Current and former Escambia County School Board members this week went to a federal appeals court as they continue seeking to be shielded from testifying in a long-running legal battle about removing or restricting access to books in school libraries.
Lawyers filed a notice of appeal to the 11th U.S. Circuit Court of Appeals after U.S. District Judge T. Kent Wetherell on Sept. 8 rejected arguments that what is known as “legislative privilege” protected the current and former board members from giving depositions.
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The appeal is the second time that the School Board has gone to the Atlanta-based appeals court after Wetherell has refused to issue protective orders. A three-judge panel of the appeals court in July also refused to shield the school board members, but it did not focus on the legislative privilege issue.
Instead, the panel said it 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. After that ruling, five current and former school board members filed separate motions in August seeking protective orders and to quash subpoenas.
But Wetherell on Sept. 8 reiterated his earlier opinion that they were not shielded from testifying. The earlier opinion was issued in November.
“On the merits, the court finds the board members’ arguments no more persuasive than the identical arguments that defendant (the school board) previously made on their behalf,” Wetherell wrote.
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.
An amended version of the lawsuit filed last month alleged the school board removed or restricted access to books “based on its disagreements with the ideas expressed in those books” and that the decisions “disproportionately targeted books by or about people of color and/or LGBTQ people.”
As part of the case, the plaintiffs have sought to take testimony from school board members. But lawyers for current and former board members Kevin Adams, Paul Fetsko, Patricia Hightower, William Slayton, and David Williams filed the motions last month seeking to be shielded by legislative privilege.
For example, Hightower’s motion said, “it cannot be disputed that the board’s actions in deciding to remove or restrict certain books were legislative in nature. They involved votes by the board members taken after hearing public opinion on the books at issue and subsequent debate and deliberation by the board, as required by law.”
But in his November opinion, 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 fact that school board members must exercise discretion, engage in ‘line-drawing,’ and make ‘policy judgments’ when deciding whether a particular book is educationally suitable, grade-level appropriate, etc., does not change the fact that they are applying policy, not formulating it, when doing so,” the November opinion said.