First Amendment fight over children’s book in school libraries expands in Florida

Miami Herald |By Jim Saunders | August 28, 2023

TALLAHASSEE A First Amendment fight about access in school libraries to the children’s book

“And Tango Makes Three” has expanded to include the Escambia County school system. Attorneys for the book’s authors and a third-grade student filed a revised federal lawsuit Friday that, in part, seeks an injunction to require restoring the book to Escambia school library shelves. The lawsuit also is filed against the Lake County school district and the State Board of Education amid a wide-ranging debate in Florida about school boards restricting or removing books.

“And Tango Makes Three” tells the story of two male penguins who raised a penguin chick at New York’s Central Park Zoo. The lawsuit, initially filed in June against Lake County school officials and the State Board of Education, contends that the book has been targeted for “illegitimate, narrowly partisan, political reasons.” The lawsuit also raises issues about a controversial state law that restricts instruction about sexual orientation and gender identity in schools.

“The school defendants previously purchased, provided, and permitted access to the book in public school libraries,” said the revised lawsuit, filed in the federal Middle District of Florida. “The school defendants removed the book from public school libraries or restricted access to the book within public school libraries based on the topic discussed, idea or message expressed, and opinion of the author plaintiffs — namely, that same-sex relationships and families with same-sex parents exist; that they can be happy, healthy, and loving; and that same-sex parents can adopt and raise healthy children.”

The revised lawsuit was filed after attorneys for the state and the Lake County district early this month urged U.S. District Judge Brian Davis to dismiss the initial version. They argued that the case was moot because the Lake County district reversed a decision on restricting access to the book after receiving legal guidance from the Florida Department of Education.

Davis had earlier rejected the plaintiffs’ request for a preliminary injunction against the Lake County district because of the mootness issue.

The plaintiffs in the revised lawsuit are authors Peter Parnell and Justin Richardson, a married couple who live in New York and have a daughter, and a third-grade Escambia County student identified by the initials B.G.

In the revised lawsuit, attorneys for the plaintiffs alleged, in part, that the Lake County School Board had adopted a resolution “designed solely to moot this litigation” and that its actions, along with restrictions on access to other books, “demonstrate a clear likelihood that the Lake County defendants’ unconstitutional conduct will recur.”

But much of the revised case focuses on Escambia County, where the school board voted in February to remove “And Tango Makes Three” from libraries, according to the lawsuit.

The lawsuit alleges First Amendment violations based on “content and viewpoint discrimination” and violation of B.G.’s “right to receive information.”

“B.G. desires to read Tango and would read Tango if it were available in her school library,” the lawsuit said. “She asked her father to help her check out Tango at her elementary school. She and her father have been unable to do so because the book is no longer available in B.G.’s school library.”

The lawsuit also targets the law restricting instruction about sexual orientation and gender identity in schools. The law, passed in 2022, barred instruction about sexual orientation and gender identity in kindergarten through third grade — and was expanded this year to prevent such instruction in pre-kindergarten through eighth grade.

Attorneys for the plaintiffs argued that the law is “unconstitutional and therefore void to the extent that it requires the removal or restriction of any books — such as Tango — in school libraries.”

The Escambia County district also is embroiled in a separate federal lawsuit filed by five authors, the publishing company Penguin Random House, parents of schoolchildren and the free-speech group PEN America because of the removal or restriction of library books.

Attorneys for the Escambia school board last week asked U.S. District Judge T. Kent Wetherell to dismiss the case. They argued the school board has authority to decide what books will be allowed in schools and that a new state law helps shield it from the constitutional allegations. That law allows parents to request appointment of a special magistrate if they object to school-board book decisions, with the magistrate making recommendations to the State Board of Education.

Also, for example, the school board’s request to dismiss the case said removal or restriction of books from school libraries does not create a “constitutional injury” to the authors who are plaintiffs.

“The board has not inhibited or prohibited the author plaintiffs’ ability to write, market, and sell their books, even to the board’s students,” the motion said. “The mere fact that their books have been removed or restricted from the board’s shelves does not give the author plaintiffs standing to challenge the board’s decisions and their claims should be dismissed with prejudice.”