Florida School Board Settles Book Censorship Case, Restores Access to Banned Books

Photo for illustrative purposes only.Photo byRon DeSantis, Facebook | Nick Fewings, Unsplash

Is a book called “And Tango Makes Three”, which is based on the true story of two male penguins raising a chick together in a zoo, ‘obscene’? The authors, several parents, and New York law firm Selendy Gay did not think so when they took action against the Nassau County School Board for banning “And Tango Makes Three”, along with 35 other books, and managed to settle the case on September 11, 2024.

The issue started between September 8 and 27 of last year, when a private advocacy group, Citizens Defending Freedom, made a claim that a total of 36 books in the Nassau County public school’s library contained “obscene material in violation of” Florida’s Obscenity Statute.

Around November 9, 2023, the Nassau County School Board publicly announced that they removed “And Tango Makes Three”, “Almost Perfect”, and “Ghost Boys” from Nassau County libraries “on the basis of ‘lack of circulation’”. The School Board also publicly declared that it was restricting or removing 33 other books around the same time for containing “obscene material”.

While the School Board did make public statements after the fact, it did not have a public meeting beforehand or give notice for the private meeting that led up to its decision to restrict and remove the books.

According to the official settlement document, the authors of “And Tango Makes Three”, Peter Parnell and Justin Richardson, and parents Sarah Moerman and Toby Lentz disagreed with the School Board’s decision, finding that none of the 36 affected books should have been removed under the Obscenity Statute. They believed that each book should be restored to Nassau County libraries to the same “library location and student grade level accessibility” that the books had been before they were removed.

So, in response to the School Board’s book ban, the authors and parents took legal action on May 15, 2024, in the United States District Court for the Middle District of Florida. In doing so, they claimed that the School Board’s removal of “And Tango Makes Three” based on its point of view violated the First Amendment of the United States Constitution and that removing all 36 books violated "Florida’s Constitution, Florida Statute § 1006.28(2)(a)5., and Florida Statute § 286.011 (the 'Sunshine Law')".

Just over two months later, on July 19, 2024, the School Board filed its response, denying all allegations made against it. However, ultimately, both parties wanted to settle the dispute and proposed a joint motion to dismiss the case without prejudice and retain jurisdiction, which the United States District Court granted.

The settlement was official as of September 11, 2024, and its most significant terms are as follows:

1. The School Board agreed that “And Tango Makes Three” does not violate the Obscenity Statute, is appropriate for kids of any age, and has educational value.
2. “And Tango Makes Three” will be immediately restored without age restrictions to Nassau County libraries.
3. A total of 22 of the other books, listed on pages 24 and 25 of the whole document, will also be restored to Nassau County libraries in the same condition, library location, and grade level accessibility as they were in November of 2023 by September 13, 2024.
4. “The Perks of Being a Wallflower”, one of the removed books, will be returned and made available to children in grade level 9 and up by September 13, 2024.
5. The remaining 12 books, listed on page 26 of the whole document, will be returned and made available for students 18 years old and older or those who have typed or handwritten guardian or parental consent to check one of these books out from the library. The consent note must meet five requirements, including having the parent or guardian's signature. This also must be in effect by September 13, 2024.
6. The School Board must form an official committee to review the aforementioned 12 books by October 31, 2024. Any meetings that this committee has must be public and open for comments. Any final decisions must be open to appeal as well.
7. Within five business days of September 11, 2024, the School Board must file a notice that “And Tango Makes Three” has been restored, along with the list of 22 books and “The Perks of Being a Wallflower”, as agreed upon.
8. By October 31, 2024, the School Board must also file a notice that the other list of 12 books had been restored as agreed upon.
9. By December 31, 2024, counsel from the School Board must provide a status report to counsel representing the authors and parents. The report has to list whether each of the 12 books was fully restored, restored with age restrictions, completely removed, or pending further review from the appointed committee.

On September 12, 2024, law firm Selendy Gay published a statement about the case, saying that it was a “high stakes battle” with the goal of the “restoration of…significant works by Toni Morrison, Jonathan Safran Foer, Alice Sebold, Jodi Picoult and Erika Sanchez, which address racism in America, as well as the life experiences of immigrants, first-generation Americans, trans Americans and other underrepresented communities and individuals”.

