Florida school officials say they should be protected in book lawsuits

Escambia County School Board members and the district’s superintendent are facing two lawsuits alleging First Amendment violations, arguing that they should be barred from testifying about decisions to block or restrict access to school library books.

Attorneys for the school board and Superintendent Keith Leonard filed motions this month for temporary restraining orders to prevent them from having to testify in the federal lawsuits.

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Attorneys for the plaintiffs in one of the cases, which seeks to remove the children’s book “And Tango Makes Three,” hit back in a lawsuit filed Wednesday, calling the request for a preliminary injunction an “untenable position.”

“Defendant’s motion seeks to protect from disclosure some of the most important evidence in this litigation: the motives of the five board members who unlawfully removed ‘And Tango Makes Three’ from the district’s public school libraries and the superintendent who assisted the board in doing so,” the filing states.

In the motions, attorneys for the school board and Leonard pointed to issues such as the legal concept of “legislative privilege.”

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“Because the board acts as a unit, the motives of its individual members are not only irrelevant but protected by legislative privilege,” the motion in the And Tango Makes Three case states. “Florida law prohibits any private deliberations of the board — in fact, all deliberations on Tango in the Sunshine took place during a public meeting — and forcing board members to testify would be irrelevant, unduly burdensome and needlessly cumulative.”

Escambia County has become a battleground as controversies rage in Florida and other states over school officials removing or restricting access to books. “And Tango Makes Three,” for example, tells the story of two male penguins raising a baby penguin at New York’s Central Park Zoo.

The co-authors of “And Tango Makes Three,” Peter Parnell and Justin Richardson, and a student identified by the initials BG, are challenging the book’s removal. They claim, at least in part, that it was targeted because it depicts same-sex parents raising a child. In April, U.S. District Judge Allen Winsor rejected their claims that the school board’s decision to remove the book violated the authors’ right to free speech and the student’s right to receive information.

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The other lawsuit, filed by parents of schoolchildren, authors, publisher Penguin Random House and free speech group PEN America, challenges decisions to block or restrict access to numerous books. U.S. District Judge T. Kent Wetherell in January denied motions to dismiss First Amendment claims in the case.

Last month, attorneys for the plaintiffs in both cases served deposition notices to school board members and Leonard, but attorneys for school officials responded by filing motions for preliminary injunctions.

The motions were similar. In addition to the argument of legislative privilege, they invoked the so-called “apex doctrine.” This doctrine protects high-ranking government or business officials from testifying in court proceedings if the information can be obtained through other means.

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“Each of the elected board members is a constitutional officer entrusted with oversight of the district,” the two motions state in identical arguments. “As such, they are protected from being called to testify in all but the most extraordinary cases. Board members, like heads of agencies or corporations, are the highest ranking officers on the board and possess constitutional and statutory authority over the district.”

But in the lawsuit filed Wednesday, attorneys for the plaintiffs in the “And Tango Makes Three” case disputed arguments about legislative privilege and the apex doctrine.

“At best, the board is a group of part-time, peer-level officials who have some responsibility related to the day-to-day operations of the county schools, but this is not enough for the apex doctrine to apply,” the plaintiffs’ attorneys wrote. “The roles of the board members are best compared to those of county or city commissioners, who are not considered ‘senior’ under the apex doctrine.”

Attorneys for the plaintiffs in the other case had not filed a response to the motion for a preliminary injunction as of Thursday afternoon.

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