Plaintiffs ask judge to order banned books returned to school library shelves as lawsuit continues

In a key moment in the broader debate about removing and restricting access to school textbooks, plaintiffs in a lawsuit against the Escambia County School Board this week asked a federal judge to order officials to return seven titles that have been banned for more than a year.

Lawyers for the parent plaintiff also asked U.S. District Judge T. Kent Wetherell to bar school board attorneys from questioning “J.N.,” a 7-year-old who just finished first grade.

Attorneys for the authors, the publishing company, parents and the nonprofit filed a lawsuit last year alleging that the Escambia school board violated the First Amendment and equal protection of the laws by removing 10 books from the school library shelves and limiting access to more than 150 others.

In January, Wetherell allowed the lawsuit to proceed, denying motions to dismiss the First Amendment claims but dismissing the plaintiffs’ equal protection claims.

The school board has argued that it has the right to decide what books should be allowed, and a 2023 bill (HB 1069) that establishes a procedure for members of the public to challenge books helps protect the board from those accusations.

In a motion for a temporary injunction filed Monday, plaintiffs’ attorneys said Escambia officials blocked 1,031 books as part of the county’s review process.

According to the motion, as of June 27, “approximately 178 challenged books remain subject to restrictions, although a decision on the validity of the challenges has not yet been made.”

The motion stated that while the plaintiffs believed the restrictions should be lifted with respect to all books, the request for a preliminary injunction was limited to seven books that “were not challenged on grounds that would require the imposition of restrictions pending consideration under the (school) board’s own policy and should be returned to the shelves immediately while any consideration and resolution of the objections continues.”

As the plaintiffs’ attorneys wrote, the board’s restrictions and removals “disproportionately affected books written by or about people of color and/or LGBTQ people.”

Six of the seven books discussed touch on LGBTQ themes, and one tells the story of a black teenager murdered by a police officer and the impact his death has on the teenager’s friend who witnesses the event.

For example, a challenge to the book “Lady Midnight” flagged a passage that said, “Alexander Lightwood was Magnus’ boyfriend for over a decade. They could marry under the new laws,” according to Monday’s filing.

The seven challenged books — which have been restricted from distribution for more than a year — “were explicitly challenged for their positive portrayal of LGBTQ themes and other viewpoints,” which challengers found objectionable, the motion said.

“For over a year, Defendant Escambia County School Board has restricted access to books in its school libraries based solely on the discriminatory views of local residents who dislike the messages contained in these books. These restrictions violate the First Amendment and must be immediately lifted,” the motion states.

Also this week, plaintiffs’ lawyers argued that Wetherell should bar the school board from interviewing “JN,” plaintiff Ann Novakowski’s daughter.

Novakowski “objects to the board’s request to interview JN, finding it cumulative and unduly burdensome given the fact that the board could obtain the same information from her parent,” according to the motion for a protective order filed Tuesday.

In their motion for a preliminary injunction, the plaintiffs’ lawyers argued that the only books that must be removed under the 2023 state law are those that are challenged for depicting or describing specific types of sexual conduct — which the plaintiffs say the seven books do not.

“Despite the clear language of HB 1069, the board apparently interpreted it to require media specialists at each school to determine whether any books in the school library where the media specialists work contain material that describes or depicts sexual conduct,” the motion reads.

The plaintiffs are the parents, five authors, Penguin Random House and the free speech group PEN American Center, Inc. They are represented by the legal group Protect Democracy Project and the law firm Ballard Spahr LLP.

The lawsuit comes amid controversy in Florida and other states over school officials removing or restricting access to books. In a sign of the controversy, Gov. Ron DeSantis signed a law in April aimed at restricting complaints about the books from people who do not have children in public schools, saying some people who filed mass objections to the books had “made a mockery” of the process.

The case is one of two federal lawsuits over the Escambia County Board’s decision to remove or restrict books. The other case involves the children’s book “And Tango Makes Three.”

The book tells the story of two male penguins who raise a penguin chick at New York City’s Central Park Zoo. The plaintiffs in the case, authors Peter Parnell and Justin Richardson and an Escambia County third-grader, are seeking a preliminary injunction to reinstate the book to the shelves of the Escambia High School Library.

Meanwhile, on June 3, three parents filed a federal lawsuit alleging that the process for challenging books and teaching materials from school libraries set forth in the 2023 law is unconstitutional and discriminates against parents who disagree with the “state’s preferred viewpoint.”

The law “only provides a mechanism for parents to object to the intended use of the materials, but does not provide a mechanism for parents to object to the non-use or discontinuation of use of the materials,” the lawsuit says.

–Dara Kam, Florida News Service

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