A federal judge has given plaintiffs challenging the removal of books from library shelves in Escambia County public schools the green light to move forward on a First Amendment lawsuit.
Judge T. Kent Wetherell of the Northern District of Florida rejected a motion by the Escambia County School Board to dismiss the lawsuit brought by PEN America, Penguin Random House and several affected authors and parents. The order was issued Jan. 12 after oral arguments on the legal challenge.
In arguing against the school district’s decision to pull books such as The Bluest Eye, Slaughterhouse-Five and The Kite Runner, the plaintiffs asserted two First Amendment counts and a 14th Amendment equal-protection count. Wetherell allowed the plaintiffs to move forward on the First Amendment counts but found that the equal-protection claim, which argued the book removals targeted non-white and LGBTQ authors and students, was not plausible.
“Plaintiffs have not alleged that the policies pursuant to which (the) defendant is making its removal and restriction decisions are discriminatory, nor could they do so because those policies are facially neutral and based on legitimate pedagogical concerns – e.g., ensuring that students do not have access to books containing pornography, that are harmful to minors … and/or that are not grade-level appropriate,” the opinion states.
The school district argued that the plaintiffs’ amended complaint amounted to a “shotgun pleading” containing an excessive number of factual allegations but lacking any logical organization. In addition, the plaintiffs lack standing, and decisions regarding the content of school libraries amount to “government speech” that is immune from First Amendment protections, the district said.
“For the most part, the court finds these arguments unpersuasive,” the opinion said.
The legal standard to evaluate the alleged First Amendment violations within a school library is somewhat opaque, but there is a common legal theme, according to Wetherell.
“... School officials cannot remove books solely because they disagree with the views expressed in the books but … they can make content-based removal decisions based on legitimate pedagogical concerns including things like pornographic or sexual content, vulgar or offensive language, gross factual inaccuracies and educational unsuitability for certain grade levels,” the opinion states.
The judge found that the plaintiffs had put forth plausible allegations that the book removals and restrictions did not pass legal muster.
An Escambia County Public Schools spokesman declined to comment on a pending legal matter, but PEN America, a group that advocates for free expression, agreed with the judge’s opinion.
“(On Jan. 10) we urged the court to vindicate the constitutional rights of students, parents, authors and publishers,” Katie Blankenship, director of PEN American’s Florida office, said in a statement provided to the Florida Record. “We are heartened that Judge Wetherell agreed and that our case can proceed. These books need to be returned to the shelves where they belong, and every day that students are refused access is a day they’re not getting the high-quality education they deserve.”
The lawsuit was filed in spring of last year, but since then the school district has removed more books from shelves due to the passage of other state laws, including House Bill 1069, according to the plaintiffs.
“PEN America released a list of more than 1,600 titles which have been banned pending investigation in Escambia County,” the group said in a news release. “The list, which was originally acquired by the Florida Freedom to Read Project, includes five dictionaries.”