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Escambia County Schools book lawsuit ruling: board not shielded

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A federal judge Wednesday rejected arguments that Escambia County School Board members and the superintendent of schools should be shielded from testifying about the removal of a school-library book — but said the board can file a revised request.

U.S. District Judge Allen Winsor issued a four-page ruling after school-district attorneys last month filed a motion seeking a protective order to prevent depositions of board members and Superintendent Keith Leonard in a lawsuit over the removal of the children’s book “And Tango Makes Three.” The district raised a series of arguments, including whether the testimony would be relevant and whether school-board members are shielded by a concept known as “legislative privilege.” Winsor on Wednesday denied the motion.

For example, he wrote that the board “members’ motives are not irrelevant. … Escambia says we cannot impute a single member’s motives to the whole board. True enough. But a single member’s motives could move the needle somewhat in determining the board’s motives. Regardless, plaintiffs seek the deposition of all members. Evidence that all (or even most) of members had some sort of unlawful motive would move the needle much more.” Winsor also rejected the legislative-privilege claim but said the board can file a revised motion on the issue. Winsor wrote that the board in last month’s motion sought to assert the privilege as a legislative body.

“The board members could seek to quash the subpoenas (for depositions) based on legislative privilege,” Winsor wrote. “But it is not clear the board can assert the privilege itself as grounds for a protective order, especially without a direct indication that the members wish to invoke the privilege.”

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The book’s co-authors, Peter Parnell and Justin Richardson, and a student identified by the initials B.G. argue in the lawsuit that the removal of the book violated First Amendment rights. “And Tango Makes Three” tells the story of two male penguins who raised a penguin chick at New York’s Central Park Zoo. The lawsuit contends, at least in part, that it was targeted for depicting same-sex parents raising a child.

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