Eleventh Circuit: School Board Book Votes Not Legislative Acts

Eleventh Circuit: School Board Book Votes Not Legislative Acts

The Eleventh Circuit ruled on October 19, 2026 that legislative privilege does not shield Escambia County School Board members from being deposed about why they voted to pull specific library books. It is a discovery ruling only; the First Amendment challenge itself remains undecided.

Information last verified on October 25, 2026. This is a developing story; we update it as the record changes.

Status: Discovery ruling only. The Eleventh Circuit affirmed orders denying the Board members' motions for a protective order and to quash the deposition subpoenas, holding that legislative privilege does not bar questioning about their book-removal votes; the panel expressly left open whether other privileges or discovery rules may still quash the subpoenas or curtail the depositions. The underlying First Amendment challenge in N.D. Fla. No. 3:23-cv-10385-TKW-ZCB remains undecided as of October 25, 2026.

Jurisdiction scope: This decision binds federal courts in the Eleventh Circuit (Alabama, Florida and Georgia) and concerns federal common-law legislative privilege in civil discovery. It is not a public records decision, and it does not interpret any records or open-meetings statute. It does not decide whether the book removals were constitutional, whether any other privilege applies, or what local officials outside those three states may be compelled to say. Readers looking for the rules on getting documents and meeting records out of a Florida agency want Florida's own transparency statutes instead.

What Happened

A panel of the United States Court of Appeals for the Eleventh Circuit issued a published opinion on October 19, 2026 in two consolidated appeals arising from the same district court case. The court's own opinions index names them PEN American Center, Inc. v. Kevin Adams, No. 25-13298, and PEN American Center, Inc. v. Carissa Bergosh, No. 25-13698, both from district court docket 3:23-cv-10385-TKW-ZCB. Judge Brasher wrote for the panel, joined by Judge Jill Pryor. Chief Judge William Pryor dissented.

The lawsuit behind the appeal was filed by a group of parents, authors, the free speech organization PEN American Center, Inc., and Penguin Random House, who, as the opinion puts it, "sued the Escambia School Board for violating the First Amendment." None of those claims were before the appellate panel. What was before it was a question about discovery: whether the individual Board members could be compelled to sit for depositions and explain their reasoning.

The three sets of removals

The opinion describes three categories of books, using the parties' own labels.

The nine Original Removed Books came out in 2023 under the Board's Policy 4.06. A teacher filed written challenges describing the books as containing, among other things, "[e]xtreme sexual content," "LGBTQ agenda," "[r]ace-baiting," "[g]raphic rape scenes," and "language." A District Materials Review Committee of community members read the books and recommended against removing them. The teacher appealed to the Board, which considered the appeals across three special meetings in February, March and April 2023 and overruled the committee, voting to remove all nine books from some or all school libraries.

The sixteen Superintendent-Removed Books came out in June 2025 under the Board's newer Policy 2522. Here the trigger was not a citizen challenge. The Superintendent recommended removal because the books were "classified as adult novels" and "contain graphic descriptions and depictions of sexual conduct which are not appropriate for minors." The Board approved unanimously.

The 101 Mass-Removed Books came out in July 2025. On June 17, 2025 the Board had issued a directive telling the Superintendent to "eliminate all pornographic or age-inappropriate books from district media centers, as identified on the Department of Education's book removal list, without further review." The Superintendent assembled the list and, rather than acting on his own authority, asked the Board to approve it. The Board again approved unanimously.

How the privilege fight reached the Eleventh Circuit

When the plaintiffs sought to depose Board members about those votes, the Board moved for a protective order based on legislative privilege. The district court denied it, holding the votes were administrative acts, in a decision the opinion cites as PEN American Center, Inc. v. Escambia County School Board, 787 F. Supp. 3d 1292, 1297 to 1298 (N.D. Fla. 2024). Per the panel, the district court reasoned that the votes "were based on specific facts about the content of books, involved the case-by-case application of law and policy to specific books, and did not formulate general standards that apply to all books."

