School authorities demand removal of seven-year-old after book dispute

In defending itself against a constitutional challenge to the removal and restriction of books from the school library, the Escambia County School Board argued Tuesday that it should have the opportunity to record the testimony of a 7-year-old student who is the subject of the lawsuit.

In a 20-page court document, the panel’s lawyers asked U.S. District Judge T. Kent Wetherell to deny a request for a temporary restraining order that would protect the child, identified by the initials JN, from having to testify at a deposition.

The document states that JN is the plaintiff through her mother, Ann Novakowski, but the mother could not adequately testify about the child’s efforts to borrow removed or blocked books.

“The child has unique knowledge of her preferences and desires and, more importantly, of her efforts to obtain these books from her school library,” the panel’s lawyers wrote. “The panel should not be required to rely solely on the alleged recounting of what JN told her, nor should this court rely solely on the alleged recounting of what JN told her, particularly when there is no evidence that JN herself is unable to testify.”

The document also states that testimony is needed to determine whether JN, who recently completed first grade, is legally competent to participate in the case.

“Plaintiffs cannot transfer the legal standing of JN’s mother – which is itself disputed – to JN; JN’s legal standing must arise on its own,” the document states.

But in the July 2 motion for a preliminary injunction, Novakowski’s lawyers countered those arguments, writing that the school board “has not made any meaningful distinction between the legal and factual issues it seeks to resolve through the testimony of JN and Plaintiff Novakowski. Nor has the board identified a single factual or legal issue that it believes is solely JN’s responsibility and on which it cannot question Plaintiff Novakowski, who filed this action as JN’s legal representative.”

“It is unnecessary to require JN to testify when her mother, who is filing this action on JN’s behalf, is available to testify and when the Committee is requiring the same testimony from her,” the motion states. “In fact, Plaintiff Novakowski is filing this action on behalf of her minor child because JN was unable to file the action herself. In this context, it makes no sense for JN to be required to testify separately.”

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

A separate lawsuit challenges Escambia County’s removal of the children’s book “And Tango Makes Three,” which tells the story of two male penguins raising a baby penguin at New York’s Central Park Zoo. The lawsuit alleges, at least in part, that the book was targeted because it depicts same-sex parents raising a child.

The motion for a temporary restraining order states that the school board has removed or restricted the availability of books that JN wants to borrow from her school library, including “And Tango Makes Three,” and listed the books “When Aidan Became a Brother,” which is about a transgender boy, and “Uncle Bobby’s Wedding,” which is about a same-sex marriage.

The motion said that questioning JN in this case “would do little more than impose an undue burden.”

“Young JN would have to spend time away from family and friends preparing for her testimony and facing questions from opposing counsel – an experience that is enormously difficult and stressful for adults, let alone a seven-year-old,” the motion states.

But school board lawyers argued Tuesday that the board “has the right to defend itself against the plaintiffs’ claims. To do so, it is necessary to examine the truthfulness and credibility of the plaintiffs, including JN.”

“The Board is not indifferent to the realities involved in investigating a minor and understands that doing so may involve some inconvenience,” the Board’s attorneys wrote. “However, JN is a named party in this action. She, through her mother, chose to sue the Board. Plaintiffs cannot use JN’s status as a minor and a student in the Escambia County School District as a sword to challenge the Board’s actions, only to then use her minority status as a shield to either prevent her from participating in the action she brought or to prevent the Board from defending itself against Plaintiffs’ claims.”

–Jim Saunders, News Service of Florida