UPDATE: New federal lawsuit says Florida book bans are unconstitutional

Since December, Popular Information has detailed the extraordinary number of book bans being pursued in Escambia County, Florida. Much of this activity is being driven by one woman, high school English teacher Vicki Baggett. Over the course of this school year, Baggett has challenged more than 150 books, seeking to remove them from all school libraries. 

Baggett has challenged books like And Tango Makes Three, the true story of two male Penguins, Roy and Silo, who lived in the Central Park Zoo and raised an adopted chick. In an interview with Popular Information, Baggett said she objected to And Tango Makes Three because it exposes students to "alternate sexual ideologies." Baggett said she was concerned "a second grader would read this book, and that idea would pop into the second grader's mind… that these are two people of the same sex that love each other."

In January, Popular Information reported that former and current students accused Baggett of being openly homophobic in class. For example, Baggett allegedly told a tenth-grade student that her sister, who had a girlfriend, was "faking being a lesbian for attention" because "nobody's born that way." 

A materials review committee — which included a librarian, an administrator, an elementary teacher, an elementary parent, and a community member — voted 5 to 0 to keep And Tango Makes Three in Escambia County school libraries. "This story does not have any offensive sexual behavior," the committee wrote. "Having two same-sex parents is not considered abnormal in our society. Many of the students in our district have same-sex parents." Baggett appealed the decision to the Escambia County School Board, arguing that it was imperative to ban And Tango Makes Three to protect students' "innocence until they are more mature." 

In February, the school board overruled the materials review committee and, on a 3-2 vote, voted to ban And Tango Makes Three. “The fascination is still on those two male penguins," school board member David Williams said. "So I’ll be voting to remove the book from our libraries.” The school board has overruled the materials review committee and sided with Baggett to ban nine other books. Dozens of other books remain restricted as Baggett's challenges work their way through the review process. 

On Wednesday, the Escambia County School Board was sued in federal court. The lawsuit, filed by Penguin Random House, five authors, two parents of children affected by the bans, and the non-profit group PEN America, alleges that the school board's actions violate the United States Constitution. 

The lawsuit alleges that the school board banned and restricted books "based on their disagreement with the ideas expressed in those books." In so doing, the school board has "prescribed an orthodoxy of opinion that violates the First and Fourteenth Amendments."

“In Escambia County, state censors are spiriting books off shelves in a deliberate attempt to suppress diverse voices. In a nation built on free speech, this cannot stand,” Suzanne Nossel, the CEO of PEN America, said. “The law demands that the Escambia County School District put removed or restricted books back on library shelves where they belong.”

The First Amendment and school libraries

Public school administrators can not simply remove any book they don't like from school libraries. Their powers are limited by the First Amendment. The limitations are spelled out in the seminal 1983 Supreme Court case of Board of Education v. Pico. In Pico, the court ruled that while school administrators “possess significant discretion to determine the content of their school libraries,” that “discretion may not be exercised in a narrowly partisan or political manner.” This is based on the fundamental Constitutional principle prohibiting "the official suppression of ideas." The new lawsuit argues that the Escambia County School Board is removing or restricting books "based on an ideologically driven campaign to push certain ideas out of schools." 

Students have Constitutional rights. Specifically, the court in Pico explained, "students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding." The court emphasized that the "school library is the principal locus of such freedom." The school library is the place where "a student can literally explore the unknown, and discover areas of interest and thought not covered by the prescribed curriculum." 

The lawsuit notes that, in all ten cases where the Escambia County School Board has banned a book, it "overrode the expert judgment of the district review committee, which had deemed the book educationally appropriate." Moreover, "there are no instances in which the School Board rejected a challenge from Baggett, despite the transparently ideological nature of her challenges." Instead, the school board has "consistently acceded to, and ratified, Baggett’s blatantly political and message-based objections." 

The Fourteenth Amendment and school libraries

The lawsuit also alleges that the book bans in Escambia County violate the Fourteenth Amendment because "because the books being singled out for possible removal are disproportionately books by non-white and/or LGBTQ authors, or which address topics related to race or LGBTQ identity." This violates the Equal Protection Clause, the lawsuit argues, because the "clear agenda behind the campaign to remove the books is to categorically remove all discussion of racial discrimination or LGBTQ issues from public school libraries." 

The lawsuit notes that of "the 10 Removed Books by the School Board, 6 have authors who are non-white and/or identify as LGBTQ, while 9 address themes relating to race or LGBTQ identity, or feature prominent non-white and/or LGBTQ characters." Further, the school board is "currently restricting access to virtually any book that … references the existence of same-sex relationships or transgender persons—without regard to anything else about the book’s contents." 

Last fall, the school board's General Counsel warned the members that they could not remove books “simply because [they] disagree[] with the message of a book or it offends the personal morals of an individual.” But it appears that is exactly what is happening. 

For example, the school board voted to remove the award-winning 2019 picture book When Aidan Became a Brother. Baggett objected to the book as "LGBTQ indoctrination" and "not age appropriate." But there was no basis for the objection other than "the mere fact that it is about a transgender character." Nevertheless, the school board voted to ban the book over the objection of the material review committee. The school board chair said that When Aidan Became a Brother is " just something that should not be in the school district."

Kyle Lukoff, the author of When Aidan Became a Brother, is one of the plaintiffs in the lawsuit. 

The problem with permission slips

While ten books have been banned, there are currently 154 books that are "restricted" in Escambia pending review. To access these books, "a student—who could be as young as 5 years old—must find a librarian, ask the librarian for permission to access a book that has been designated as “pornographic” or otherwise unsuitable for school-aged children, and then wait while that librarian verifies that the student, in fact, has parental permission to access it." This process, the lawsuit argues, "is having a profound chilling effect on students seeking access to the restricted books."

The review process for many of these books has already lasted nearly the entire school year, with no end in sight. Baggett is able to restrict access to virtually any book indefinitely simply by asserting that it is pornographic. She has done just that dozens of times. 

In 2002, a federal court in Arkansas ruled that requiring a permission slip to check out Harry Potter books from a school library was unconstitutional. The court ruled that the Cedarville school district did not have a valid pedagogical reason to restrict the books, and requiring a permission slip to access them violated the students' constitutional rights.