In a significant victory against Escambia County School Board’s removal and restriction of books from public school libraries as unlawful viewpoint discrimination, on January 10, 2024, a federal judge ruled that our lawsuit challenging the removals could move forward. The ruling is a huge win for our litigation against the school board on behalf of PEN America, publisher Penguin Random House, authors, parents and students — and makes clear that the First Amendment applies to public school libraries. 

On January 10, the judge heard oral argument on the School Board’s motion to dismiss the complaint. Ruling from the bench, the judge held that all of the plaintiffs — parents, students, authors, PEN, and Penguin Random House have standing to challenge the School Board’s removal of books, and that our clients have adequately alleged a First Amendment violation. The judge indicated an opinion will follow.

Critically, the judge rejected a radical argument put forward by the State of Florida, which was permitted to participate in the argument: that the Constitution does not apply at all to a school board’s decision to remove books from school libraries. The State argued that such decisions constitute “government speech,” a position that would allow school boards to make decisions completely at odds with the Constitution and educational purposes, such as removing all books authored by people of color.

The Escambia County School Board’s effort to exclude certain ideas from their school libraries by removing or restricting books, some of which have been on the shelves for decades, came despite the recommendations of review committees that the books remain on shelves.

“After targeting books centering people of color and LGBTQ+ individuals and ignoring its own review committees’ recommendations, the government baldly asserted that this could not be viewpoint discrimination because the First Amendment does not apply to school libraries,” said Shalini Goel Agarwal, Protect Democracy counsel. “Today’s ruling makes clear that they are wrong.”

Ensuring that students have access to books on a wide range of topics and expressing a diversity of viewpoints is a core function of public education that prepares students to be thoughtful and engaged citizens.

PEN America has tracked the growth of a nationwide educational censorship campaign to impose ideological control over the freedom to read, learn, and think. This campaign — dubbed the “Ed Scare” by PEN America — is evident in the rapid spread and passage of educational gag orders, and the unprecedented rise of book bans. In the 2022-23 school year, 3,362 instances of book bans in US public school classrooms and libraries. 

Protect Democracy worked alongside co-counsel Ballard Spahr, LLP in the litigation. For more information on the suit, click here.