When lawyers representing the Escambia County School Board sought to cross-examine local students and parents who objected to the mass removal of library books from Florida’s western panhandle classrooms, they did not hesitate to compel testimony under oath. Defense attorneys deposed parents such as Ann Novakowski and questioned local children, including a seven-year-old student, probing their reading habits and personal motives for joining a federal civil rights lawsuit. Yet when the plaintiffs requested the exact same transparency from the public officials who had ordered the shelves cleared—demanding to depose the individual school board members who cast the votes to banish over one hundred titles—the elected trustees claimed an absolute constitutional right to silence.
Invoking the ancient common-law doctrine of legislative privilege, board members Kevin Adams, Paul Fetsko, Patricia Hightower, William Slayton, David Williams, Carissa Bergosh, and Tom Harrell insisted that inquiring into their subjective motives would unconstitutionally degrade the independence of local governance. For more than three years, this institutional double standard allowed school officials across the state of Florida to orchestrate far-reaching ideological purges while shielding the conversations, political directives, and private animus behind them from the scrutiny of the federal courts.
On October 19, 2026, that protective shield collapsed. In a 2–1 published decision in the consolidated appeals PEN American Center, Inc. v. Kevin Adams, the United States Court of Appeals for the Eleventh Circuit affirmed an order denying protective orders and motions to quash deposition subpoenas for the Escambia County School Board members. Writing for the majority, Circuit Judge Andrew Brasher, joined by Circuit Judge Jill Pryor, drew a decisive boundary between the enactment of general school policies and the selective enforcement of those rules against disfavored texts. While the school board’s initial adoption of abstract book-review standards constituted protected legislative action, the court held, individual votes to remove specific titles under those preexisting standards were quintessentially administrative acts. As administrators executing municipal rules, the board members enjoy no special immunity from testifying under oath about why they pulled books from public view.
The decision cuts through the procedural fog that has surrounded the escalating wave of classroom censorship across the American South. By stripping municipal officials of evidentiary secrecy, the Eleventh Circuit has forced a long-overdue structural reckoning: when local governing bodies transform statutory mandates into partisan culture-war campaigns, they must answer for their motives in open court.
The Anatomy of an Administrative Purge
The conflict in Escambia County did not begin as an abstract inquiry into administrative law. It began as an aggressive, orchestrated campaign to eradicate literature exploring race, systemic inequality, and LGBTQ+ lives from public school libraries. In May 2023, a coalition comprising the free-expression advocacy organization PEN America, publisher Penguin Random House, celebrated authors, local parents, and students filed suit in the United States District Court for the Northern District of Florida. Their complaint in PEN American Center, Inc. v. Escambia County School Board alleged that the board systematically singled out books by and about non-white and LGBTQ+ people for exclusion, violating the First Amendment’s protection against viewpoint discrimination and the Fourteenth Amendment’s Equal Protection Clause.
The underlying litigation grouped the challenged removals into three distinct operational categories. The first category consisted of nine “Original Removed Books” pulled from shelves in the spring of 2023 under Policy 4.06. In each of these cases, high school English teacher Vicki Baggett filed formal challenges demanding that books be excised. When the district’s statutory District Materials Review Committee—composed of professional librarians, educators, and community members—formally evaluated the challenged works and repeatedly recommended that they remain on library shelves, the five-member school board intervened. By majority vote, the board overruled its own professional reviewers and ordered the titles banished. Among these works were acclaimed coming-of-age accounts and historical novels, including George M. Johnson’s memoir All Boys Aren’t Blue, Kyle Lukoff’s award-winning novel Too Bright to See, and Ashley Hope Pérez’s historical drama Out of Darkness.
The second category comprised sixteen “Superintendent-Removed Books,” which the district removed from circulation during 2025 under Policy 2522, following top-down administrative recommendations that bypassed normal committee deliberations. The third category represented an unprecedented structural escalation: 101 “Mass-Removed Books” purged en masse by board vote on July 15, 2025. This sweep was executed under an agenda item implementing a district directive adopted on June 17, 2025. That directive ordered the school superintendent to purge every single title that appeared on the Florida Department of Education’s statewide book-removal list—a list compiled from disparate challenges mounted in counties hundreds of miles away—without conducting any independent local review whatsoever.
