The Escambia County school board and the authors of the children’s book “And Tango Makes Three” are both urging a federal district judge to grant summary judgment in their favor in a lawsuit challenging a new Florida law that restricts school books with “sexual content.”
The two sides in the lawsuit being litigated in the Northern District of Florida filed their motions for summary judgment – that is, calls for Judge Allen Winsor to rule on the merits of the case after the discovery phase – on Nov. 22. A trial in the lawsuit, which challenges the legality of House Bill 1557, has been scheduled for March of next year.
HB 1557 was passed in 2022 and bars classroom instruction on issues regarding gender identity and sexual orientation in grades kindergarten through three. The law also allows parties to challenge the display of certain books in school libraries. Among the books that were removed from school library shelves in Escambia County was the Tango story, authored by Peter Parnell and Justin Richardson. The picture book describes the raising of a penguin chick by two male penguins.
The lawsuit argues that the book was removed unconstitutionally as a result of anti-LGBTQ+ “viewpoint discrimination” on the part of school board members and should be returned to the school libraries.
“The discovery process has decisively shown that in voting to remove Tango, the removal board members substituted their personal animus regarding LGBTQ+ content and themes for a decision based on the book’s clear educational value, to which the district’s own media and library specialists, district review committee and community attested,” Lauren Zimmerman, a partner at the Selendy Gay law firm, which is representing the plaintiffs, said in an email to the Florida Record.
In September, as a result of another school library book lawsuit, the Nassau County school board entered into a settlement with plaintiffs, including the Tango authors, that led to the Tango book and 35 others pulled from the shelves to be available to students again.
In the Escambia case, the plaintiffs argue that the evidence acquired through the discovery process should be sufficient for a summary judgment in their favor. The evidence includes the expert testimony of Dr. April Dawkins, a former school librarian, who concluded that the removal of the Tango book from six school libraries in the district was not justified.
“A depiction of a same-sex relationship is not inappropriate for children of any age, including but not limited to elementary school students, and does not represent a legitimate pedagogical basis to remove a book from a public school library, which is intended to provide access to diverse views, experiences and populations,” Dawkins testified.
But the Escambia County school board argues that authors have no First Amendment right to demand that their works be on the shelves of public school libraries.
“This is so because a local school board, as the duly elected governmental body responsible for the content of the school library, has the First Amendment right to choose what message is conveyed through its curation of the library collection,” the defendants’ motion states. “The board has the statutory duty to ensure the materials available in its libraries are suitable and appropriate for the grade level and age group served by their libraries.”
The motion also says the plaintiffs have failed to provide sufficient evidence that a constitutional violation took place.
“... Even if the court found the school library shelf was a forum for private speech, plaintiffs cannot meet their burden in demonstrating a constitutional violation,” the motion states. “Plaintiffs can offer no evidence that the decision to remove Tango from elementary school libraries was not reasonable or was based on impermissible viewpoint discrimination.”
The motion also points out that the school board decided to keep the book “Drama” by Raina Telgemeier on library shelves even though a district teacher objected to the book’s “indoctrination of LGBTQ.”