The law firm also found that the School Board’s actions were in “violation of Florida’s public disclosure statutes”, as it was “unlawfully removing public school library books during private, closed doors meetings". However, the settlement “undoes the School Board’s use of unlawful pretextual bases for removing public school books that have viewpoints with which the Board and its representatives disagrees”.

Even still, this settlement could be considered a victory on the state level, especially after the trilogy of house bills that Governor DeSantis has signed into law over the past three years, starting in 2022. Many people believe that these laws add up to a state-wide book ban controversy.

House Bill 1467, effective as of July 1, 2022, can be credited with fueling the controversy. Among other things, this law requires that library books made available to students are free of pornography and provides that there should be a “regular removal or discontinuance of books…, including…because of an objection by a parent or resident of the county”.

House Bill 1069, effective as of July 1, 2023, further defined concepts introduced by House Bill 1467. It was “designed to protect children in public schools” and “includes requirements for age-appropriate and developmentally appropriate instruction for all students in prekindergarten through grade 12”. In part, this law “enhances the process for transparency and review of…materials available to” public school students and “the process for parents to limit” and object to “student access to materials”, and requires that materials allegedly containing “obscene depictions” must be suspended and reviewed.

House Bill 1285, effective as of July 1, 2024, provides additional specificity to the previous two laws. While it discusses an array of changes within Florida’s public and postsecondary schools, it more notably defines a new limit that a “resident of the county who is not the parent or guardian of a student…may not object to more than one material per month”.

DeSantis signed House Bill 1285 into law on April 16, 2024, after a statement published to his official website on February 15, 2024, where he attempted to chalk the book ban controversy up as a hoax and called on the Florida legislature to amend the 2022 and 2023 laws to avoid activists abusing them.

DeSantis claimed that it is a “false narrative” to say that Florida is banning books. Instead, he says that Florida is empowering “parents to object to obscene materials in the classroom” and some people have decided to “abuse this process in an effort to score cheap political points”.

Due to this, DeSantis instructed the Department of Education (DOE) to prohibit those in “school leadership positions from intentionally depriving students of and education by politicizing the book review process” and told legislature to make policies that prioritizes parents’ opinion and limits ill-intended protests made by citizens without children earning an education in the state of Florida.

DeSantis doubled down on the book ban being a myth, saying that it is the DOE’s job to verify that all school materials are up to a set standard, that not all books are age-appropriate or have educational value, and that as of the time that his statement was published, no dictionaries or encyclopedias had been removed from any county in Florida.

He said that he signed House Bill 1467 into law to require “school districts to provide transparency in the selection of instructional materials”, protect “children from indoctrination”, and “give parents the ability to see the materials their children have access to at school”. Then, he signed House Bill 1069 into law to “strengthen Florida’s commitment to parental rights in education”, “give parents a voice”, and “keep our children from having access to sexually explicit materials”.

By the time of the statement, House Bill 1285 had already been in the works since January 5, 2024, but it was not presented to DeSantis until April 15, 2024, two months after the statement. Despite House Bill 1285’s step away from what DeSantis says is just abuse of laws intended to protect kids and empower parents, several officials at Selendy Gay think that the Nassau County case was just the tip of the iceberg.

Selendy Gay’s Lauren Zimmerman stated, “This settlement—a watershed moment in the ongoing battle against book censorship in the United States—significantly restores access to important works that were unlawfully removed”.

Selendy Gay’s Faith E. Gay believes that people “who seek to force their will on others by denying access to viewpoints with which they disagree, are not entitled to decide what books our children may read in public school libraries”. She also says that while this case was a win, “the fight is far from over. With numerous book banning cases percolating in the courts, we look forward to continuing to protect the First Amendment rights of students, parents, and authors throughout the United States”.

Emphasizing these points, while the Nassau County School Board was able to acknowledge that “And Tango Makes Three” has educational value, is not obscene, and is safe for children of all ages to read, Selendy Gay says that Florida’s Escambia County School Board is still unable to. So, it seems that from the law firm’s perspective, the book ban controversy might continue to hold water in Florida and in the United States as a whole.
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Article by Ema Tibbetts