit contends, at least in part, that the book was targeted for depicting same-sex parents raising a child.

The motion for a protective order said the school board removed or restricted books, including “And Tango Makes Three,” that J.N. wants to check out from her school library. It also listed the books “When Aidan Became a Brother,” which involves a transgender boy, and “Uncle Bobby’s Wedding,” which involves a same-sex marriage.

The motion said deposing J.N. in the case “would accomplish little more than imposing an undue burden.”

“It would require young J.N. to devote time away from family and friends to prepare for her testimony and to face questioning by opposing counsel in deposition — an experience that is enormously difficult and stressful for adults, let alone a 7-year-old,” the motion said.

But school board attorneys argued Tuesday that the board is “entitled to defend itself against plaintiffs’ claims; doing so requires probing the veracity of the standing and credibility of the plaintiffs, which includes J.N.”

“The board is not unmoved to the realities that involve examining a minor, and that there may be some discomfort associated with this,” the board’s attorneys wrote. “However, J.N. is a named party to this suit. She, through her mother, chose to sue the board. Plaintiffs cannot use J.N.’s status as a minor and student within the Escambia County school district as a sword by which to challenge the actions of the board, only to then use her minority status as a shield to prevent either her participation in the suit she brought or the board from defending itself from plaintiffs’ claims.”