To justify this rapid dismantling of public school collections, the school board pointed to state statutory authority. In 2023, the Florida Legislature enacted House Bill 1069, amending Florida Statutes § 1006.28. The statute drastically expanded parental challenge mechanisms, requiring local districts to establish expedited objection procedures and mandating the immediate removal of any educational material depicting “sexual conduct” or deemed “pornographic.” The statutory language was intentionally broad, providing no workable legal definitions while exposing school personnel to professional discipline and potential criminal liability for noncompliance. Confronted with ambiguous state mandates, the Escambia County School Board codified the state directives into local regulations: Policy 4.06, Policy 2520, Policy 2522, and the blanket June 17 directive.
Yet having established these comprehensive formal policies, the board repeatedly chose to ignore the factual determinations made by its own review bodies. When public records revealed that board members were systematically stripping targeted literature against the advice of credentialed library specialists, plaintiffs issued deposition subpoenas to the trustees. The school board fought back with every procedural weapon available, spending nearly $1 million in local taxpayer funds by late May 2025 alone to litigate against its own constituents and shield its members from sitting across a deposition table.
The Distortion of Legislative Privilege
The doctrine of legislative privilege has deep, venerable constitutional roots. Originating in seventeenth-century English struggles between Parliament and the Crown, the privilege was codified in the English Bill of Rights of 1689 to prevent the monarchy from intimidating or imprisoning members of Parliament for speeches delivered in the House of Commons. The Framers of the United States Constitution imported this safeguard into Article I, Section 6 under the Speech or Debate Clause, ensuring that federal lawmakers could debate policy and vote their consciences without fearing retaliatory arrest or civil liability engineered by the executive branch.
For centuries, this protection remained strictly tied to traditional legislative bodies. However, in its 1998 decision in Bogan v. Scott-Harris, the United States Supreme Court extended common-law legislative immunity and its accompanying evidentiary privilege to local municipal officials. Recognizing that city council members and county commissioners exercise genuine governing authority, the high court held that local officials are protected when performing legislative functions. But the Bogan court was careful to attach a rigorous structural condition: immunity attaches only to actions that are legislative in both form and substance. An action is legislative in substance if it involves discretionary policymaking that establishes a general rule affecting the entire community, rather than an administrative enforcement action directed at specific individuals, contracts, or items.
In the Escambia County litigation, the school board attempted to stretch Bogan into an absolute shield for administrative line-item censorship. Defending the board during oral arguments before the Eleventh Circuit on July 22, 2026, attorney Jeffrey James Grosholz argued that every single vote cast by an elected trustee on school grounds is inherently legislative. “This case presents a narrow issue of first impression in the circuit and that is whether school board officials should be required to give compelled deposition testimony regarding their decisions to vote to remove or restrict library books,” Grosholz argued. “And because we believe that this is a core policy matter regarding educational suitability, we believe that the legislative privilege protects these decisions.”
This argument fundamentally misapprehended how legal power functions. It conflated the act of adopting a rule with the subsequent act of applying that rule to a specific object. As US District Judge T. Kent Wetherell II recognized in his November 20, 2024 order in the federal trial court, school board votes to remove individual titles do not create law; they enforce it. “Under those standards, even though the school board’s decision to remove or restrict a book has some hallmarks of a legislative act (e.g., voting after debate at a public meeting), it is functionally an administrative act,” Judge Wetherell wrote.
The district court’s refusal to quash the subpoenas initiated a protracted appellate battle. In an earlier procedural round on July 16, 2025, an Eleventh Circuit panel dismissed the school board’s first appeal on jurisdictional grounds, establishing that legislative privilege is a personal shield belonging strictly to individual lawmakers rather than an institutional defense that can be asserted vicariously by a corporate school board. Undeterred, the individual board members immediately filed separate motions to quash the subpoenas in their personal capacities, renewing their insistence that any judicial inquiry into their motives was unconstitutional. That move teed up the Eleventh Circuit’s definitive October 19 ruling.
The Eleventh Circuit’s Functional Line
Writing for the Eleventh Circuit majority, Judge Andrew Brasher anchored the court’s holding in standard administrative law, rejecting the school board’s attempt to dress executive enforcement in legislative robes. “The district court concluded that when the Board members voted to remove specific books as inconsistent with the Board’s existing policies, they acted as administrators, not legislators,” Judge Brasher wrote. “We agree and affirm.”
