PEN AMERICAN CENTER INC v. ESCAMBIA COUNTY SCHOOL DISTRICTPEN AMERICAN CENTER INC v. ESCAMBIA COUNTY SCHOOL DISTRICT
Case Information
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION
PEN AMERICAN CENTER, INC., et al.,
Plaintiffs, vs. Case No.: 3:23cv10385/TKW/ZCB ESCAMBIA COUNTY SCHOOL BOARD,
Defendant.
_____________________________/
ORDER
Currently before the Court is Defendant Escambia County School Board’s Renewed Motion for Protective Order Asserting Legislative Privilege. (Doc. 107). Plaintiffs have responded in opposition (Doc. 113), and the Court held an oral argument hearing (Doc. 133). The matter is ripe for resolution. For the reasons below, the motion will be granted.
I.
This case involves a First Amendment challenge to the Escambia County School Board’s decision to remove or restrict access to certain library books. Plaintiffs allege that the books were improperly removed or restricted based on viewpoint discrimination. Plaintiffs have noticed the depositions of the five elected School Board members. On June 21, 2024, the School Board moved for a protective order to prevent the depositions. (Doc. 82). The motion argued, among other things, that legislative privilege barred the depositions. On July 19, 2024, the Court denied that motion without prejudice to the School Board filing a new motion stating that the individual members wished to assert the privilege. (Doc. 98).
The School Board has now re-filed the motion with supporting affidavits from the five members expressing their desire to invoke legislative privilege. (Doc. 107). Plaintiffs have responded in opposition, arguing that legislative privilege does not apply. [1] (Doc. 113).
II.
Legislative privilege is an “important” doctrine with “deep roots in
federal common law.”
In re Hubbard
, 803 F.3d 1298, 1307 (11th Cir.
2015). It protects legislators “from deterrents to the uninhibited
discharge of their legislative duty for the purpose of the public good.”
Pernell v. Fla. Bd. of Governors
, 84 F.4th 1339, 1343 (11th Cir. 2023)
(cleaned up). And it reflects that “it simply is not consonant with our
scheme of government for a court to inquire into the motives of
legislators.”
Bogan v. Scott-Harris
,
Not everything a legislator does is a legislative action; some things
are administrative in nature. The privilege, however, only applies to
legislative actions. Thus, the privilege’s applicability often hinges (as it
does here) on whether a legislator’s action was legislative or
administrative. “Whether an act is legislative turns on the nature of the
act, rather than on the motive or intent of the official performing it.”
Bogan
,
Although these words are easy enough to type, they have proven harder to apply. Thus, it has been said that the “line dividing legislative and administrative decisions is not always clear.” Parnell v. Sch. Bd. of Lake Cnty. , No. 4:23-cv-414/AW/MAF, Doc. 191 at 3 (N.D. Fla. Sept. 24, 2024). That is perhaps true because of the variety of factual scenarios where legislative privilege has been raised. Over the years, however, there have been several recurring scenarios. Those recurring scenarios have resulted in some things being well recognized as legislative and some things being well recognized as administrative.
On the well-recognized-as-legislative side, are cases involving
budgetary decisions, the elimination of government offices/positions, and
the regulation of land use.
See Bogan
,
The current case does not involve hiring and firing employees,
eliminating offices/positions, zoning enforcement, land use regulations,
or budgeting. So the question of whether the School Board was acting
legislatively or administratively cannot be answered simply by pointing
to a prior Eleventh Circuit case. Instead, the Court must look at what
the School Board did and determine whether its actions “bore all the
hallmarks of traditional legislation,”
Bogan
,
III.
Under Florida law, school boards are “responsible for the content of all instructional materials and any other materials . . . made available in a school or classroom library . . . .” Fla. Stat. § 1006.28(2)(a)1. Florida law further provides that each “school board must adopt a policy regarding an objection by a parent or a resident of the county to the use of a specific material,” and the policy must “clearly describe[] a process to handle all objections and provide[] for resolution.” Fla. Stat. 1006.28(2)(a)2. The process must permit the objecting party to present evidence showing that that the challenged material is (1) pornographic, (2) depicts or describes sexual conduct, (3) is not suited to student needs and their ability to comprehend the material presented, or (4) is inappropriate for the grade level and age group for which the material is used. Fla. Stat. § 1006.28(2)(a)2.b(I)-(IV).
Consistent with that statutory directive, the School Board adopted a policy for addressing objections to books found in the Escambia County School District’s libraries. ( See Doc. 133 at 10-11). Under the policy, a committee was formed to review challenged books. ( Id . at 11). After conducting a review, the committee would vote on whether to permit, exclude, or limit access to a challenged book. ( Id .). The committee’s decision could be appealed to the School Board. ( Id .). After considering constituents’ comments and having debate during public meetings, School Board members would vote on whether a challenged book should be removed or restricted. ( Id .).
According to Plaintiffs’ allegations, the School Board at various times adopted different policies regarding access to challenged books during the review process. At one point, the School Board’s policy allegedly allowed challenged books to remain accessible while under review. (Doc. 27 at 25). The School Board then allegedly changed its policy and restricted access to challenged books while they were under review. ( Id . at 26). And it is claimed that the School Board later instituted a new policy, under which challenged books were restricted pending review if they allegedly contained pornographic material or discussed same-sex relationships or transgender persons. ( Id . at 27, 30- 31). According to Plaintiffs, the School Board’s review process has often taken a considerable period of time. ( Id . at 31).
The amended complaint alleges that numerous books have been either removed or restricted after completing the review process. ( Id . at 37-38). With respect to each of the books, the School Board placed the consideration of the books on its meeting agenda, reviewed the committee’s recommendations, considered public comment from constituents and interested persons, and had debate among the Board members. The Board members then voted regarding each challenged book. In some instances, the Board voted to remove books from all libraries, and in other instances the Board voted to allow access only by older students.
