Appeals Court Rules Escambia School Board Members Can Be Deposed Over Library Book Removals

Escambia County School Board members cannot invoke legislative privilege to avoid being questioned under oath about why they removed books from school libraries, a federal appeals court ruled Monday, Oct. 19. In a 2-1 decision, a panel of the U.S. Court of Appeals for the 11th Circuit agreed with the trial judge that the board members were acting as administrators, not lawmakers, when they voted to pull the books.

The ruling clears a procedural obstacle that has stalled the lawsuit for more than a year. The case, PEN American Center v. Escambia County School Board, was filed in 2023 in federal court in Pensacola by the free speech group PEN America, publisher Penguin Random House, authors, parents and students. It argues the Pensacola-area district violated the First Amendment and the equal protection clause by removing or restricting access to books, most of them, the plaintiffs say, by or about people of color or LGBTQ people.

What the court decided

Legislative privilege protects lawmakers from having to testify about their legislative acts, such as proposing and passing laws. The question before the court was whether a school board's vote to remove a specific library book counts as that kind of act.

Judge Andrew Brasher, joined by Judge Jill Pryor, said it does not. Writing for the majority, Brasher said the board's book decisions resembled "nothing about" what a legislator does. Under 11th Circuit precedent, he wrote, an act is "more apt to be administrative in nature" when "the facts utilized in making a decision are specific, rather than general, in nature." The book votes, the Pensacola News Journal reported, were in the majority's words a "mere administrative application of existing policies."

The majority noted the process the books went through: an internal review committee recommended keeping them, and the books were removed after an appeal to the school board.

Brasher stressed the limits of the decision. "Our decision today is a narrow one. We do not address whether other privileges or discovery rules may warrant quashing these subpoenas, curtailing the depositions, or the like," he wrote. "Nor do we suggest that every decision to stock or remove a book is administrative in nature." He added that legislative privilege serves important interests that "warrant robust protection."

A sharp dissent from the chief judge

Chief Judge William Pryor wrote a 22-page dissent arguing that board members exercise discretion over a matter of public policy when they vote to remove books, and that the privilege should apply. "In doing so, it ignores the common law that the Supreme Court has explained defines the privilege. It misreads our precedents too," he wrote of the majority.

Pryor faulted the majority for relying on precedents about personnel and zoning decisions, which he said look nothing like an elected board deciding a political issue such as removing a controversial book. He also argued the outcome turns on who raises an objection. "It also defies common sense to say that the removal of a library book, when prompted by a parental objection, is administrative even though the Board members could have raised the same objection about the same book on their own initiative," he wrote, according to the News Journal.

The majority answered that Pryor's research relied on arguments the parties never raised, including what it called "an obviously distinguishable 1880 decision from California," and that the circuit's own precedents did not support his position.

How the case got here

The removals at issue began after a teacher and the superintendent challenged books on grounds the lawsuit quotes as "extreme sexual content," "LGBTQ agenda," "race-baiting," "graphic rape scenes" and "language." The plaintiffs have sought for years to depose the board members who voted. The deposition fight has moved through the courts in several rounds:

The members who sought protection in 2025 were Kevin Adams, Paul Fetsko, Patricia Hightower, William Slayton and David Williams, according to the News Service of Florida. In his November 2024 opinion, Wetherell wrote that a book decision "has some hallmarks of a legislative act (e.g., voting after debate at a public meeting)" but "is functionally an administrative act," because members are applying policy rather than making it.

At the July arguments, board attorney Jeffrey Grosholz said the members' decisions on educational suitability were "a core policy matter" protected by the privilege. Ori Lev, special counsel for the advocacy group Protect Democracy, which represents the plaintiffs, pointed out that the board had deposed students in the case, including a 7-year-old. "You would think that if what's good for the goose is good for the gander, that they would have the same courage a 7-year-old would," Lev said then.

An attorney for the school board did not respond to the News Journal's request for comment on the ruling.

Why it matters beyond Escambia

Escambia has been one of Florida's most active districts in removing books, and the fight has been costly. The district had spent nearly $1 million defending this case and a related one by the end of May 2025, WUSF reported. The appeals ruling may also guide other Florida boards facing challenges over book decisions, since it addresses when local officials can be made to explain their votes under oath.

The pressure on districts has not eased. Florida Education Commissioner Henry Mack recently sent a memo directing districts to address what he called deficiencies in how some review library and instructional materials under a 2023 state law, naming Clay, Escambia and Nassau as districts that have already removed or discontinued substantial numbers of titles. He wrote that delaying until a district becomes the subject of the next public controversy is not acceptable.

What's next

The case returns to Wetherell in Pensacola, where depositions of the board members can move forward, subject to any other objections the majority left open. The school board could also seek review by the full 11th Circuit. The Pensacola News Journal reported that the lawsuit is not likely to move quickly until two related appeals are resolved.

One is the authors' challenge to Escambia's removal of "And Tango Makes Three," a picture book about two male penguins raising a chick, in which U.S. District Judge Allen Winsor sided with the school board last year. The other is an appeal of an August 2025 ruling by a federal judge in Orlando that the 2023 law used to remove books from school libraries is overbroad and unconstitutional; the 11th Circuit heard arguments in that case in April.