Judge: School board’s library book removal didn't violate free speech

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A federal judge has sided with the Escambia County School Board in its decision to remove a children’s book about two gay penguins raising a chick from school libraries.

In a Sept. 30 decision, Judge Allen Winsor of the Northern District of Florida found that the school board’s decision to pull the book “And Tango Makes Three” from the shelves did not violate free-speech rights. Winsor’s order follows the filing of the complaint in 2023 by the book’s co-authors, Peter Parnell and Justin Richardson, and a young student who was unable to check out the book from her school library.

“... There is no view of the facts that could support plaintiffs’ claim that the board engaged in unconstitutional viewpoint discrimination or otherwise violated the First Amendment with respect to ‘Tango,’” Winsor said in his order granting summary judgment to the school board.

The school board also argued that a school library’s curation decisions do not add up to violations of the authors’ or any student’s First Amendment rights. The speech at issue in the case is government speech, according to the board.

“It argues, with some force, that a school library’s decision on which books to collect (or not collect) constitutes its own expression about which books belong in the library or which books students should be reading,” Windsor said. “If the collection constitutes government speech, then plaintiffs’ speech rights are not implicated.”

He pointed out that a recent decision by the Louisiana-based Fifth Circuit Court of Appeals supported the idea that public libraries’ collection decisions fall under the government-speech doctrine.

But the Selendy Gay law firm, which represented the plaintiffs, called the district court’s decision one in a series of actions that have stifled the First Amendment’s guarantees of freedom of speech and expression. The law firm filed an appeal of the judge’s ruling last week.

“The board removed ‘And Tango Makes Three’ – a cherished, educator-recommended children’s book – solely because of its positive portrayal of a same-sex couple starting a family together,” Lauren Zimmerman, the plaintiff’s attorney and a Selendy Gay partner, said in a statement emailed to the Florida Record. “That is unconstitutional censorship, plain and simple.”

Zimmerman pointed out that Winsor’s order relied on an appeals court ruling from another part of the nation.

“Under that reasoning, school boards have sweeping power to ban books in school libraries for ideological and partisan reasons, including when driven by anti-LGBTQ+ bias,” she said.

The law firm argues that public school libraries have a core duty to give children access to diverse perspectives and not simply amplify the views of a few local politicians.

“This ruling undermines the rights of students to learn and of authors to be heard everywhere,” Zimmerman said. “We will continue fighting on behalf of our clients to vindicate their First Amendment rights and to stop government censorship.”

Winsor emphasized, however, that the school board’s decision does not keep “Tango” out of the hands of the student plaintiff, identified only as “B.G.,” or any other student.

“The Escambia County School Board has simply decided students wanting this particular book will have to get it elsewhere,” the judge said. “In that way, what the board ‘has done here is what libraries have been doing for two centuries: decide which books they want in their collections.’” 

He also said that this principle does not distinguish between book removals and public library actions to reject additions.