Appeals court says Escambia school board members can be deposed about votes to remove specific library books

Members of the Escambia County School Board may be questioned under oath about their votes to remove specific books from school libraries, the U.S. Court of Appeals for the 11th Circuit ruled Monday, Oct. 19. In a published opinion, the court affirmed a federal district court ruling that had refused to block the depositions.¹

The ruling came in two consolidated appeals, Nos. 25-13298 and 25-13698, in PEN American Center, Inc., et al. v. Escambia County School District, et al., a case filed in the U.S. District Court for the Northern District of Florida (No. 3:23-cv-10385). The plaintiffs, described in the opinion as a group of parents, authors, a free speech organization and a publisher, claim the board violated the First Amendment.¹

What the court decided

When the plaintiffs sought to depose board members about the removal votes, the board asked for a protective order on the ground of legislative privilege, which can shield officials from testifying about legislative acts. The district court denied that request, finding the votes administrative, and later denied the members’ motions to quash deposition notices and subpoenas for the same reasons. The members appealed.¹

Writing for the majority, Circuit Judge Andrew Brasher drew a line between two kinds of votes.¹² Adopting the district’s book-review rules, Policy 4.06, Policy 2522 and Policy 2520, along with a June 17, 2025, directive, was policymaking and is protected; the members cannot be asked why they adopted them. But the opinion says that applying an existing policy to a specific set of facts, “without more, is not a legislative act.” Because the members did not show that the individual removals were legislative, they can be deposed about their decisions that particular books should come off the shelves.¹

“Our decision today is a narrow one,” the majority wrote, adding that it did not address whether other privileges or discovery rules could justify quashing the subpoenas.¹ The Florida Phoenix reported that Judge Jill Pryor joined Brasher in the majority.²

The three sets of books

The opinion describes three groups of removals:¹

• Nine books, 2023: removed from some or all school libraries under Policy 4.06 after challenges by a teacher. A district materials review committee recommended keeping them, and the board overruled it at special meetings on Feb. 20, March 20 and April 13, 2023.
• 16 books, 2025: removed under Policy 2522 on the superintendent’s recommendation, approved unanimously by the board June 17, 2025.
• 101 books, 2025: removed under Policy 2522 and the June 17 directive, based on a Florida Department of Education list, approved unanimously July 15, 2025.

The dissent

Chief Judge William Pryor dissented. He wrote that under the common law, a local official’s act is legislative if it is discretionary rather than ministerial and public in character, and that the board’s votes on which books belong in school libraries meet that test. He said the majority “wrongly strips” the members of their privilege, and he would have reversed the district court.¹

According to the Florida Phoenix, the plaintiffs sued in 2023.²

What the records do not show

• The ruling decides only whether legislative privilege blocks the depositions. It does not decide whether any of the removals violated the First Amendment.
• The opinion does not say when the depositions will take place or what questions will be asked within the limits it set.
• Neither the opinion nor the Florida Phoenix report says whether the board members will ask the full 11th Circuit to rehear the case or seek review by the U.S. Supreme Court.
• The Florida Phoenix report includes no comment from the plaintiffs, the school board or their attorneys.
• The opinion does not list the titles of the removed books.