The plaintiffs then served deposition notices and subpoenas. The Board members moved individually to quash and for protective orders. The district court denied those motions "for the reasons stated" in its earlier order. In the opinion's words, "The Board members filed two appeals, which we consolidated."

One procedural note worth flagging precisely, because it is easy to overstate: the published opinion contains no discussion of appellate jurisdiction and no mention of the collateral order doctrine. The panel's entire Part II is a standard of review: "We review a district court's decision whether to quash a subpoena for abuse of discretion," citing In re Hubbard, 803 F.3d 1298, 1307 (11th Cir. 2015). So the opinion does not announce a jurisdictional holding, and this article does not attribute one to it.

What the panel actually held

Early in the opinion the panel frames the question this way: "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."

But the panel's own operative statement of its holding, at the end of the opinion, is deliberately narrower, and it is the sentence to quote: "We hold 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."

The disposition is one line: "The district court is AFFIRMED."

The panel then drew an explicit boundary within the privilege. Board 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 be deposed about "their determination that specific books should be removed as an application of existing policies because these determinations were administrative acts."

And the panel limited itself again in the paragraph before the disposition: "Our decision today is a narrow one. We do not address whether other privileges or discovery rules may warrant quashing these subpoenas, curtailing the depositions, or the like. Nor do we suggest that every decision to stock or remove a book is administrative in nature." It added that legislative privilege "serves important interests in preserving legislative independence" and that those interests "warrant robust protection."

What the Law Actually Says

Legislative privilege is not in the Constitution's Speech or Debate Clause as far as state and local officials are concerned. It is federal common law. As the opinion states, "Federal common law, which applies to evidentiary privileges in federal court, FED. R. EVID. 501, provides a legislative privilege to state and local legislators," citing Pernell v. Florida Board of Governors of the State University System, 84 F.4th 1339, 1343 (11th Cir. 2023).

The Supreme Court line the panel works from runs through United States v. Brewster, 408 U.S. 501, 525 (1972), for what the privilege covers: it "protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts." It does not reach administrative or other nonlegislative acts, per Yeldell v. Cooper Green Hospital, Inc., 956 F.2d 1056, 1062 (11th Cir. 1992). And the panel notes that the burden runs against the official claiming protection: "The burden of proving that an act is legislative rests on the person asserting the privilege."

The administrative line for local officials

Local school boards are hybrids. As the opinion says, and as no party disputed, they "exercise a combination of proprietary, administrative, and legislative powers." So the question is never whether the body is a legislature. It is whether the specific act was legislative.

The panel's stated test comes from Crymes v. DeKalb County, 923 F.2d 1482, 1485 (11th Cir. 1991): "the touchstone of a legislative act is that it involves 'policy-making rather than mere administrative application of existing policies.'" The panel also quoted Crymes for the corollary that an act is "more apt to be administrative in nature" when "the facts utilized in making a decision are specific, rather than general, in nature."

Applying that, the panel gave three reasons. First, process: the legislative policymaking in Escambia County happened when the Board adopted Policies 4.06, 2522 and 2520 and the June 17, 2025 directive, and "that is when the legislative policymaking ended." Second, form: the agenda items for the 2023 votes were captioned "[t]o Consider a Citizen Challenge to [book title] by [author] Pursuant to Section 1006.28(2), Fla. Stat.," and the 2025 items were motions to approve the Superintendent's recommendation. Third, substance: "When it voted on whether to remove these books, the Board was doing no more than what the Superintendent could already do."

The panel also rejected two arguments that are worth noting because local officials elsewhere will make them. Voting is not itself decisive; "under our precedents, the key inquiry is what the vote was about." Nor is the presence of discretion enough: "The key question is not whether an existing policy leaves some avenue for the exercise of discretion in applying the policy to a specific set of facts; the question is whether a particular act was an exercise of policymaking discretion."

