Florida school board: toss Penguin Random House book ban lawsuit

In a move that signals the intensification of a battle over literary freedom, the Pensacola News Journal has reported that Escambia County School Board in Florida called upon a federal judge to dismiss a lawsuit mounted by a coalition of authors, a publishing powerhouse, concerned parents, and a non-profit entity. This lawsuit thrusts into the spotlight the contentious debate surrounding the book ban within school libraries in Florida.

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Emerging against the backdrop of vehement statewide and nationwide debates concerning the regulation of educational texts, the lawsuit claims that the Escambia board has committed infringements upon First Amendment rights and equal-protection privileges, with a seeming predilection for targeting books that depict racial minorities and LGBTQ individuals. Yet, the school board has swiftly riposted with a robust 36-page legal submission filed in a federal court in Pensacola, arguing that it retains the prerogative to dictate the literary compositions permissible within educational institutions. A newly enacted state law, the board argues, provides them a fortified bulwark against the plaintiffs’ allegations.

Earlier this year, Governor of Florida Ron DeSantis called book bans “a hoax”. However, PEN America went through his claims step-by-step to suggest otherwise.

First Amendment clash: Florida County School board’s defence against book ban allegations

Central to the school board’s argument is their contention that the plaintiffs lack the legal standing to prosecute this case. The school board maintains that the restriction or elimination of books from school libraries does not inflict a “constitutional injury” upon the author plaintiffs. In the motion filed by the school board, it is emphasised that the removal or restriction of these books has not impaired the plaintiffs’ capacity to compose, market, and vend their literary works, even to the very students governed by the board. This, they maintain, does not warrant the plaintiffs’ assertion of standing to challenge the board’s decisions, leading to the conclusion that their claims should be peremptorily dismissed.

Furthermore, the school board casts aspersions on the plaints of the parents who have chosen to take up arms. This asseveration finds its basis in the newly enacted state law, House Bill 1069, which took effect on July 1. This legislative development empowers parents to solicit the intervention of a special magistrate if they object to the school board’s literary choices. This magistrate, in turn, would confer recommendations to the State Board of Education, which will ultimately culminate in a final resolution. The school board also insists that the implementation of this new legal framework has rendered moot the parents’ concerns, as the decision-making prerogative has been extricated from their hands.

Read: PEN America warns publishers: avoid banning books over moral outrage

The school board’s motion also underscores the school district’s assertion that the enactment of House Bill 1069 has ushered in an era where final decision-making no longer rests with the board itself. This, the board asserts, categorically prevents the reoccurrence of the alleged violations. Moreover, the inclusion of provisions that enable parental plaintiffs and their associates to seek review from a special magistrate has eradicated the deleterious effects of the alleged infringements, as no definitive conclusion about the fate of the removed books presently subsists.

What is the book ban lawsuit against Escambia County School Board in Florida?

The core of the lawsuit, which underwent revision the previous month, features an array of characters —five authors, the publishing behemoth Penguin Random House, parents of schoolchildren, and the free-speech advocate PEN America. This legal offensive offers a detailed dossier of instances where the school board has proscribed or curtailed access to library books, often disregarding the recommendations proffered by review committees. The lawsuit asseverates that this removal and restriction of books has disproportionately targeted authors who delve into the experiences of people of colour and the LGBTQ community. Hence such actions, the lawsuit contends, promote a dogma that violates both the First and Fourteenth Amendments.

Citing the 14th Amendment’s equal-protection rights, the lawsuit denounces the apparent imposition of a doctrinal viewpoint through the disproportionate targeting of literature pertaining to racial minorities and LGBTQ individuals. In line with this, the lawsuit vehemently states that the First Amendment debars a school district from relegating books to obscurity or restricting their accessibility on the grounds of political or ideological discord with the concepts they articulate. The lawsuit further argues that the Escambia County School Board’s actions are emblematic of precisely this, effectively decrying the removal of books from libraries and the imposition of restricted access as an ideologically motivated endeavor to banish particular ideas from the realm of education.

Florida county school board book ban list

Among the works spotlighted in the lawsuit as being either eradicated or subject to potential proscription are:

• “Uncle Bobby’s Wedding” by plaintiff Sarah Brannen
• “All Boys Aren’t Blue” by plaintiff George M. Johnson
• “Two Boys Kissing” by plaintiff David Levithan
• “When Aidan Became a Brother” by plaintiff Kyle Lukoff
• “Out of Darkness” by plaintiff Ashley Hope Pérez

US District Judge T. Kent Wetherell, a former state appeals-court judge appointed to the federal bench by former President Donald Trump, has been assigned the case. Subsequently, no hearing date has been scheduled, according to the online docket. As the legal tussle ensues, disputes over book removal and access restrictions have erupted not only across various parts of Florida but also throughout the nation as seen in Wyoming where a library director was dismissed, usage of ChatGPT to ban books, the restriction of library cards to minors in Mississippi, and in Georgia, where a teacher was sacked for reading about gender fluidity to her class. Critics, labelling these endeavours as book banning, engage in a contentious dialogue with proponents who assert that their intention is to shield children from literature perceived as overtly explicit or controversial.

Lindsay Durtschi, an Escambia County Public Schools parent and plaintiff in the lawsuit, asserts that the school board is engaged in a form of viewpoint censorship. With the evaluation of a list of challenged books burgeoning to over 200, Durtschi calls for the district’s “community standards” to be a mirror of the diverse student body the county serves. While she continues her fight, she underscores the importance of collective responsibility, aiming to amplify voices within a population often hesitant to come forward due to perceived risks.

Why are book bans not being considered a violation of the First Amendment?

Book bans can indeed be considered a First Amendment issue, particularly when they involve governmental entities like public schools. The First Amendment of the United States Constitution protects the freedom of speech and expression, which encompasses the right to access and distribute information, including written material such as books. When a government entity, like a school board, attempts to ban or restrict access to certain books, it raises questions about potential violations of individuals’ First Amendment rights.

The crux of the issue also lies in the concept of “prior restraint.” Prior restraint occurs when the government takes action to prevent speech or expression before it occurs, such as by banning a book from being read or distributed. Courts have generally been cautious about allowing prior restraints, as they can infringe upon individuals’ rights to receive and impart information.

However, courts have also recognised that there can be legitimate reasons for restricting certain types of speech, especially in specific contexts like schools. The US Supreme Court’s decision in the case of “Tinker v. Des Moines Independent Community School District” established that students’ First Amendment rights are not completely unfettered in a school setting. As a result, schools have a legitimate interest in maintaining a conducive educational environment and can place some restrictions on students’ speech to achieve that goal.

Read: Top librarian fired by board as book ban compared with Nazi Germany

In the case of book bans in schools, courts typically evaluate whether the restriction is content-based or content-neutral. Content-based restrictions, which target the specific ideas or viewpoints expressed in the book, are subject to stricter scrutiny and require a compelling government interest to justify the ban. Content-neutral restrictions, on the other hand, may focus on factors such as age-appropriateness or disruption to the learning environment, and are subject to less strict scrutiny.

When evaluating whether a book ban violates the First Amendment, courts will consider factors like the context of the ban, the justifications provided by the school board, and the impact on students’ rights. While there is a tension between protecting students’ right to access information and the school’s duty to maintain a suitable educational environment, courts typically strive to strike a balance that respects both interests.

Consequently, book bans can indeed implicate First Amendment issues, but the outcome of any legal challenge depends on the specific circumstances, including the nature of the ban, the reasons behind it, and the context in which it occurs.

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