Plaintiffs now seek to depose the Board members. During those depositions, Plaintiffs want to ask the members what motivated their actions. If the Board’s actions fall on the legislative side of the line, then the privilege prevents the depositions because “[t]he privilege applies with full force against requests for information about the motives for legislative votes and legislative enactments.” In re Hubbard , 803 F.3d at 1310. On the other hand, the depositions may proceed if the Board’s actions fall on the administrative side of the line.
IV.
Having considered the record and the applicable law, the Court
finds that the School Board’s actions were legislative. Let’s first discuss
the policy regarding access to challenged books pending review. As
Plaintiffs’ counsel admitted at oral argument (Doc. 133 at 38-39), the
creation of a districtwide policy regarding access to challenged books
pending completion of the review process was a legislative decision.
[2]
See
generally Brown v. Crawford Cnty.
,
Although the result is the same, more discussion is required
regarding the School Board’s decision to remove or restrict access to the
books listed in the amended complaint. As explained below, the School
Board’s decision regarding those books “bore all the hallmarks of
traditional legislation.”
Bogan
,
First, from a procedural perspective, the Board “took the actions at
issue by means of an established and legitimate process.”
Schlegel v.
Koteski
,
Second, from a substantive perspective, the Board’s actions had “a
policymaking function and general application.”
Brown
, 960 F.2d at
1011. When the Board voted to remove or restrict a book, that decision
had general application across the district. The decision was also a
prospective one that would remain in effect indefinitely. And when the
Board decided that a particular book should not be available to students,
it was making a policy judgment.
See Parnell v. Sch. Bd. of Lake Cnty.
,
No. 4:23-cv-414/AW/MAF, Doc. 191 at 4-5 (N.D. Fla. Sept. 24, 2024)
(holding that the decision to remove a book from school library shelves
“was a quintessential policy decision about how to best educate Escambia
County children”). Indeed, deciding what educational materials should
be used in schools and what things are age-appropriate for students to be
learning is what School Board members are elected to do. Or stated
differently, “educational suitability questions . . . . are the perfect
example of a core educational policy matter within the exclusive province
of local school boards.”
ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd.
,
As was discussed during oral argument, different school boards
across the State of Florida have made different decisions about whether
particular books should be on library shelves in their respective districts.
(Doc. 133 at 21-22). This tends to show that the School Board members
were not just mechanically applying a state law that required a
particular outcome nor were they merely performing a managerial
function when they voted (after considering public comment and having
debate) to remove or restrict the books.
[3]
Instead, the School Board
members were making a judgment call and engaging in “line-drawing”
on a matter of public concern.
Yeldell
,
V.
Having concluded that legislative privilege applies, it is necessary to consider Plaintiffs’ argument that the privilege has been waived. According to Plaintiffs, the School Board waived legislative privilege by producing documents in discovery without making a privilege objection. The Court disagrees.
The legislative privilege belongs to the individual legislator.
See In
re Hubbard
, 803 F.3d at 1309 (stating that legislators “each
unquestionably hold their own legislative privilege”);
see also In re Grand
Jury Proc.
,
Even if the School Board could somehow waive the personal legislative privilege for all five members by producing documents in discovery, Plaintiffs have not shown a waiver in this case. In support of their argument, Plaintiffs have provided email exchanges between two Board members and two constituents and brief notes written by one Board member that the School Board turned over in discovery. (Doc. 113- 1). The Court does not believe the production of these three documents is sufficient to constitute a waiver of the personal legislative privilege by the individual Board members. See Parnell v. Sch. Bd. of Lake Cnty. , No. 4:23-cv-414/AW/MAF, Doc. 191 at 6-7 (N.D. Fla. Sept. 24, 2024) (rejecting the argument that “a witness entitled to legislative privilege waives the privilege and subjects himself to a deposition when documents he created are gathered and produced in litigation”). By Plaintiffs’ logic, if the U.S. House of Representatives turned over in discovery one email between one member of Congress and one constituent regarding a policy matter, then—Katy bar the door!—legislative privilege has been waived and all 435 representatives may be deposed. Because such a result would be inconsistent with the purpose of the personal legislative privilege, Plaintiffs’ waiver argument lacks merit.
VI.
Upon a showing of good cause, a district court “may issue a
protective order preventing a deposition.”
Baratta v. Homeland
Housewares, LLC
,
For the reasons above, the Renewed Motion for Protective Order Asserting Legislative Privilege (Doc. 107) is GRANTED , and the Motion for Restrictions of Any Board Member Depositions (Doc. 108) is DENIED as moot .
SO ORDERED. This the 18th day of October 2024.
s/ Zachary C. Bolitho Zachary C. Bolitho United States Magistrate Judge
Notes
[1] Plaintiffs do not dispute that the Board members’ affidavits are sufficient to express their desire to assert legislative privilege. (Doc. 133 at 31). Nor do Plaintiffs dispute that members of a school board may assert legislative privilege. ( Id .).
[2] The amended complaint attributes this policy decision to the School Board. (Doc. 27 at 25-30). At oral argument, Plaintiffs’ counsel stated that based on the discovery conducted it appears this policy may have been made by the Superintendent and not the School Board. (Doc. 133 at 37-38). For purposes of ruling on the current motion, the Court relies on the amended complaint’s allegations that the policy was adopted by the School Board.
[3] It bears noting that in several instances the School Board’s decisions were at odds with the determinations made by the review committee. Thus, it is not as though the School Board was simply engaged in the ministerial task of rubberstamping the review committee’s determinations.