Background
PEN American Center, authors, parents, and Penguin Random House sued the Escambia County School Board and others, alleging that the removal of books from school libraries violated the First Amendment. The challenged actions covered nine books removed in 2023 after citizen objections, sixteen books removed in 2025 on the superintendent’s recommendation, and 101 books removed from a state education department list.
When the plaintiffs sought to depose school-board members about their reasons for voting to remove the books, the members invoked legislative privilege and moved to quash the subpoenas and obtain protective orders. The district court denied relief, concluding that the votes applied existing law and board policies to particular books and therefore were administrative rather than legislative acts. The board members and interested parties appealed.
The Court’s Holding
The Eleventh Circuit affirmed. The majority held that legislative privilege did not shield the board members from questioning about their votes to remove specific books because those votes were administrative applications of preexisting policies to specific facts, not acts involving the proposal, formulation, or passage of legislation. The court distinguished the board’s adoption of its book-review policies and its June 2025 directive—which were legislative acts—from its later determinations that particular books fell within those policies.
The court emphasized that voting does not automatically make an act legislative and that discretion in applying a policy is not necessarily policymaking discretion. Its ruling was narrow: it did not decide whether other privileges or discovery rules might limit the depositions, nor did it hold that every decision to stock or remove a library book is administrative. Chief Judge William Pryor dissented, reasoning that the votes were discretionary public-policy decisions protected by legislative privilege.
Key Takeaways
- Local officials bear the burden of showing that the conduct for which they claim legislative privilege was legislative in nature.
- Adopting general book-review policies may be legislative, while applying those policies to identified books may be administrative and subject to discovery.
- The decision permits questioning about the specific removal determinations but not about the board members’ motives for adopting the underlying policies and directive.
Why It Matters
The decision draws a consequential discovery line for lawsuits challenging school-library book removals. School-board members cannot obtain legislative privilege merely because they acted through formal votes or exercised judgment; courts must examine whether the challenged action created policy or instead applied existing policy to particular facts.
The ruling also leaves room for school officials to invoke other privileges or discovery protections and limits its holding to the particular removal process before the court.