A battle over school library shelves

Two men in a gay marriage are contesting a Florida school district’s so-called “ban” of a picture book they authored about a family of penguins with two dads. After a federal court last month upheld the school district’s decision to remove the book, Peter Parnell and Justin Richardson on Oct. 3 appealed the case. They hope the 11th U.S. Circuit Court of Appeals will force the district to return their book to school library shelves.

In 2022, the Escambia County School Board in Florida placed restrictions on the children’s book And Tango Makes Three, which follows the story of two male penguins who adopt, hatch, and raise Tango, a penguin chick at New York’s Central Park Zoo. The school board decided not to allow students in kindergarten through third grade to check out the book, citing Florida’s 2022 Parental Rights in Education Act, dubbed by critics as the “Don’t Say Gay” law.

The authors, along with several students and their parents, filed a lawsuit in 2023, claiming the school discriminated against them and arguing its actions were “based solely on disagreement with the book’s viewpoint.” They argued the school violated their First Amendment rights, saying that the book’s placement on the shelves was part of the authors’ right to freedom of expression and the student’s right to receive information.

Chief U.S. District Judge Allen Winsor rejected this argument in a September ruling. He found that schools can choose what books to have and not have on their shelves, saying that doesn’t “implicate any students’ or authors’ First Amendment rights at all.”

“The government does not create a forum for others’ speech by purchasing books for a public library,” Winsor wrote in his 18-page ruling. “By definition, libraries must have discretion to keep certain ideas—certain viewpoints—off the shelves.” He said that this library merely did what libraries have done for centuries: decide what books are of “requisite and appropriate quality” to be on their shelves. Winsor added that the school’s removal didn’t bar students from the ideas in the book.

“This does not, of course, keep the book (or any viewpoint in it) from B.G. or any other student,” Winsor said, using initials to refer to a student plaintiff in the case. “The Escambia County School Board has simply decided students wanting this particular book will have to get it elsewhere.”

Individuals can’t force the government to provide certain information in school or public libraries, said Mat Staver, founder and chairman of Liberty Counsel. “If that were the case, every author could actually file suit against any library, forcing their book to stay in the library, or to be admitted to the library,” added Staver.

Libraries choose to remove books for a variety of reasons, including budget, community needs, age-appropriateness, or even the condition of the book, he said. But judges have “wrongly” ruled in some cases to force libraries to put books back on their shelves, Staver noted.

In August, U.S. District Judge Carlos Mendoza struck down a Florida law that protected children from pornographic material and books with sexual conduct in school and classroom libraries. Mendoza ruled that the law was overbroad and unconstitutional. “The right to speak and the right to read are inextricably intertwined,” he wrote. “Authors have the right to communicate their ideas to students without undue interference from the government. Students have a corresponding right to receive those ideas.”

Similar cases across the country are still pending. The 10th U.S. Circuit Court of Appeals in April upheld a lower court’s ruling to temporarily put “banned” books on a Colorado school district’s shelves while the underlying case proceeds.

Last week, the American Civil Liberties Union of South Carolina sued over a state law protecting public school students in kindergarten through 12th grade from material depicting sexual conduct. In February, several book publishers challenged an Idaho law that similarly regulates access to age-appropriate books.

In May, the 5th U.S. Circuit Court of Appeals determined that officials removing books in Llano County, Texas, simply did so to cultivate appropriate books. The ruling has been appealed to the Supreme Court.

Laura Hernandez, senior counsel at Regent University’s Robertson Center for Constitutional Law, said lawsuits like these task judges with deciding how to distinguish whether libraries are removing books because of educational value and age-appropriateness or because of viewpoint discrimination. “This issue is going to continue to be very contentious, which increases the likelihood that the Supreme Court will eventually have to weigh in,” Hernandez said.

The parent advocacy group Moms for Liberty regularly coaches parents on how to curate age-appropriate literature for children. Co-founder Tina Descovich rejected the term “book bans,” arguing libraries don’t have room for every book in the world—they’ve always had the right to pick and choose what they offer.

“There are no books banned in the United States of America. You can always legally write the book, you can print the book, publish the book, you can sell the book,” Descovich said. “People have the right to buy the books. Cultivating a public school library is not a book ban.”