Authors of a book about two male penguins adopting a baby penguin have urged a federal appeals court to reject a decision by the Escambia County School Board to remove the book from library shelves, saying the decision was "unconstitutional viewpoint discrimination."
Attorneys for authors Peter Parnell and Justin Richardson and a student filed a 57-page brief last week arguing the 11th U.S. Circuit Court of Appeals should overturn a ruling by Chief U.S. District Judge Allen Winsor that backed the school board.
The case involves the book “And Tango Makes Three,” which the board voted in 2023 to remove from library shelves. Last week’s brief contended the board removed the book “because it disapproved of the book’s inclusive message about families with same-sex, adoptive parents.”
“Public school librarians may exercise broad discretion in curating library collections, but some reasons for removing books are unconstitutional,” the brief said. “The line between lawful discretion and constitutional violation is drawn by the First Amendment’s prohibition on viewpoint discrimination. A Democratic mayor could not order the removal of public library books because he disagrees with the books’ Republican ideas. A city council could not ban public library books because its secular members disdain religious viewpoints. The (Escambia County School) Board cannot remove Tango because it disagrees with its message of tolerance for same-sex, adoptive parenting.”
The case is one of a series of disputes and lawsuits that have emerged across Florida during the past few years about attempts to remove books from school libraries. Parents, authors, the publishing company Penguin Random House and the free-speech group PEN American Center, Inc. also have filed a broader lawsuit contending that Escambia County book decisions violated the First Amendment. That case remains pending.
“And Tango Makes Three,” which tells the story of two male penguins who raised a penguin chick at New York’s Central Park Zoo, has become a prominent part of a debate. Attorneys for Parnell, Richardson and the student identified by the initials B.G. went to the Atlanta-based appeals court in October after Winsor’s Sept. 30 ruling.
Winsor disputed that the school board’s decision involved unconstitutional viewpoint discrimination. He wrote that the “government does not create a forum for others’ speech by purchasing books for a public library.”
“The author plaintiffs have no First Amendment right to speak through the library, and B.G. has no First Amendment right to receive the author plaintiffs’ message through the library,” the ruling said. “Nor do the author plaintiffs have a First Amendment right to demand the library ignore the book’s viewpoint when determining whether to include it in its collection.”
Winsor added that the ruling “does not, of course, keep the book (or any viewpoint in it) from B.G. or any other student. … The Escambia County School Board has simply decided students wanting this particular book will have to get it elsewhere.”
But last week’s brief pointed to potentially far-reaching implications if the school board’s decision is upheld, saying that allowing “officials to strip public school libraries of books because of ideological disagreement would weaponize the machinery of education to entrench political power and threaten important but vulnerable ideas.”
“A school board could also systematically skew the book selection and removal process to promote specific political views and suppress others. The First Amendment protects not whichever political majority happens to control a school board, but the process of open debate on which self-government depends,” the brief said.
The school board faces a Feb. 17 deadline for filing a brief.