THE FREEDOM TO READ

By Rick Outzen

On Wednesday, May 17, Penguin Random House joined with PEN America, authors and local parents and students to file a federal lawsuit against the Escambia County School District, asserting the school board's removals and restrictions of books from school libraries violate their rights to free speech and equal protection under the law.

"Children in a democracy must not be taught that books are dangerous," said Suzanne Nossel, the PEN America CEO. "The freedom to read is guaranteed by the Constitution."

PEN originally stood for poets, essayists and novelists when Willa Cather, Eugene O'Neill, Robert Frost, Robert Benchley and other writers formed the organization to protect freedom of expression in 1922. The membership has since expanded to encompass a diverse range of people involved with words and freedom of expression.

First Of Its Kind

The lawsuit brings together authors and the nation's largest publisher whose books have been removed or restricted, with parents and students in the district who cannot access the books in a first-of-its-kind challenge to unlawful censorship.

"Censorship, in the form of book bans like those enacted by Escambia County, is a direct threat to democracy and our constitutional rights," said Nihar Malaviya, the Penguin Random House CEO. "We stand by our authors, their books, and the teachers, librarians and parents who champion free expression."

Ashley Hope Pérez is one of the authors involved in the lawsuit. Her book "Out of Darkness" has been challenged and placed under restricted access while under review. Pérez argued that school libraries should offer "a wide range of literature that reflects varied viewpoints and explores the diversity of human experiences."

"As a former public high school English teacher, I know firsthand how important libraries are," Pérez said in a written statement. "For many young people, if a book isn't in their school library, it might as well not exist."

Plaintiff Lindsay Durtschi has followed the school board's actions for eight months and hasn't liked what she's seen.

"Whether it's viewpoint censorship, which is what I believe is happening on our school board, or it is just a pure violation of our students' First Amendment rights, none of it is legal," she told Inweekly in a phone interview. "None of it is based on any sort of freedom of speech, freedom of parental rights. It's quite the opposite."

Durtschi is a PTA mom, a Mardi Gras krewe member, IMPACT100 member and a Junior League sustaining member. She grew up in Jack- sonville and is a "proud product of the Duval County Public School system." She moved to Pensacola eight years ago.

"One thing that was never on the docket when I was in school was banning a large portion of books based on viewpoint censorship," Durtschi said. "I would not be the person I am today had I not had the freedom to choose what I wanted to read in my public-school libraries. There was no online when I was a kid, so I would've been severely affected, even though I was a daughter of an educator."

Retired Escambia County teacher Linda Fussell has pushed back against the school board's removal of books. She had two emotions when she heard about the lawsuit: happiness and anger.

"I'm happy because this has finally happened," Fussell said. "And I was angry, because my taxpayer dollars are now going to be spent on fighting a lawsuit about banning books."

She added, "When you're banning books, you're denying students, who have a vested interest in some of those books, the opportunity to read them. We're in America, and we should not do that in America."

The Epicenter

Ballard Spahr LLP and Protect Democracy represent the plaintiffs in the lawsuit. Protect Democracy counsel Shalini Agarwal spoke with Inweekly.

"Escambia County has been an epicenter of restrictions and removals of books based on disagreement with the ideas in those books, so we think it's important to make a stand where we think a lot of the unlawful conduct is happening," Agarwal said.

She contends that the school board violated the First Amendment and the Equal Protection Clause of the U.S. Constitution.

"While school officials and school boards do have the power to determine what's age appropriate in their libraries, they cannot remove books based on disagreement with the ideas therein," Agarwal said. "We think the removal that's centered largely on books by and about people of color and about race, racism and LGBTQ+ status, that all of that is indicative of a First Amendment violation."

She continued, "The Equal Protection claim is because of the status of the authors and the characters that they're talking about. It appears to be a pattern and has been cited as one of the reasons for wanting to remove the books, and that is discriminatory."

The initial challenge a lawsuit typically faces is whether the plaintiffs have sufficient standing. Agarwal is confident a judge will allow the case to proceed.