Judge Brasher methodically parsed the dual roles occupied by modern hybrid local boards. School boards are unusual governing bodies: on any given Tuesday night, they may enact a binding district-wide budget, alter student dress codes, hear an employee termination appeal, and evaluate a vendor contract. But the mere fact that an elected body conducts its business through public motions, formal roll calls, and recorded votes does not magically transform every decision into legislation. If formal voting procedures were enough to confer legislative privilege, local officials could grant themselves absolute evidentiary immunity for any administrative act—from firing a whistleblower to denying a commercial permit—simply by holding a vote on a public agenda.
Instead, the majority applied the functional analysis mandated by Bogan and binding Eleventh Circuit precedent. The enactments of Policy 4.06, Policy 2520, and Policy 2522 were indisputably legislative acts, Brasher observed, because they formulated prospective, district-wide standards for what kinds of books should be acquired and maintained across all Escambia County public schools. But once those general rules were on the books, the subsequent determinations about whether All Boys Aren’t Blue or Out of Darkness satisfied those standards were individual, adjudicative enforcement measures.
The board’s decisions to enact overarching regulations “were legislative,” Judge Brasher explained. “But their votes to remove specific books as an application of those policies were quite literally the ‘mere administrative application of existing policies’ to specific facts.” When the trustees examined Vicki Baggett’s administrative challenges, weighed the competing findings of the District Materials Review Committee, and voted to eject nine individual titles, their actions resembled “nothing about what a legislator does, i.e., the ‘proposal, formulation, and passage of legislation.’” They were acting as an administrative appellate body reviewing concrete objects against preexisting regulatory tests.
The court applied the same rigorous logic to the mass removal of the 101 books on July 15, 2025. The board had argued that excising more than one hundred titles in a single vote was a sweeping policy measure rather than an individualized determination. Judge Brasher dismantled this argument, noting that the board did not formulate any new policy on July 15; rather, it passed a ministerial enforcement agenda implementing its prior June 17 directive, which had mechanically outsourced local review to a state-level registry. Mass enforcement remains enforcement. A municipal board cannot convert an administrative purge into protected lawmaking merely by packaging multiple administrative actions into an omnibus motion.
Anticipating the alarmist reactions of local officials across the circuit, Judge Brasher emphasized the precise, bounded nature of the ruling. “Our decision today is a narrow one,” he wrote. “We do not address whether other privileges or discovery rules may warrant quashing these subpoenas, curtailing the depositions, or the like. Nor do we suggest that every decision to stock or remove a book is administrative in nature.” If a school board were to adopt an original statute or formal ordinance explicitly naming and barring specific literary works from being purchased with public funds in the first instance, such action might well be legislative in form and substance. But where a board establishes an objective review process, delegates fact-finding to professional committees, and then overrides those committees on an ad hoc basis under existing policies, it operates in the administrative realm where transparency is required.
The Dissent’s Absolutist Alternative
The clarity of the majority opinion stands out in even sharper relief against the strident dissent filed by Chief Judge William Pryor. Echoing the aggressive posture of state conservative legal movements, Chief Judge Pryor argued that the majority had fundamentally betrayed the common law by daring to police the boundaries of school board authority. Under Chief Judge Pryor’s formulation, any discretionary decision made by an elected official concerning a matter of public debate must be treated as inherently legislative, regardless of whether it formulates a prospective rule or applies an existing one.
“Because the members of the Escambia County School Board exercise discretion over a matter of public policy when voting to remove books from school libraries, the majority wrongly strips them of their privilege to avoid testifying about those votes,” Chief Judge Pryor asserted. In his view, determining whether an educational resource is appropriate for minor children is a matter of profound public controversy; therefore, any vote addressing that controversy constitutes high policymaking. He criticized the majority for dividing policy creation from policy enforcement, insisting that the board was exercising sovereign legislative judgment at every stage: “The majority concluded that the Board was not engaged in ‘policymaking’ but instead applying a concededly indeterminate policy to decide each book’s appropriateness for the school libraries. This reasoning is foreign to the common law and the precedents that govern us.”
