Key Points

  • The Eleventh Circuit, 2-1, affirmed the denial of Escambia County School Board members' motions to quash deposition subpoenas and for protective orders.
  • The majority held that the board's votes to adopt its book-review policies and a June 17, 2025, directive were legislative acts protected by legislative privilege.
  • The majority held that the votes removing nine, 16 and 101 specific books applied those existing policies to specific facts, were administrative acts, and fall outside the privilege.
  • Chief Judge William Pryor dissented, writing that under the common law the votes were discretionary acts of a public character and therefore legislative.
  • The majority described its holding as narrow and left open whether other privileges or discovery rules could limit or quash the depositions.

A divided federal appeals court ruled on Oct. 19 that members of a Florida school board can be questioned under oath about why they voted to remove specific books from school libraries. The court held that legislative privilege, which protects lawmakers from being compelled to testify about their legislative acts, does not cover those votes.

The U.S. Court of Appeals for the Eleventh Circuit, in a 2-1 opinion by Judge Brasher, affirmed a district court's refusal to block depositions of Escambia County School Board members. The depositions are sought by the parents, authors, PEN American Center and Penguin Random House, who are suing the board under the First Amendment. Chief Judge William Pryor dissented, arguing that the votes were legislative under 19th-century common law.

The majority drew its line between making policy and applying it. Board members cannot be questioned about why they adopted the policies governing book removals, the court held, because adopting them was a legislative act. They can be deposed about their determinations that particular books failed those policies, which the court classified as administrative acts. The plaintiffs have conceded that they intend to ask about the members' motives for the removal votes.

Florida law directs school districts to discontinue library books that are pornographic, depict or describe sexual conduct, are not suited to student needs, or are inappropriate for the grade level and age group. The Escambia board adopted policies requiring removal of such books and letting members of the public object to them. A complainant whose challenged book survives review by district staff or a committee of community members may appeal to the board, which under its current policy must state its reasons for any removal.

The appeal involved three sets of removals. In 2023, a teacher challenged nine books as containing, among other things, "[e]xtreme sexual content," "LGBTQ agenda" and "[r]ace-baiting." A district review committee recommended keeping them, and the board overruled the committee over three meetings.

In 2025, the board unanimously approved the superintendent's recommendations to remove 16 books he described as adult novels with graphic depictions of sexual conduct, and then 101 books on a Florida Department of Education list. A June 17, 2025, board directive had told the superintendent to eliminate books on that list "without further review."

The district court denied the board's motion for a protective order on privilege grounds in 2024. It later denied motions by Kevin Adams and six other board members to quash their deposition subpoenas, and the Eleventh Circuit consolidated the members' two appeals.

Brasher wrote that the members bore the burden of proving their acts were legislative and had not met it. The votes adopting the policies and the June 2025 directive were legislative. "But that is when the legislative policymaking ended," he wrote. The removal votes were "quite literally the 'mere administrative application of existing policies' to specific facts," he wrote, quoting a 1991 circuit precedent.

The majority noted that the 2023 votes appeared on meeting agendas as consideration of a "Citizen Challenge" under state law, and that the board was "expressly adjudicating a complaint." It also found that the board had done only what the superintendent already had authority to do. "Just as the Superintendent was not exercising legislative power when he determined that these books violated existing policy, the Board was not exercising legislative power when it agreed with him," Brasher wrote.

He concluded that "nothing about the Board's process resembles what a legislator does." The panel also rejected the members' argument that voting itself signals a legislative act, writing that "the key inquiry is what the vote was about." The court rejected their argument that the board's discretion made the votes legislative, too, because the votes "were not an exercise in policymaking discretion."

Pryor wrote that under the common law, which he said the Supreme Court has explained defines the privilege, local officials' acts were legislative "if they were discretionary instead of ministerial and of a public instead of a private character." A ministerial act, under a 1990 legal dictionary he cited, is one requiring obedience to instructions without special discretion or judgment. Because the board members exercise discretion over public policy when voting to remove books, he wrote, "the majority wrongly strips them of their privilege to avoid testifying about those votes."

The votes were public in character, Pryor wrote, because the removed books became inaccessible to all students in the district. "No entity but a sovereign may decide what books should be available to all children attending public schools," he wrote.

The dissent relied on an 1880 decision in which the Supreme Court of California held that Oakland's board of education acted legislatively when it approved a committee's recommendation to adopt a new series of textbooks. Brasher wrote that the majority saw no need to discuss "an obviously distinguishable 1880 decision from California on which no party relies." He added that Pryor's "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."

Pryor responded that the Supreme Court, in Bogan v. Scott-Harris, made the common law of 1871 define the line between legislative and nonlegislative acts. "Regrettably, the majority affirms because it ignores the common law and mangles our precedents," he wrote.

The majority called its decision "a narrow one." It did not address "whether other privileges or discovery rules may warrant quashing these subpoenas, curtailing the depositions, or the like," and said it did not suggest "that every decision to stock or remove a book is administrative in nature." With the denial of the members' motions affirmed, the case proceeds in the Northern District of Florida, where the depositions may go forward subject to any objections the ruling left open.