A federal judge has ordered that a lawsuit over book bans in the Escambia County, Florida, school district be temporarily stayed while the court considers a motion to dismiss the action. The order comes after lawyers for the school district argued the lawsuit should be tossed on several grounds, including that a policy change effectively moots the litigation.

Specifically, lawyers for Escambia County officials argue that provisions of a recently enacted Florida Law, HB 1069, (effective on July 1) 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.

“Succinctly stated, the recently enacted [change] dooms the Parent Plaintiffs’ claims,” the defense motion to dismiss asserts. “That is, because [the law] now takes final decision-making authority out of the Board’s hands, there is no possibility of the alleged violations recurring; and, because the law now allows the Parent Plaintiffs and their associational representatives to seek review by a special magistrate, the effects of the violation have been eradicated because no final decision as to the Removed Books currently exists.”

In an August 23 order, Judge T. Kent Wetherell granted the defendants request for a temporary stay on discovery, noting that after a “preliminary peek” at the state’s motion to dismiss, the judge found “numerous reasons” why the suit “may not proceed past the pleading stage.” However, the judge scheduled briefs on whether the stay should remain in force pending disposition of the state’s motion to dismiss, with the question set to be fully briefed by mid-September.

The suit, 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, alleges that administrators and school board members in Florida’s Escambia County School District are violating 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 LGBTQ+ community. The suit seeks to have the district's actions declared unconstitutional and to have the banned books returned to library shelves.

The authors involved in the suit include author and children’s book illustrator Sarah Brannen, YA authors David Levithan, George M. Johnson, and Ashley Hope Pérez, and children’s book author Kyle Lukoff.

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 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.”

In an amended complaint, filed on July 24, the plaintiffs acknowledged the law and the policy changes in the defendants' motion to dismiss, but say it was unclear what might change under the new rules. In a footnote, the plaintiffs suggest they may seek leave to file another amended complaint. “Regardless,” the amended brief states, “the restrictions and removals that commenced prior to July 1, 2023 are constitutionally impermissible.”