Chief Judge Pryor’s dissent marshaled nineteenth-century state court precedents and early English treatises to argue for an expansive, historicist doctrine of legislative immunity that covers any public official performing non-ministerial functions. Subjecting local school board members to federal depositions, he warned, would chill civic participation, invite intrusive judicial fishing expeditions into the internal mental processes of elected leaders, and degrade local democratic sovereignty.
Judge Brasher responded to this historical disquisition with pointed restraint, exposing the degree to which the dissent had strayed from the modern doctrine established by the Supreme Court: “Our dissenting colleague’s independent research may have been comprehensive. But we respectfully suggest that his resort to unraised arguments about far-flung authorities merely underscores that this court’s precedents (which we have obviously addressed in depth) do not support his position.”
The fundamental flaw in Chief Judge Pryor’s position lies in its catastrophic structural consequence. Under his framework, any local governmental entity could insulate itself entirely from federal civil rights oversight simply by framing its targeted enforcement actions as matters of “discretionary public policy.” A city council could vote to revoke the business license of an outspoken minority contractor, or a municipal zoning board could deny a building permit to a mosque, and both could claim absolute legislative privilege to suppress internal communications and depositions by asserting that their votes reflected “discretionary community standards.” By subordinating the functional test of Bogan to an expansive theory of executive discretion, Chief Judge Pryor’s approach would effectively nullify Section 1983 civil rights actions against municipal boards across the nation.
The Constitutional Stakes: Pico and the Battle over Subjective Motive
The Eleventh Circuit’s discovery ruling is not an academic diversion; it is the linchpin upon which the entire constitutional challenge to Florida’s book purges turns. Under forty years of settled First Amendment jurisprudence, the subjective motives of school board members are not merely relevant—they are legally determinative.
In the Supreme Court’s landmark 1982 decision, Board of Education, Island Trees Union Free School District No. 26 v. Pico, a Long Island school board removed nine books—including Kurt Vonnegut’s Slaughterhouse-Five and Langston Hughes’s The Best Short Stories by Negro Writers—after receiving a hit list compiled by a conservative political group. The board justified its actions on the grounds of community decency and educational suitability. But the Supreme Court drew an essential constitutional line: while local school boards possess broad discretion over formal curriculum, that discretion cannot be exercised to impose a partisan or religious orthodoxy upon school library collections. School libraries, the Pico plurality explained, are dedicated spaces for voluntary inquiry, intellectual discovery, and individual student exploration. As Justice William J. Brennan Jr. held, school boards may not purge books from library shelves simply because they dislike the ideas, political perspectives, or social themes contained in them.
Under Pico, the central constitutional inquiry is one of intent: Did the board remove a book because it was educationally unsuitable, or did it act out of an unconstitutional desire to suppress disfavored viewpoints? Establishing that subjective motivation requires direct evidence. It demands access to private correspondence, internal drafts, staff directives, and, above all, deposition testimony under oath where decision-makers must explain under cross-examination why they cast their votes.
Aware of this high legal bar, conservative legal activists and state officials have launched a concerted campaign to dismantle Pico entirely, seeking to recategorize public school libraries as pure “government speech.” This radical counter-theory achieved a significant victory just down the hall in the same federal courthouse. On September 30, 2025, Chief US District Judge Allen Winsor granted summary judgment to the Escambia County School Board in a parallel lawsuit concerning the children’s picture book And Tango Makes Three, which depicts two male penguins caring for an egg. In that ruling, Judge Winsor rejected Pico, holding that school library curation is unreviewable government speech and that students possess no First Amendment right to receive information in public schools—a ruling the authors immediately appealed to the Eleventh Circuit.
The government-speech theory is structurally perverse. It asserts that every book on every library shelf is an official pronouncement of the state, meaning that a school library containing the works of Karl Marx, Toni Morrison, and Adam Smith is simultaneously endorsing Marxism, critical race analysis, and free-market capitalism. More dangerously, if school library curation is government speech, local and state officials possess unchecked authority to scrub all dissent, political critique, and minority experiences from public collections without triggering any constitutional review.
By denying legislative privilege in PEN American Center v. Adams, the Eleventh Circuit preserves the vital factual inquiry mandated by Pico. If school board members could invoke common-law privilege to block depositions, the promise of Pico would become a hollow abstraction. A board could mouth polite platitudes about “age appropriateness” in its public resolutions while actively conspiring in private to purge literature depicting Black history or queer youth, completely insulated from judicial discovery. The Eleventh Circuit’s ruling ensures that plaintiffs can peer behind the bureaucratic curtain.