The Florida statute in the background

Florida law is what put the Board in this position. Section 1006.28(2) of the Florida Statutes provides that "The district school board has the constitutional duty and responsibility to select and provide adequate instructional materials for all students in accordance with the requirements of this part," and section 1006.28(2)(a)1. makes each board "responsible for the content of all instructional materials and any other materials used in a classroom, made available in a school or classroom library, or included on a reading list."

Section 1006.28(2)(a)2. then requires each board to "adopt a policy regarding an objection by a parent or a resident of the county to the use of a specific material," and to give the objector a chance to show that material "[i]s pornographic or prohibited under s. 847.012", "[d]epicts or describes sexual conduct as defined in s. 847.001(19)", "[i]s not suited to student needs and their ability to comprehend the material presented," or "[i]s inappropriate for the grade level and age group for which the material is used." Section 847.012, the cross-referenced criminal statute, is titled "Harmful materials; sale or distribution to minors or using minors in production prohibited; penalty."

Two details in that subsection shape the real-world mechanics. Material objected to on the pornography or sexual-conduct grounds "must be removed within 5 school days after receipt of the objection and remain unavailable to students of that school until the objection is resolved." And a county resident who is not a parent or guardian of a student with access to the materials "may not object to more than one material per month."

If a parent is unhappy with a board's decision, section 1006.28(2)(a)6. lets the parent ask the Commissioner of Education to appoint a special magistrate who must be "a member of The Florida Bar in good standing and who has at least 5 years' experience in administrative law," with a recommended decision to the State Board of Education within 30 days. The implementing rule is Florida Administrative Code Rule 6A-1.094126, "Special Magistrate for Materials Used in Classroom or School Libraries," effective September 26, 2023. The panel treated this appeal route as a signal, observing that the legislative process "is ordinarily not constrained by administrative law."

How this sits next to open-government law

Florida's own statutes already make much of this process public, and that is a different thing from what the Eleventh Circuit decided. Sections 1006.28(2)(a)4. and 5. require that meetings of committees convened to rank, eliminate or select instructional materials, and meetings of committees convened to resolve a parent or resident objection, "must be noticed and open to the public in accordance with s. 286.011."

Section 286.011(1) is Florida's open-meetings provision. It declares that all meetings of any board of "any county, municipal corporation, or political subdivision" at which official acts are to be taken "are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting." Section 286.011(2) adds that the minutes "shall be promptly recorded, and such records shall be open to public inspection." The opinion also notes that Policy 2522 requires the Board to state its reasons when it votes to remove material.

So the vote and the stated reason were already public. What legislative privilege controls is something narrower and more intrusive: whether an individual official can be put under oath in a federal civil case and questioned about his or her actual motivation. Open-meetings and records statutes do not answer that. They are state transparency rules about documents and meetings, with their own exemptions carved out case by case, as a recent Florida appellate ruling on records exemptions illustrates. Federal legislative privilege is an evidentiary rule that operates inside federal discovery, and it is where the compelled-testimony question lives. If you are trying to orient yourself among these overlapping systems, start with how transparency statutes are structured state by state.

One correction worth making, because the confusion is common: the federal Freedom of Information Act is not the tool here. Section 552(f)(1) of title 5 is inclusive rather than limiting. It provides that "'agency' as defined in section 551(1) of this title includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." The limit sits in the definition it cross-references: section 551(1) defines an agency as "each authority of the Government of the United States, whether or not it is within or subject to review by another agency," subject to a list of exclusions. A Florida county school board is not an authority of the federal government, so the federal request process does not reach it, and Florida's own statutes do. A different question with its own rules comes up constantly in these disputes, since they play out on school property: when Florida law permits recording on school premises. That turns on the state's consent statutes, not on anything in this opinion.

The Dissent

Chief Judge William Pryor dissented in a 22-page opinion. Nothing in this section is law in the Eleventh Circuit. It is his stated position, and the majority opinion controls.