"We have parents who have children who are in the schools who are representing themselves and representing their kids who want to read the books," she said. "We have authors who have published some of the books that have been removed and restricted, and we have PEN America standing in for a whole bunch of authors it represents, as well as a publisher that publishes many of the books that have been restricted and removed. So we think that we have our bases covered on standing."

Breach Of Process

Last year, the Florida Legislature passed a law allowing the public to challenge books in public schools. Vicki Baggett, the Language Arts Department chair at Northview High School, took advantage of the law and compiled a list of more than 115 books she said were inappropriate in schools, primarily because of sexual language and graphic drawings she believed violated Florida's obscenity laws.

The fact that one individual has sparked the attacks on school library books in Escambia County isn't lost on PEN America.

"The targeted book removals we are seeing in Escambia County are blatantly unconstitutional attempts to silence and stigmatize," said Nadine Farid Johnson, counsel and Managing Director of PEN America Washington and Free Expression Programs. "The government should not foster censorship by proxy, allowing one person to decide what ideas are out of bounds for all."

In November 2022, the first title from Baggett's list, Stephen Chbosky's "The Perks of Being a Wallflower," made it through Escambia's review process, which included community input via online forms and a review committee assessment. The book was deemed appropriate as an elective for high school seniors, but Baggett appealed the decision. The Escambia County School Board agreed with the Northview High teacher and banned the book.

This past February, the school board tossed three more titles, and two board members appeared ready to ditch the review process after listening to hours of public criticism from both sides of the issue.

Holding up a copy of George M. Johnson's "All Boys Aren't Blue," board member Kevin Adams said, "Why don't we get ahead of this thing and remove everything that we know—because I don't want to read another one of these, OK?"

Superintendent Tim Smith countered, "If I were to make that decision, I wouldn't be in compliance with the law."

Ellen Odom, the school district's general counsel, backed Smith, "I believe it is the board's responsibility to make that final decision if the books are already in our library. I would be very wary about going down that road."

Durtschi is shocked the school board overruled the review committee's recommendations that several challenged books had educational value and should be available for students at the appropriate grade levels. The board's personal viewpoints were more important than the analysis done by educators.

"We are basically telling our teachers and media specialists, who went to school for this and, in many cases, have master's degrees, that we don't trust you to choose what's appropriate for our kids," Durtschi said.

Before the school board fired Smith on May 16, the school superintendent recalled the February board discussion, "Mr. Adams, you sat in that chair and led this board through a process to come up with a policy, but you hammered away, 'Oh, the superintendent should pull these books.' Why? Because you don't want to deal with it."

Smith continued, "You get the emails, you get the phone calls, you get the chaos. But yet, it's easy to throw the superintendent under the bus. It's your policy that you led, and you are asking me to violate your policy."

The superintendent asserted board member Paul Fetsko also wanted him to pull books. He said, "Mr. Festko, the other day, I believe you said some laws need to be violated because you said the same thing. You wanted me to pull the books."

Agarwal watched the meeting.

"We were like, 'Wow, this is a really remarkable sort of breach of process,'" Agarwal said. "So really, really something. I haven't seen at a school board anything like that before."

Incubator Of Democracy

Agarwal hopes similar lawsuits will be filed around the state because the removing and restricting books seems to have been done in a "slap-dash fashion out of a panic about matters related to LGBTQ folks and discussions of race that impoverishes our kids."

"I think the public-school library is an incubator of democracy, frankly, because you have kids go in there to a library, and it's not the curriculum," Agarwal said. "It's not something that they're being required to read by their teacher."

"They can go and explore," Agarwal said. "When kids are unable to either see their own identities reflected or to see other folks and understand differences, that makes it harder for those kids when they become adults and citizens to connect with other citizens and empathize."

"That's a really important factor in making our multiracial and pluralistic democracy work," she added. {in}

For more on the lawsuit, including the entire complaint and information about the books and author plaintiffs, visit pen.org/pen-america-v-escambia-county.