Florida and Lake County school district seek to end their fight over the “And Tango Makes Three” library book removal

School books. By Sean Kinane /WMNF News (2015)

By Jim Saunders ©2023 The News Service of Florida

TALLAHASSEE — Florida education officials and the Lake County school district on Friday urged a federal judge to toss out a lawsuit filed after the children’s book “And Tango Makes Three” was removed from school libraries in December in reaction to a controversial state law.

The lawsuit alleges that the school district violated First Amendment rights when it removed the book, which tells the story of two male penguins who raised a penguin chick at New York’s Central Park Zoo. The district’s decision stemmed from a 2022 state law that restricted instruction about sexual orientation and gender identity in schools.

But in two motions filed Friday, attorneys for the state and the district argued that U.S. District Judge Brian Davis should dismiss the lawsuit, in part because they said it is moot. That is because the district reversed its decision on the book after receiving legal guidance from the Florida Department of Education that the 2022 law (HB 1557) applied only to classroom instruction — and not library books.

“The county restricted Tango in the first place because it mistakenly believed the restriction was required by HB 1557,” the state’s motion said. “Once Lake County became aware of its erroneous interpretation and the state’s longstanding view that HB 1557, by its plain and obvious terms, does not apply to library books and thus does not restrict the county’s discretion in such matters, the county acted through its superintendent — the same official that restricted Tango in the first place—to lift the restriction.”

In a filing last month seeking a preliminary injunction, attorneys for the plaintiffs disputed that the case is moot. They argued, in part, that the district could reverse course again and bar the book from libraries.

“(The) Lake County defendants are not committed to preserving access to Tango because they reserve their right to re-restrict Tango if DOE (the Department of Education) reverses course and deems library books subject to HB 1557,” the July 20 filing said.

But Davis on Thursday rejected the request for a preliminary injunction because of the mootness issue. The injunction request sought to require the district to restore access to the book before the 2023-2024 school year, which starts Thursday in Lake County.

“Plaintiffs have not shown there is a reasonable expectation that the government will reverse course,” Davis wrote in denying the request. “While the decision to reverse the restriction on Tango came after the lawsuit and (preliminary injunction) motion were filed, plaintiffs present no argument showing defendants knew their action might be unlawful until this suit was filed.”

The dispute is rooted in the 2022 law and a broader debate about challenges to books in Florida schools. The law barred instruction on gender identity and sexual orientation in kindergarten through third grade. Supporters titled the law “Parental Rights in Education,” but opponents called it the “don’t say gay” bill.

Gov. Ron DeSantis and the Republican-controlled Legislature this year passed a measure (HB 1069) that expanded the prohibition on instruction about sexual orientation and gender identity to pre-kindergarten through eighth grade.

The Lake County school district in December removed “And Tango Makes Three” from libraries because it thought the 2022 law applied. The plaintiffs, including book authors Peter Parnell and Justin Richardson and students, filed the lawsuit June 20, alleging First Amendment and due-process violations. The defendants included the Lake County School Board, Superintendent Diane Kornegay and the State Board of Education.

“In applying HB 1557 to restrict access to Tango in public school libraries, Lake County schools, the Lake County board, and the board’s executives discriminated on the basis of content and viewpoint: They barred students from accessing Tango because of its content — namely, the story of a same-sex animal couple with an adopted child — and its expressed viewpoint — namely, that same-sex relationships and families with same-sex parents exist; that they can be happy, healthy, and loving; and that same-sex parents can adopt and raise healthy children,” the lawsuit said.

But a day after the lawsuit was filed, the Department of Education sent a legal memorandum to the district saying the 2022 law did not apply to library books, only classroom instruction. That prompted Kornegay to quickly reverse course on barring the book from libraries.

Davis’ rejection of the preliminary-injunction motion last week does not resolve the underlying issues in the lawsuit. In its motion to dismiss the case Friday, the state disputed the First Amendment allegations, along with contending the lawsuit is moot.

The state’s motion said that “because the compilation of library materials is government speech, the First Amendment does not bar the government from making content- and even viewpoint-based choices about what to curate.”

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