Florida school board, sued for book bans, wants to take testimony of 7-year-old student

A Florida school board is trying to take the deposition of one of its 7-year-old students in the hopes it helps tank a federal lawsuit filed over some of its book ban decisions.

The Escambia County School Board, which is simultaneously arguing its own members can't be deposed, says it "has the right to explore the claims and defenses in the case directly with the students."

A deposition is out-of-court testimony by a witness given under oath, often at an attorney's office, for a lawsuit.

"What a parent thinks their child wants to read and is interested in and what the child actually wants to read and is interested in may be different," a defendant's attorney wrote to those suing in emails found in court records.

The case at hand was filed by national free speech group PEN America, book publisher Penguin Random House, book authors and the parents of students who were denied access to school library books.

Those students range from elementary schoolers to high schoolers. Parent Ann Novakowski joined the lawsuit on behalf of her now-7-year-old, "J.N.," because she wants "her child to have access to these books, and others like them, among other reasons, so that she is presented with different viewpoints and experiences and, thus, better prepared to engage with a wide range of people," according to the complaint.

The parties have agreed to depositions of the older students with some limitations and parental supervision, according to court records, but the plaintiffs draw the line at elementary-age children.

"It would require young J.N. to devote time away from family and friends to prepare for her testimony and to face questioning by opposing counsel in deposition – an experience that is enormously difficult and stressful for adults, let alone a seven-year-old," they wrote in a court motion last week.

Those suing say J.N. and other students like her have been negatively affected by the removal of several books, including "And Tango Makes Three," a children's picture book about a same-sex penguin pair raising a chick together.

It comes at a time when conversations about "book bans" have swept the nation. Florida has been a focal point, with advocacy organizations finding the state has more book removals and more book challenges than any other.

And Escambia, Florida's westernmost county, has been one of the epicenters of controversy. It's gotten hit with two federal lawsuits that could set important First Amendment precedent for the nation, with county officials arguing they have the right to remove any school library book, for any reason.

But first, the legal parties have to get through the depositions.

Plaintiffs want judge to restore nearly 200 titles to shelves

In the meantime, plaintiffs in the PEN America case are asking U.S. District Judge T. Kent Wetherell, before making a final decision on the case, to return seven of the nearly 200 challenged books that remain restricted in county public schools as of late June.

"For well over a year, defendant Escambia County School Board ... has restricted access to books in its school libraries based on nothing more than discriminatory viewpoint-based challenges by local residents who dislike the messages in those books," the wrote in a motion filed last week.

The books refer to LGBTQ or race topics. Most of them were first restricted pending review nearly two years ago.

The school district has also pulled hundreds of unchallenged books for review. They were flagged as possibly contrary to one of the multiple laws passed by Gov. Ron DeSantis and the GOP legislative supermajority that led to the state book removal surge.

Diving into depositions: Questioning can be heated

Depositions usually entail someone taking questions — sometimes heated, hard ones — from attorneys. The plaintiffs in the case at hand say it's not only hard on the 7-year-old but also unnecessary, with her mother able to answer the questions on her behalf.

"The courts have consistently held that a student’s potential access to a book outside of school is irrelevant to that student’s standing to challenge restrictions on access to that book within school," the plaintiffs also argued. "To the extent that the Board seeks to examine J.N. regarding her ability to access these books outside of the school library (a topic they have raised in the student depositions that have taken place so far in this case), that is not a basis to depose her."

If the court determines the elementary schooler should sit for a deposition, her attorneys say it should "significantly limit" it. But the Escambia County School Board also is asking the court to prevent the deposition of its five members and superintendent. Board members say they're protected by "legislative privilege."

"It cannot be disputed that the Board’s actions in deciding to remove or restrict certain books were legislative in nature," they said in a late June filing. "Requiring the Board members to testify as to their motives and underlying thoughts concerning their decision to remove or restrict the books at issue would eviscerate the privilege’s purpose, which is to protect the 'legislative process itself.'"

The defendants also cited legal protections held by some government officials and say depositions are unnecessary anyway because deliberations happened before the public.

County school officials also are trying to get out of depositions in a separate high-stakes lawsuit filed against them, this one by the authors of "And Tango Makes Three."

The authors say the board members removed "And Tango Makes Three" from its school shelves "because of its positive depiction of a same-sex couple and their family." And they produced emails they say show at least one member had "individual animus" toward it because of such content.

Two days before the board members voted on whether to remove the title, a constituent emailed board member Kevin Adams that she was opposed to the book because it "(promoted) transsexual decisions and homosexual ideas." Adams responded the next day, "I agree with your concerns and will vote accordingly." He did not respond to a request for comment.

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This reporting content is supported by a partnership with Freedom Forum and Journalism Funding Partners. USA Today Network-Florida First Amendment reporter Douglas Soule can be reached at DSoule@gannett.com.