A federal appeals court Tuesday rejected an attempt to shield Escambia County School Board members from testifying in a long-running legal battle about removing or restricting access to books in school libraries.
A three-judge panel of the 11th U.S. Circuit Court of Appeals dismissed an appeal that the board filed after U.S. District Judge T. Kent Wetherell ruled in November that board members must testify because they are not protected by what is known as “legislative privilege.”
Tuesday’s 13-page decision did not focus on whether board members were entitled to legislative privilege. Instead, it said the Atlanta-based appeals court did not have legal “jurisdiction” to consider the case because the school board — not the individual board members — has been the party in district court.
“The board cannot appeal because it lacks standing: the legislative privilege belongs to its members and not the board itself,” the decision shared by Judges Elizabeth Branch, Nancy Abudu and Embry Kidd said. “And the board members failed to participate in the case below (at the district court), meaning they do not fall into the limited circumstances under which a nonparty may appeal an order. We therefore lack jurisdiction to hear this appeal and must dismiss.”
Escambia County has been a battleground in recent years as school districts in various parts of Florida have removed or restricted access to books. Parents, authors, the publishing company Penguin Random House and the free speech group PEN American Center, Inc. filed the lawsuit in 2023, contending that Escambia County book decisions violated the First Amendment.
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As part of the case, the plaintiffs sought to take testimony from school board members.
“According to plaintiffs, the removals were purely based on ideological disagreements with the contents of the books,” Tuesday’s appeals-court decision said. “Such removals on ideological grounds, plaintiffs argued, constitute a government invasion of protected speech rights. Given their theory centered on the motive for the removal of the books, plaintiffs sought to depose the individual members of the board regarding their motivations for their actions.”
But the school board contended that the concept of legislative privilege should shield members from having to testify about their decision-making.
In his November ruling against the board, Wetherell pointed to previous court rulings establishing guidelines for determining whether board members’ decisions to remove or restrict books were legislative acts that should be shielded..
“Under those standards, even though the school board’s decision to remove or restrict a book has some hallmarks of a legislative act (e.g., voting after debate at a public meeting), it is functionally an administrative act,” Wetherell wrote.
A book-removal or restriction decision is “based on specific facts (the content of the book)” and is “more akin to a permitting or employment termination decision,” which courts have held to be administrative acts, because officials are following already-established guidelines, the Pensacola-based judge wrote.
The school board quickly appealed Wetherell’s decision. The underlying lawsuit has been on hold while the appeal was pending.
