After a lengthy hearing on January 10, a federal judge has ruled that a federal lawsuit over book bans in Escambia County, Fla., can proceed.
In an order from the bench, judge T. Kent Wetherell denied a motion filed by lawyers for the Escambia County School Board to dismiss the case, holding that while school officials may have the power restrict access to properly challenged books, they cannot simply pull books they disagree with or find objectionable from schools and school library shelves. The defendants now have 28 days to respond to the court’s decision.
The lawsuit was first filed on May 16 in the Northern district of Florida in Pensacola by PEN America, Penguin Random House, and a group of authors and parents, with an amended complaint filed on July 24. The suit alleges that administrators and school board members in the Escambia County School District are in violation of the First Amendment as well as the 14th Amendment—the Equal Protection Clause of the Constitution—because the books being singled out for removal are “disproportionately books by non-white and/or LGBTQ+ authors” and often address “themes or topics” related to race or the LGBTQ community.
The suit seeks to have the district's actions declared unconstitutional and the banned books returned to library shelves, as well as to cover costs and legal fees. The authors involved in the suit include author and children’s book illustrator Sarah Brannen; YA authors George M. Johnson, David Levithan, and Ashley Hope Pérez; and children’s book author Kyle Lukoff.
Notably, the initial complaint lays out how a single language arts teacher at a local high school kicked off what would become “a widespread—and largely successful—campaign to restrict access to books” throughout the Escambia County School District, resulting in “four waves of book removals by the School Board.” The complaint alleges that 197 books were targeted for removal, of which “at least 42% have authors who are non-white and/or identify as LGBTQ, while approximately 59% address themes relating to race or LGBTQ identity.”
“We are gratified that the Judge recognized that books cannot be removed from school library shelves simply because of the views they espouse,” said Ballard Spahr attorney Lynn Oberlander, who is representing the plaintiffs, in a statement. “We are looking forward to moving forward with this case to protect the constitutional rights of the plaintiffs.”
The decision to let the case proceed comes after a winding legal road thus far. In an August 23 order, Wetherell granted a motion by defendants for a temporary stay on discovery, noting that, after a “preliminary peek” at the school board’s motion to dismiss, the judge found “numerous reasons” why the suit “may not proceed past the pleading stage.” But in September, the judge lifted the stay, noting that after a “more comprehensive review” of the case, he was “less convinced that the amended complaint will be dismissed in its entirety.”
While a written order has not yet been released, Wetherell rejected the plaintiffs’ claims under the 14th Amendment’s Equal Protection Clause in his decision from the bench. However, the judge found that the plaintiffs do have standing under the First Amendment, crucially rejecting an argument by the plaintiffs that has surfaced in other book banning cases—that “the government speech doctrine” limits First Amendment protections and gives school officials virtually full discretion to decide which books students can access in schools and libraries. Wetherell held that the First Amendment does apply when books are removed based on ideology or viewpoint.
Meanwhile, lawyers for the school board have also noted that the suit could put school officials on a collision course with a recently enacted Florida Law, HB 1069, which expressly grants school boards full authority over “the content of all instructional materials and any other materials used in a classroom, made available in a school or classroom library, or included on a reading list,” and sets out “a special magistrate” process to ultimately decide any disagreements.
The ruling in Florida is yet another legal victory for freedom to read advocates, and the second for publisher Penguin Random House as a plaintiff in two weeks. On December 29, a federal judge in Iowa blocked key provisions of SF 496, a recently passed Iowa state law that sought to ban books with sexual content from Iowa schools and to bar classroom discussion of gender identity and sexuality for students below the seventh grade. PRH is a plaintiff in that suit as well.
In a July 29 opinion and order, judge Timothy Brooks preliminarily enjoined key provisions of Act 372, Arkansas's newly passed “harmful to minors” law, which would have exposed Arkansas librarians to criminal liability for making allegedly inappropriate books accessible to minors. And on August 31, a federal judge in Austin, Tex., preliminarily enjoined HB 900, that state’s controversial book rating law. Those cases are currently being appealed.