The Real Human Toll of Institutional Cowardice
While appellate courts debate eighteenth-century common law and administrative doctrine, the real consequences of this regulatory machinery fall upon working-class students, educators, and library specialists. In public school districts across Florida, House Bill 1069 and the board policies that followed have created an environment of widespread institutional terror.
For certified school librarians and media specialists, the state’s vague statutory prohibitions against “sexual conduct” have weaponized professional licensing. In Escambia County, media specialists were subjected to state training mandates warning that allowing noncompliant books onto shelves could result in formal revocation of their teaching certificates or third-degree felony charges. When individual teachers like Vicki Baggett lodged dozens of sweeping objections against foundational literary texts, the professional review committees performed their jobs with meticulous integrity: reading the texts, assessing their literary value, and recommending their retention. Yet time and again, the elected board casually discarded their expertise to appease vocal political factions.
This bureaucratic cowardice has extracted an immense educational toll from students. School libraries in Escambia County had vast sections of their collections placed under lock and key, with hundreds of titles pulled into storage closets pending review backlogs that spanned entire school years. The titles systematically removed—such as Johnson’s All Boys Aren’t Blue, an honest autobiographical reckoning with structural racism and childhood abuse, and Pérez’s Out of Darkness, an exploration of segregation and systemic violence in a 1930s Texas community—are precisely the works that provide vulnerable, marginalized youth with historical perspective, validation, and solace. The message delivered to these students by their governing board was unmistakable: their identities, their histories, and their realities were deemed unfit for public display.
Furthermore, the board’s cynical procedural maneuvering imposed an egregious burden on local families. When local parents like Ann Novakowski stood up to defend their children’s intellectual freedom, the school board deployed its high-priced legal retainers to subject those families to exhaustive, adversarial discovery. The board demanded that parents answer detailed interrogatories and forced minors to sit for depositions, using the discovery process as an instrument of procedural intimidation. Yet when those same parents sought reciprocal accountability from the public trustees who initiated the crisis, the board retreated behind claims of imperial parliamentary privilege. By invalidating that defense, the Eleventh Circuit exposed the profound hypocrisy of the district’s litigation strategy.
The Road to the Deposition Room
The immediate consequence of the Eleventh Circuit’s decision is that the individual board members must now appear for depositions under oath before Judge Wetherell in Pensacola. For the first time since the book purges began, Adams, Fetsko, Hightower, Slayton, Williams, Bergosh, and Harrell will be required to explain their actions under the penalties of perjury.
Attorneys for PEN America and Penguin Random House will be entitled to ask the critical questions that the board has evaded for three years: What specific criteria did trustees use to overrule their own District Materials Review Committee? Did board members communicate with state partisan operatives, political organizations, or state education officials prior to casting their votes? What objective rationale justified adopting the July 15, 2025 omnibus purge of 101 books without reading them? And did personal ideological animus toward LGBTQ+ people and racial minorities dictate their decisions to banish books like Too Bright to See and All Boys Aren’t Blue?
Faced with this imminent exposure, the school board’s legal options are narrowing. The trustees may petition for a rehearing en banc before the full bench of the Eleventh Circuit, hoping that Chief Judge Pryor can rally a conservative majority to overturn Judge Brasher’s opinion. Alternatively, they may file an emergency petition for a stay and writ of certiorari with the Supreme Court, pointing to the sharp philosophical division between the majority and dissent over the reach of Bogan. Yet both avenues face formidable obstacles: Judge Brasher’s majority opinion was carefully calibrated to avoid sweeping pronouncements, relying squarely on established circuit precedent to ground its narrow holding in standard administrative law.
Meanwhile, the district court proceedings will march toward a full trial on the merits. That trial will bring the fundamental constitutional question into sharp focus: whether public school libraries remain open sanctuaries for student inquiry protected by the First Amendment, or whether they can be transformed into partisan holding pens governed by the ideological whims of local officials. In an educational landscape increasingly warped by manufactured culture wars, the Eleventh Circuit’s ruling delivers a vital structural reminder: local government officials are neither monarchs nor sovereign parliamentarians. When they act as administrative censors, they must answer to the law, to the Constitution, and to the public they serve.