A federal judge has ruled that two authors and a student can pursue First Amendment claims against the Escambia County School Board over the removal of the children’s book “And Tango Makes Three” from library shelves.
But U.S. District Judge Allen Winsor, in a 27-page decision Thursday, dismissed allegations against state education officials and leaders of the Lake County school district.
The Escambia County School Board also had sought dismissal of allegations by the book’s co-authors, Peter Parnell and Justin Richardson, and a student identified by the initials B.G. But Winsor refused to toss out claims that the board violated the authors’ right to freedom of expression and the student’s right to receive information.
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“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 and later expanded to include Escambia County school officials, contends that the book was targeted for “illegitimate, narrowly partisan, political reasons,” as it depicts same-sex parents raising a child.
The case has played out amid controversy in Florida and other states about school officials removing or restricting access to books. As a sign of the controversy, Gov. Ron DeSantis last week signed a bill aimed at limiting book challenges filed by people who don’t have children in public schools, saying some people who filed mass objections to books made a “mockery” of the process.
More than half of the state’s 1,218 book objections during the 2022-2023 school year occurred in Escambia and Clay counties, according to a Florida Senate staff analysis. The objections resulted in the removal of 186 books in the two counties.
Winsor’s ruling Thursday does not resolve the First Amendment allegations against the Escambia school board but allows the case to move forward. He acknowledged questions about how the First Amendment applies to such school book issues.
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“By all accounts, school officials enjoy substantial discretion in determining which books should be available in school libraries,” Winsor, who was appointed to the federal bench by former President Donald Trump, wrote. “But the issue of how and to what extent the First Amendment limits that discretion is surprisingly unsettled.”
Nevertheless, Winsor wrote that the plaintiffs “have plausibly alleged First Amendment claims” under two legal standards.
“Under either standard, plaintiffs have alleged enough to show the removal turned on a disagreement with Tango’s viewpoint. That is enough for now,” he wrote. “Escambia County argues I should conclude the true motivation was otherwise, based on reasons asserted at public meetings. At this stage, though, I must view all allegations in a light most favorable to plaintiffs. Of course, Escambia will have the opportunity to dispute those allegations and to show that Tango’s removal was reasonably related to legitimate pedagogical concerns. But plaintiffs’ allegations are sufficient to survive a motion to dismiss.”
Winsor, however, ruled that the plaintiffs did not have legal standing to pursue claims against state Education Commissioner Manny Diaz Jr. and members of the State Board of Education.
“Plaintiffs’ asserted harm — Tango’s removal — is not traceable to those defendants, and an injunction against those defendants would not likely produce the book’s return,” he wrote.
The lawsuit raised issues about a controversial state law that restricts instruction about sexual orientation and gender identity in school classrooms. But Winsor said the law does not apply to school library books.
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Also, he dismissed allegations against Lake County school officials because the district reversed a decision on restricting access to “And Tango Makes Three.”
“Lake County returned Tango to its libraries, and there is no reason to assume it would remove the book again,” Winsor wrote. “That makes plaintiffs’ request for injunctive relief moot.”
Meanwhile, a separate federal lawsuit filed against the Escambia school board by plaintiffs including authors, the publishing company Penguin Random House and the free-speech group PEN America also continues to play out. That case, which is before U.S. District Judge T. Kent Wetherell, stems from removals or restrictions of various books.
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