Does a School Violate the First Amendment When It Removes a Book from the Library?
By Messer Caparello, P.A.
A federal judge in Tallahassee recently ruled in favor of a Florida school board, rejecting First Amendment claims related to the school board’s removal of a children’s book from school libraries. This is another important ruling for school districts in the free speech arena.
The case involved a lawsuit brought by the coauthors of the book And Tango Makes Three, and an elementary school student, against the Escambia County School Board. The 2005 picture book, which has been frequently challenged, tells the story of two male penguins who raise a penguin chick at the Central Park Zoo.
The plaintiffs claimed that the School Board’s decision to remove the book from its libraries: (1) violated the authors’ First Amendment speech rights by discriminating based on content and viewpoint, and (2) violated the elementary student’s First Amendment right to receive information. Chief U.S. District Judge Allen Winsor dismissed both claims, finding that the School Board did not violate the First Amendment when it took the book off library shelves.
Specifically, Judge Winsor agreed with the School Board’s argument that school library curation does not implicate a student’s or author’s First Amendment rights at all. Judge Winsor relied heavily on a recent en banc decision from the Fifth Circuit Court of Appeals in which the Louisiana-based federal appeals court held that a public library’s book-collection decisions are government speech.
Because the plaintiffs’ First Amendment rights were not implicated, according to Judge Winsor, the authors had no right to speak through the library, and the elementary student had no right to receive the authors’ message through the library. The authors also had no First Amendment right to demand that the library ignore the book’s viewpoint when determining whether to include it in its collection. Judge Winsor concluded that the School Board wins regardless of whether its book curation constitutes government speech: if book curation is government speech, the First Amendment would not reach the School Board’s speech, and if book curation is not government speech, the School Board does not create a forum for others to speak when deciding which books to choose for its libraries.
This ruling is a big win for school districts trying to navigate the shifting First Amendment landscape when it comes to curating their school library collections. The takeaway for districts is that an individual’s First Amendment rights (parent, student, or otherwise) are not implicated when a school library decides which books are appropriate for its students.
The plaintiffs have appealed Judge Winsor’s ruling to the Eleventh Circuit Court of Appeals, based in Atlanta, Georgia.
Case Information: Parnell v. School Board of Escambia County, Florida, Case No. 4:23-cv-414-AW-MAF.