His starting premise is historical. At common law, he writes, local officials' acts "were legislative when they were both discretionary" instead of ministerial "and of a public character" instead of private. He grounds that in Bogan v. Scott-Harris, 523 U.S. 44, 49 to 52 (1998), which he reads as directing courts to the common law that governed local governments when Congress enacted what is now 42 U.S.C. 1983, together with Federal Rule of Evidence 501's instruction that the common law governs privilege claims. On that framework, he writes, "the majority wrongly strips them of their privilege to avoid testifying about those votes."

His central methodological complaint is about vocabulary. When federal courts began calling nonlegislative acts "administrative," he argues, they used the word as a synonym for ministerial, quoting the sixth edition of Black's Law Dictionary from 1990, where a ministerial act was "[t]hat which involves obedience to instructions, but demands no special discretion, judgment, or skill." In his view the majority "missteps by giving predominance to the connotations of 'administrative' today," which the twelfth edition of Black's Law Dictionary, published in 2024, defines in management terms with no reference to discretion at all.

He then rereads the majority's lead case. The development-permit denial in Crymes, he says, was ministerial rather than discretionary: under local law the Development Director could approve the permit only if the director of public works approved the truck routes, that approval was withheld, and the county board "had to affirm," citing Crymes Enterprises, Inc. v. Maloof, 389 S.E.2d 229, 230 (Ga. 1990). On his account Crymes therefore fits the common-law rule rather than contradicting it.

He offers a parallel rereading of the personnel cases the majority invoked. Decisions to hire, fire and demote are discretionary, he concedes, and they are still nonlegislative, but not for the reason the majority supposes: they are nonlegislative because they lack public character. When a municipality hires, it acts as a private employer would, and the person affected has a distinctive and direct private interest. Book removals, he says, are the opposite: "No entity but a sovereign may decide what books should be available to all children attending public schools."

On discretion, he points to the record. Board members "were not always in agreement on these thorny policy judgments, and different boards have reached different conclusions about the same books," facts he says the majority fails to mention. He also argues the votes were prospective and generally applicable because they made the removed books inaccessible to every student in the district, and he states they did so for at least five years.

His strongest doctrinal move is Baytree of Inverrary Realty Partners v. City of Lauderhill, 873 F.2d 1407 (11th Cir. 1989). The majority describes Baytree as a case about amending a zoning code. The dissent reads it as a case about a single application turning on specific facts, since the complaint there "challenge[d] [individual] defendants' conduct in denying plaintiff's application to rezone its property," and notes that officials who merely accepted another body's recommendation were held immune there too. "Administrative review was irrelevant," he writes. The majority's answer is that the Baytree application sought to amend the ordinance rather than to apply the one in effect, which the dissent calls a response that "highlights the similarity to this case."

He also cites a nineteenth-century case directly on point: People ex rel. Cochran v. Board of Education of Oakland, 54 Cal. 375 (1880), where the California Supreme Court held that a school board's approval of a committee recommendation to adopt a new textbook series was legislative, not judicial, because "[t]he Board acted upon the proposition before it as one of policy or expediency, aiming to adopt that which, in its judgment, would be best for the constituency which it represented." The majority dismissed Cochran and similar sources as "far-flung authorities" that no party cited, and suggested that reliance on unraised arguments "merely underscores that this Court's precedents ... do not support his position." The dissent's reply is that Bogan itself relied on nineteenth-century treatises, so the common law of 1871 is not far-flung but controlling.

The dissent also records a disagreement inside the district court itself. "Unlike the majority and the district court," it says, Magistrate Judge Bolitho "got our precedents right," citing Judge Winsor's resolution of a similar issue in an earlier district-court case. "The majority ignores their disagreement."

His conclusion: "Because both controlling precedents and the common law make clear that the Board members' votes were legislative, they enjoy a legislative privilege from discovery about their votes. We should reverse the district court."

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The thing to understand about this decision is that it is about explanation, not about outcomes. Florida law already made the Board's votes public, required them to happen at noticed open meetings, and under Policy 2522 required the Board to say why. None of that was in dispute. What the plaintiffs wanted, and what they can now pursue, is the step past the public record: sworn answers from individual officials about what was actually driving them. That is a meaningfully different kind of access, and legislative privilege is the doctrine that decides who has to give it.

