One thing that is seldom mentioned about the removal of books from Florida classroom libraries: much of this activity may be illegal. 

The school board in Escambia County, Florida, for example, is being sued over their decision to remove And Tango Makes Three and other books from public school libraries. And Tango Makes Three is the true story of two male penguins, Roy and Silo, who lived in the Central Park Zoo and raised an adopted chick. The woman who challenged the book, notorious Escambia County English Teacher Vicki Baggett, told Popular Information she was concerned it exposes students to "alternate sexual ideologies." Baggett said "a second grader would read this book, and that idea would pop into the second grader's mind… that these are two people of the same sex that love each other." The school board appeared to have similar concerns. “The fascination is still on those two male penguins," school board member David Williams said. "So I’ll be voting to remove the book from our libraries.” 

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In May, Penguin Random House, five authors, two parents, and the non-profit group PEN America sued the Escambia County school board in federal court, alleging that the school board's actions violated the United States Constitution. The lawsuit alleges that the school board banned and restricted books "based on their disagreement with the ideas expressed in those books." In so doing, the school board has "prescribed an orthodoxy of opinion that violates the First and Fourteenth Amendments."

The lawsuit is ongoing, and Florida Attorney General Ashley Moody (R) has intervened in the case, arguing that it should be dismissed. In an extraordinary filing earlier this year, Moody argued that the First Amendment does not apply to public school libraries and that school boards can remove any book for any reason — even if the motive is discriminatory. 

In Moody's filing, Florida argues that the purpose of public school libraries is to "convey the government’s message," and that can be accomplished through "the removal of speech that the government disapproves." The issue of what books are allowed to be carried by school libraries, Florida states, should be settled at the "ballot box." According to the state's filing, public school libraries "are not a forum for free expression." 

Florida's argument has serious flaws. Indeed, Florida's filing acknowledges that no court has ruled, as Florida argues, that public school libraries are a form of government speech. The issues with Florida's legal position were detailed in an amicus brief in support of the plaintiffs filed by two dozen law professors. 

Florida is arguing for an expansion of the definition of "government speech" to include public school libraries. Supreme Court Justice Samuel Alito — one of the court's most conservative members — warned in the 1996 case of Matal v. Tam that the concept of "government speech" is "susceptible to dangerous misuse." Alito, writing for the Supreme Court, wrote that "we must exercise great caution before extending our government-speech precedents" because it could be used as a pretext to "silence or muffle the expression of disfavored viewpoints." 

Currently, "the government speech doctrine only applies to state programs in

which the government conveys an official message that the public would recognize

as such." Public school libraries do not exist "to carry official messaging" for the government, the law professors note. Therefore, "[a]pplying the government speech doctrine to school libraries would create a dangerous incompatibility with the nature and purpose of those libraries." 

A federal judge recently rejected a similar argument made by the Arkansas government regarding the removal of books from public libraries. "Defendants are unable to cite any legal precedent to suggest that the state may censor non-obscene materials in a public library because such censorship is a form of government speech," the judge ruled. 

The law professors highlight that there is a Supreme Court case that directly addresses the government's role in curating school libraries, the 1982 case of Island Trees School District v. Pico. In Pico, the Supreme Court recognized that school boards have significant flexibility in determining the contents of school libraries. However, the Supreme Court was clear that the scope of the school board's power over school libraries is limited by the First Amendment. 

Citing previous Supreme Court decisions, the plurality opinion in Pico notes that “students must always remain free to inquire, to study and to evaluate" and the "school library is the principal locus of such freedom." As a result, it is unconstitutional for school boards to remove books from a school library in a "narrowly partisan or political manner.’” This appears to be exactly what is happening. And Tango Makes Three was removed from Escambia County school libraries because it didn't conform to the school board's political opinions about LGBTQ people. 

The plaintiffs in the lawsuit note that the precedent goes beyond Pico: "Every court that has addressed that issue… has rejected the position that libraries — including school libraries — constitute Constitution-free zones in which government officials can freely discriminate based on viewpoint."

Florida realizes that Pico and related cases present a serious challenge to its position. In its filing in support of the Escambia County School Board, Florida argues that Pico should be ignored because it was a plurality decision. But the fact is that, in the 40 years after Pico was decided, the Supreme Court has never repudiated the case.

From "parental rights" to "authoritarianism"

The significance of Florida's filing was recently covered in the Tallahassee Democrat, which interviewed several experts about the implications of the state's arguments. 

Ken Paulson, the director of the Free Speech Center at Middle Tennessee State University, noted that proponents of removing books from school libraries frequently say they are fighting for "parental rights." But "[if] government speech determines what books can be in the library, the government is essentially saying your children can only see the ideas that the government has approved." That is inconsistent, Paulson argues, with parental rights. "It's authoritarianism," Paulson said. 

Deborah Caldwell-Stone, director of the American Library Association's Office for Intellectual Freedom, said Florida's position goes against the fundamental principle "that no government entity can engage in viewpoint discrimination." Caldwell-Stone said, if Florida prevails, it would transform schools from a place dedicated to "preparing individuals… to make decisions about their own lives" to "indoctrination centers for only one viewpoint."