Can a Florida School District Ban a Children's Book About Gay Penguins?

The answer's more complicated than you might think.

The authors of a popular children's book which depicts two male penguins who raise a chick together are suing a Florida school district after it barred students in kindergarten through third grade from accessing the book in district libraries. The suit argues that the ban violates the First Amendment by depriving children of their constitutional right to access information and engaging in viewpoint discrimination against the authors.

Following the passage of the Parental Rights in Education Act, public schools in Florida were banned from engaging in classroom discussions on "sexual orientation or gender identity" in kindergarten through third grade "in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards." In April, the Florida Board of Education voted to expand the ban to all grades, with narrow exceptions for age-appropriate health education.

While neither law explicitly mentions school libraries, many schools began to remove books from their libraries out of concern that books' subject matter would violate the ban. One of those frequently targeted books was And Tango Makes Three, a picture book published in 2005 that tells the story of two male penguins who mate and eventually raise a chick together, written by Peter Parnell and Justin Richardson. The book has been the subject of frequent ban attempts due to its depiction of same-sex parents.

According to the lawsuit, public schools in Lake County barred access to the book for children in kindergarten through third grade sometime before December 2022. A public records request found that the school district justified this decision by citing the book's "content regarding sexual orientation/gender identification prohibited in [the Parental Rights in Education Act]."

The lawsuit argues that this ban constitutes illegal viewpoint discrimination. "They barred students from accessing Tango because of its content," notes the complaint. "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 complaint adds that similar stories featuring heterosexual relationships have not received the same treatment and that the ban violates students' First Amendment right to receive information.

While professors at public colleges have broad First Amendment protection for teaching decisions, public K-12 school teachers and students have much narrower expressive rights. Local and state governments have broad discretion to determine what should be taught in K-12 classrooms, making it more difficult to challenge book bans.

While the U.S. Supreme Court ruled in favor of a student challenging a school board's decision to remove several books from his school library in 1982, the case divided the Court and resulted in no majority opinion. This has led to an unclear precedent about the legality of school library book bans. Just last year, an effort led by the American Civil Liberties Union (ACLU) to block the removal of several books about "people of color, LGBTQ+ people, and other marginalized groups" from a school district's libraries was rejected by a federal judge in Missouri. 

"For Plaintiffs to have a fair chance of prevailing on their First Amendment claim, the First Amendment would need to prohibit public school officials from removing a limited amount of books from their library shelves or the First Amendment would need to prohibit public schools from temporarily removing books from their library shelves while they determine the books' suitability," wrote Judge Matthew T. Schelp in his denial of the ACLU's request for a preliminary injunction. "Plaintiffs have not coherently explained how the First Amendment prohibits either."