By Jim Saunders, The News Service of Florida
TALLAHASSEE — A federal judge last week shielded Escambia County School Board members from having to testify in a legal battle about the removal of the children’s book “And Tango Makes Three” from school libraries.
U.S. District Judge Allen Winsor issued a 10-page order agreeing with the school board that members do not have to give depositions because of what is known as “legislative privilege.”
Attorneys for the book’s authors and a student have sought to question board members about their reasons for removing the book.
“The board voted after hearing public input on a controversial issue about what types of books should be available to public school children,” Winsor wrote. “Its decision did not affect just these plaintiffs (Tango’s authors and one student who sought the book). It made the book unavailable in all Escambia school libraries and thus to all Escambia students. And it made it unavailable forever — or at least until the board decides to change its policy. The decision was thus unlike an individual personnel decision or some other administrative decision that affected only a few people. It was a quintessential policy decision about how best to educate Escambia County children. The decision was legislative, so the legislative privilege applies.”
During a hearing last month, Lauren Zimmerman, an attorney for the plaintiffs, argued, in part, that board members essentially waived their privilege by supplying “thousands and thousands” of documents sought by the plaintiffs and should be forced to submit to questions about their reasons for removing the book.
But Winsor wrote that the school board — not the individual board members — was responsible for providing the documents.
“And although plaintiffs argue that the board members assisted in production, that fact — even if true — does not constitute a privilege waiver,” the Tallahassee-based judge wrote. “This is particularly true where, as here, the board is the custodian of the requested documents and the board members have state-law obligations to provide any public-record documents to the appropriate custodian. At any rate, plaintiffs have cited no binding (legal) authority showing that a witness entitled to legislative privilege waives the privilege and subjects himself to a deposition when documents he created are gathered and produced in litigation.”
Escambia County has become a battleground amid controversy in Florida and other states about school officials removing or restricting access to books.
“And Tango Makes Three” tells the story of two male penguins who raised a penguin chick at New York’s Central Park Zoo. Co-authors Peter Parnell and Justin Richardson and a student identified by the initials B.G. are challenging the removal of the book, contending, at least in part, that it was targeted for depicting same-sex parents raising a child.
In April, Winsor refused to dismiss their First Amendment claims that the school board’s decision to remove the book violated the authors’ right to freedom of expression and the student’s right to receive information.
Meanwhile, another lawsuit filed against the Escambia school district over decisions about books is pending before Pensacola-based U.S. District Judge T. Kent Wetherell.
That lawsuit, filed by parents of schoolchildren, authors, the publishing company Penguin Random House and the free-speech group PEN America, challenges decisions to remove or restrict access to numerous books. The two sides also have battled about legislative privilege in that case.