That is also why it would be a mistake to read this as a government-transparency ruling in any direct sense. It is adjacent to transparency law because it governs how much a citizen can make an official account for a decision. It is not a records ruling, it construes no records or open-meetings statute, and anyone reading it as a win or loss for open-government law is reading it wrong.

The more consequential point is doctrinal, and it is about how an official structures a decision rather than what the decision is. Under this opinion, the shielded act in Escambia County was writing the rule. The exposed act was deciding that a particular book broke it. Officials across Alabama, Florida and Georgia who adopt a broad standard and then apply it case by case in public votes now have an opinion telling them the second half of that sequence can be examined under oath. Officials who make the same substantive choice by amending the policy itself are in the posture the panel described as legislative. That is a real asymmetry, and it rewards a drafting style, which is an uncomfortable thing for a privilege to do.

It is worth taking the panel at its word that this is narrow. It said so twice, it refused to bless the proposition that every stocking or removal decision is administrative, and it left every other privilege and discovery objection on the table. A district court could still trim these depositions on grounds nobody has litigated yet.

The dissent is the part of this opinion most likely to matter in the long run, and not because of books. Chief Judge Pryor is making a methodological argument that reaches well past school libraries: that "administrative" in the circuit's legislative-privilege cases is a nineteenth-century synonym for "ministerial," that the modern management-flavored reading of the word has quietly rewritten the test, and that the governing question should be discretionary-versus-ministerial plus public-versus-private rather than policymaking-versus-application. If that framing ever carries a majority, a lot of settled local-government immunity and privilege law shifts with it. The majority's response, essentially that circuit precedent is on point and uncited 1880 authority is not, is a reasonable answer from a panel bound by its own case law. It is not an answer to the historical claim.

For the ordinary reader the honest summary is short. In three states, legislative privilege is no longer an answer to a deposition subpoena about a vote applying an existing policy, although other objections to these particular depositions remain unruled on. Whether any answers eventually given help the plaintiffs, and whether removing the books was lawful, are questions this opinion does not touch.

What Happens Next

The immediate effect is procedural. The Eleventh Circuit affirmed, so the district court's orders stand and the case returns to the Northern District of Florida for discovery on the schedule that court sets. The panel's carve-out means the Board members may not be asked why they adopted Policy 4.06, Policy 2522, Policy 2520 or the June 17, 2025 directive, but may be asked why they concluded particular books failed those policies.

Three things remain genuinely open, and they are open as procedure, not as prediction.

The first is further appellate review. A losing party in a federal court of appeals may seek panel rehearing or rehearing en banc, or petition the Supreme Court for certiorari. The opinion itself says nothing about any such request, and as of October 23, 2026, the most recent date on the Eleventh Circuit's published-opinions index when we checked it, no amended or substituted opinion in either docket had been posted.

The second is the other objections the panel preserved. Because it expressly declined to address "whether other privileges or discovery rules may warrant quashing these subpoenas, curtailing the depositions, or the like," the district court can still be asked to narrow the depositions on grounds this appeal did not reach.

The third is the merits. The First Amendment case, No. 3:23-cv-10385-TKW-ZCB in the Northern District of Florida, is undecided. Turning any of this into a merits ruling would take the ordinary route: the district court resolves the First Amendment claims, enters a judgment, and a party appeals that judgment. Only then would an appellate court have the removal question itself in front of it. Nothing in the October 19, 2026 opinion does that work, and nothing in it signals how it would come out.

We will update this page as the docket moves.

This is general legal information, not legal advice. It describes a published October 19, 2026 Eleventh Circuit decision governing federal courts in Alabama, Florida and Georgia, and provisions of Florida law, as verified on October 25, 2026. Privileges, discovery rules and statutes change, and how any of this applies turns on facts we do not know. Consult a licensed attorney in your state about your own situation.

