In a recent ruling, a federal judge shielded Escambia County School Board members from testifying in a lawsuit regarding removing the children’s book “And Tango Makes Three” from school libraries.
Judge Allen Winsor upheld the board members’ claim of “legislative privilege,” preventing them from being deposed about their reasons for removing the book.
“The board voted after hearing public input on a controversial issue about what types of books should be available to public school children,” Winsor wrote.
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“Its decision did not affect just these plaintiffs (Tango’s authors and one student who sought the book). It made the book unavailable in all Escambia school libraries and thus to all Escambia students. And it made it unavailable forever — or at least until the board decides to change its policy. The decision was thus unlike an individual personnel decision or some other administrative decision that affected only a few people. It was a quintessential policy decision about how best to educate Escambia County children. The decision was legislative, so the legislative privilege applies,” he continued.
The plaintiffs, the book’s authors, and a student argued that the board members waived their privilege by providing extensive documentation in the case.
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However, Judge Winsor determined that the school board, not the individual members, was responsible for producing the documents, thus preserving their privilege.
“And although plaintiffs argue that the board members assisted in production, that fact — even if true — does not constitute a privilege waiver,” Windsor wrote. “This is particularly true where, as here, the board is the custodian of the requested documents and the board members have state-law obligations to provide any public-record documents to the appropriate custodian. At any rate, plaintiffs have cited no binding (legal) authority showing that a witness entitled to legislative privilege waives the privilege and subjects himself to a deposition when documents he created are gathered and produced in litigation.”
The lawsuit challenges the removal of the book, alleging that it was targeted due to its depiction of same-sex parents.
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