Eleventh Circuit: Escambia Board Can Be Asked Why It Removed Books

What did the appeals court decide? Members of the Escambia County School Board can be questioned about why they voted to remove particular library books. They cannot be questioned about why they adopted the policies those votes applied. On October 19, 2026, the Eleventh Circuit filed a published opinion in No. 25-13298, PEN American Center v. Escambia County School District. Judge Andrew Brasher wrote for the majority, joined by Judge Jill Pryor. Chief Judge William Pryor dissented.

The opinion affirms the district court. "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. We agree and affirm," Brasher wrote.

Courthouse News describes Judge Jill Pryor as a Barack Obama appointee, Judge Brasher as a Donald Trump appointee, and Chief Judge William Pryor as a George W. Bush appointee. Seven members, the article says, asked the court to quash depositions about removing and restricting more than 100 books.

The line the court drew

Brasher wrote that the members "cannot be questioned about why they adopted Policy 4.06, Policy 2522, Policy 2520, or the June 17, 2025, directive because these policymaking decisions were legislative acts." They can still be deposed, "notwithstanding their invocation of legislative privilege," about "their determination that specific books should be removed as an application of existing policies because these determinations were administrative acts."

"Our decision today is a narrow one," the opinion says. It does not address whether other privileges or discovery rules may warrant quashing the subpoenas, shortening the depositions, or something similar. "Nor do we suggest that every decision to stock or remove a book is administrative in nature." It holds only that, "on the facts of this case, the district court correctly concluded that the Board members' votes to remove specific books as an application of their existing policies were not legislative acts."

Parents, authors, PEN American Center, and Penguin Random House sued over the First Amendment. See our PEN America and Penguin Random House pages. The district court denied a protective order, cited as 787 F. Supp. 3d 1292 (N.D. Fla. 2024), and later denied motions to quash for the reasons in that order. Two appeals were consolidated. Courthouse News notes the members are not parties.

Florida Statutes § 1006.28(2)(a)(2) required a policy on materials that are pornographic or that depict or describe sexual conduct. Under Policies 4.06 and 2522, an objection goes to the superintendent and the media coordinator, then if needed to a community committee, and the complainant has ten business days to appeal to the board. Any removal, the policy says, comes with "the Board's statement of its reasons for the removal."

Three sets of removals

The nine Original Removed Books came off shelves in 2023 under Policy 4.06. A teacher challenged them for, among other things, "extreme sexual content," "LGBTQ agenda," "race-baiting," "graphic rape scenes," and "language." A materials review committee recommended keeping them. At meetings on February 20, March 20, and April 13, 2023, the board overruled the committee and removed the nine from some or all school libraries.

The sixteen Superintendent-Removed Books followed in 2025 under Policy 2522. The superintendent said the books were "classified as adult novels" and "contain graphic descriptions and depictions of sexual conduct which are not appropriate for minors," citing Florida Statutes § 1006.28(2)(d)(1). The board approved that recommendation unanimously on June 17, 2025.

The 101 Mass-Removed Books applied that June 17 directive. The superintendent brought a list of titles the Florida Department of Education had objected to. On July 15, 2025, the board unanimously approved removing the books on that list "without further review."

Courthouse News reports that the challenges began in May 2022 with teacher Vicki Baggett, and that hundreds of them echoed posts on sites affiliated with Moms for Liberty. Books the plaintiffs cite include Slaughterhouse-Five, Beloved, and Forever. They also cite Board of Education v. Pico (1982): schools may bar books that are "pervasively vulgar" or not right for the curriculum, but not books removed "simply because they dislike the ideas contained in those books."

The article says the ruling came a week after Banned Books Week. Citing PEN America, it reports 11,982 bans in the 2025-26 school year, the highest single-year total documented, including 4,500 books new to the Index of School Book Bans. Florida, just behind Texas, accounted for more than 3,000. Our report is PEN America's 2025-26 tally. We have also covered Utah's list of 44 titles and Jodi Picoult's free copies of Nineteen Minutes.

The dissent

Chief Judge William Pryor would have reversed. "At common law, their acts were legislative if they were discretionary instead of ministerial and of a public instead of a private character." He wrote: "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." The majority, he said, ignores that common law and misreads circuit precedent. "We should instead reverse the district court. I respectfully dissent."

Courthouse News says he likened the votes to a zoning case the circuit had called legislative. The majority said that case was about amending an ordinance, not applying one, and that refusing to amend is policymaking too. The plaintiffs are not asking about creating, repealing, or amending policy. Brasher, quoted there: "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."

Why it matters for authors and publishers

Authors and Penguin Random House are plaintiffs, and this opinion does not decide the First Amendment claim. It decides who must answer questions. Applying an existing policy to a specific book, including the July 15 vote to take the state list "without further review," is administrative. Adopting the policy is still privileged. Other privileges may yet limit the depositions. The ban totals above are Courthouse News citing PEN America, not findings in the opinion.

Sources

• U.S. Court of Appeals for the Eleventh Circuit, opinion filed October 19, 2026, No. 25-13298: PEN American Center v. Escambia County School District
• Courthouse News Service, October 19, 2026: Florida school board must testify about book removals