A U.S. District Court ruled on Tuesday that the Escambia County School Board of Florida, acting as a government agent, can force school libraries to remove And Tango Makes Three, a children’s book about a same-sex penguin couple that hatches and raises a chick. A stateside free speech organization has criticized the court’s ruling as a violation of library patrons’ and authors’ rights to freedom of speech.

The book’s co-authors, Peter Parnell and Justin Richardson, and a county kindergarten teacher sued the district after it removed the book from school library shelves, even though the district’s Instructional Materials Review Committee advised that the book remain available to student readers.

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The lawsuit included 20 pages from library researcher Dr. April Dawkins explaining the book’s educational value. The lawsuit also noted that the district provided no proof that the book harms the educational system and that school board members had also expressed personal anti-LGBTQ+ beliefs to Vicki Baggett, a local teacher who advocates for county and national book bans; suggesting that the book’s removal was motivated by bias rather than educational reasoning.

In his decision, Judge Allen Winsor, who is an appointee of the current president and who oversees the U.S. Court for the Northern District of Florida (Tallahassee Division), wrote that “a public library’s removal of books does not implicate the First Amendment right to receive information… Nor does it implicate any author’s First Amendment rights,” because “at issue here is government speech.”

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“[The school board] argues … that a school library’s decision on which books to collect (or not collect) constitutes its own expression about which books belong in the library and which books schools should be reading,” Judge Winsor added. “If the collection constitutes government speech, then [readers’ and authors’] speech rights are not implicated…. This is because when the government itself is speaking, it is ‘entitled to say what it wishes.'”

In Bluesky posts about the ruling, the Florida Freedom to Read Project wrote, “This [book’s] removal was prompted by the objection of one community member, and appealed to the Board for a vote after multiple committees decided to retain the book because they determined it had value for students.”

The group says Judge Winsor’s ruling is at odds with one issued by Judge Carlos E. Mendoza last August, meaning that the case will likely be re-litigated in the 11th Circuit Court of Appeals.

“But we don’t need to wait for a ruling,” the group wrote. “Ask your state and federal legislators to codify the freedom to read into law. Let them know we will not accept blatant viewpoint discrimination in our publicly-funded libraries and schools under the guise of ‘government speech.’ Libraries belong to the people.”

In May 2022, Florida Gov. Ron DeSantis (R) signed a law banning classroom instruction on LGBTQ+ issues in grades K­–12, making it easier for parents to ban books from school libraries. However, multiple lawsuits have continued to challenge the law’s effects. Meanwhile, Gov. DeSantis has compared And Tango Makes Three… to Nazi propaganda.

As of mid-September 2024, the Escambia County School District spent over $100,000 in taxpayer money defending itself against lawsuits connected to the book’s removal, according to Book Riot. Since its 2005 publication, And Tango Makes Three… has remained one of the most frequently banned books in the nation.

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