Related articles

• Florida public records laws: what the state requires and what it exempts
• Public records laws across the United States
• A Florida appellate ruling on public records exemptions
• Recording rules in Florida schools

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Last updated: 2026-10-25. This is a developing story; details verified as of 2026-10-25.

Frequently Asked Questions

Can school board members be forced to testify about why they removed library books?

In the Eleventh Circuit, after this October 19, 2026 decision, legislative privilege did not shield the Escambia County School Board members from depositions about votes applying an existing policy to specific books. The panel stressed that it held only that, on the facts of this case, those votes were not legislative acts, and it left open whether other privileges or discovery rules might still limit the depositions. Nothing here is a general rule that every board member everywhere must testify about every decision.

What is legislative privilege?

It is a protection against being compelled to give evidence about legislative acts. For state and local officials in federal court it comes from federal common law under Federal Rule of Evidence 501, not from the Constitution's Speech or Debate Clause. The Eleventh Circuit described it as protecting against inquiry into acts occurring in the regular course of the legislative process and into the motivation for those acts, quoting United States v. Brewster, 408 U.S. 501, 525 (1972).

Does legislative privilege apply to local officials like school board members?

It can, but it depends on the act rather than the office. The Eleventh Circuit noted that nobody disputed that local school boards exercise a mix of proprietary, administrative and legislative powers, and that the official claiming the privilege bears the burden of showing the particular act was legislative. In this case the panel held that adopting the Board's policies and its June 17, 2025 directive were legislative acts that cannot be probed, while applying those policies to particular books was administrative.

Did the Eleventh Circuit rule that the Escambia County book removals were illegal?

No. The court decided a discovery question only. It did not decide whether removing the books violated the First Amendment, and its opinion says the holding is limited to whether the votes were legislative acts for privilege purposes. The First Amendment case is still pending in the Northern District of Florida, No. 3:23-cv-10385-TKW-ZCB, and was undecided as of October 25, 2026.

Are Florida school board deliberations about library books open to the public?

Florida law makes much of the process public. Section 1006.28(2)(a)4. and 5. of the Florida Statutes require that meetings of committees convened to rank, eliminate or select instructional materials, and committees convened to resolve a parent or resident objection, be noticed and open to the public in accordance with section 286.011. Section 286.011(1) declares meetings of county and other local boards at which official acts are taken to be public meetings open at all times, and section 286.011(2) requires that minutes be promptly recorded and open to inspection. That is separate from the federal privilege question this appeal decided.

What is Florida's school library book objection law?

Section 1006.28 of the Florida Statutes. It makes each district school board responsible for the content of materials in classrooms and school and classroom libraries, and requires each board to adopt a policy describing a process for objections by a parent or a county resident. An objector may try to show that material is pornographic or prohibited under section 847.012, depicts or describes sexual conduct as defined in section 847.001(19), is not suited to student needs and their ability to comprehend it, or is inappropriate for the grade level and age group.

How fast does a challenged book come off the shelf in Florida?

Under section 1006.28(2)(a)2. of the Florida Statutes, material objected to on the pornography or sexual-conduct grounds must be removed within 5 school days after receipt of the objection and must remain unavailable to students of that school until the objection is resolved. The same subsection limits a county resident who is not a parent or guardian of a student with access to the materials to objecting to no more than one material per month.

What can a Florida parent do if a board keeps a book they objected to?

Section 1006.28(2)(a)6. lets a parent who disagrees with the board's determination ask the Commissioner of Education to appoint a special magistrate, who must be a Florida Bar member in good standing with at least five years of experience in administrative law, and who issues a recommended decision to the State Board of Education within 30 days of the request. The implementing rule is Florida Administrative Code Rule 6A-1.094126, effective September 26, 2023. This is general information about the statutory process, not advice about any particular objection.

Which states does this ruling bind?

The Eleventh Circuit covers Alabama, Florida and Georgia, so federal district courts in those three states are bound by it. Courts elsewhere may find it persuasive but are not required to follow it. The decision also concerns federal common-law privilege in federal civil discovery, so it does not itself govern what a state court would do with a state-law privilege claim.