School-Board Book Removals Under Existing Policies: Administrative Acts Outside Legislative Privilege

1. Introduction

This decision addresses the boundary between a school board’s legislative authority to establish library policies and its administrative responsibility to apply those policies. The immediate question was whether members of the Escambia County School Board could invoke legislative privilege to avoid depositions about their reasons for removing particular books from school libraries.

The plaintiffs included PEN American Center, Inc., authors, parents, and Penguin Random House. They alleged that the challenged book removals violated the First Amendment. During discovery, they sought testimony from individual Board members about their motivations. The members maintained that their removal votes were legislative acts and therefore protected from compelled inquiry.

The Eleventh Circuit affirmed the denial of protective orders and motions to quash. Its central distinction was functional: adopting a policy is legislative, but determining that particular books violate an already adopted policy can be administrative. On this record, the challenged removal votes fell into the latter category.

The decision does not establish that the removals violated the First Amendment. Nor does it make every school-library decision administrative. Its significance lies in identifying which governmental function the Board performed when it made these particular decisions.

2. Background: The Statutory Framework and Challenged Removals

Florida law and the Board’s policies

Florida Statutes § 1006.28 assigns local school boards responsibility for instructional and library materials. The statute requires discontinuing materials that meet specified criteria, including pornography, certain depictions or descriptions of sexual conduct, unsuitability for students’ comprehension, or inappropriateness for the relevant grade level or age group.

The Board implemented these requirements through successive policies:

• Policy 4.06: Established standards for materials and a process for objections. Depending on the circumstances, the Superintendent could remove materials or refer an objection to a District Materials Review Committee. A dissatisfied complainant could appeal to the Board.
• Policy 2522: More explicitly connected the objection process to Florida’s statutory criteria. It required the Board to announce whether challenged materials satisfied the policy and to state its reasons when removing them.
• Policy 2520: Required specific Board approval before selecting books that other districts had removed.
• The June 17, 2025 directive: Instructed the Superintendent to eliminate pornographic or age-inappropriate books identified on the Florida Department of Education’s removal list, without further review.

Florida law also permits a parent dissatisfied with a decision retaining a book to seek a state-level review involving a special magistrate with administrative-law experience. As described in the opinion, this review concerns whether the district followed the required procedures, rather than a general reconsideration of the substantive merits.

The three categories of removals

The teacher’s original objections included descriptions such as “LGBTQ agenda” and “race-baiting,” alongside objections concerning sexual content and language. Those were the complainant’s characterizations, not appellate findings about the books. The appeal did not determine whether those objections established unconstitutional viewpoint discrimination.

Procedural history

The district court initially denied the Board’s request for a protective order, reasoning that the challenged votes involved specific facts and case-by-case application of existing standards. After the plaintiffs served individual Board members with deposition notices and subpoenas, the members separately sought protective orders and moved to quash. The district court denied those requests for the same reasons, producing the consolidated appeals.

The Eleventh Circuit reviewed the subpoena rulings for abuse of discretion. Under that standard, applying an incorrect legal rule or making a clear error of judgment constitutes an abuse of discretion.

3. Summary of the Opinion

The majority’s conclusions can be summarized in five propositions:

1. Legislative privilege protects legislative activity, not an official’s every act. A school board exercises several kinds of governmental authority, so the nature of the particular conduct matters.
2. The privilege claimant bears the burden. The Board members had to establish that the removal votes were legislative acts.
3. The relevant policies were legislative enactments. Adopting Policies 4.06, 2522, and 2520, and issuing the June 17 directive, involved policymaking protected from the proposed inquiry.
4. The challenged removal votes were administrative applications. They determined whether particular books satisfied previously established standards; they did not create, repeal, or amend those standards.
5. Other discovery protections remain available. The ruling rejects legislative privilege for these votes but does not decide whether other privileges or discovery rules justify limiting the depositions.

Chief Judge William Pryor dissented. He considered the votes discretionary decisions of a public character and therefore legislative under the common-law foundation of the privilege.

4. Legal Reasoning: Distinguishing Policymaking from Policy Application

A functional inquiry, not an institutional label

Federal Rule of Evidence 501 supplied the common-law framework. The majority accepted that state and local legislators possess legislative privilege, including protection against compelled testimony about their motives for legislative acts. But membership in a legislative or mixed-function body does not itself establish that protection.

The Board’s role therefore had to be examined act by act. It acted legislatively when it selected governing standards and designed the objection process. It acted administratively when it decided that identified books failed those standards.

The sequence of decisions mattered

The majority traced the allocation of functions from state legislation to local implementation. Florida established substantive requirements; the Board incorporated those requirements into policies and adopted procedures; administrators, committees, and ultimately the Board applied those rules to particular materials.

This sequence supported a clear stopping point for the legislative process. The Board’s later involvement did not restart policymaking merely because the final decision required a vote.

Both form and substance supported the classification

The original removal proceedings resembled adjudication of individual disputes. The agendas referred to citizen challenges and appeals. The Board considered records concerning particular books and decided whether those materials complied with the existing framework.

The Superintendent-initiated removals had a different procedural origin but the same substantive character. The recommendations expressly invoked existing policy, statutory standards, or the June directive. The Board approved their application to specified titles.

The majority also emphasized that the Superintendent already possessed authority to perform the relevant removal functions. Seeking Board approval did not transform an administrative determination into legislation. This was supporting evidence about the nature of these decisions, not a universal rule that any task delegated to an administrator is necessarily nonlegislative.

Administrative discretion is not legislative discretion

The Board members argued that evaluating age appropriateness, sexual content, and educational suitability necessarily involved judgment. The majority agreed that the decisions were not mechanical. It nevertheless distinguished discretion in applying a rule from discretion in deciding what the rule should be.

That distinction is the opinion’s analytical center. Licensing officials, personnel managers, and other administrators routinely exercise substantial judgment. If discretion alone established legislative status, much executive and administrative activity would acquire legislative protection.

Motive becomes discoverable only after the act is classified

The plaintiffs acknowledged that they wanted to question the members about their motivations. That concession would have been decisive against them had the challenged acts been legislative. But a desire to investigate motive does not itself create legislative privilege. The court first had to identify the function performed; only then could it determine whether motive inquiry was barred.

The majority thus did not balance the importance of the First Amendment claims against an otherwise applicable privilege. It concluded that the privilege never attached to these particular administrative acts.

5. Precedents Cited and Their Influence

A. The governing scope of legislative privilege

United States v. Brewster, 408 U.S. 501 (1972), supplied the foundational protection for acts occurring in the regular legislative process and the motivations behind those acts. The majority used that formulation to ask whether the challenged votes belonged to legislative activity at all—not simply whether elected officials performed them.

Pernell v. Fla. Bd. of Governors of State Univ., 84 F.4th 1339 (11th Cir. 2023), established the federal common-law privilege for state and local legislators. The dissent also invoked its emphasis on protecting the uninhibited discharge of legislative duties for the public good. The disagreement concerned the acts covered, not the privilege’s existence or institutional importance.

In re Hubbard, 803 F.3d 1298 (11th Cir. 2015), supplied both the review standard and the proposition that the privilege covers proposing, formulating, and passing legislation. It also supported using legislative-immunity decisions to identify legislative activity for privilege purposes. The majority repeatedly returned to its formulation because the book-specific votes neither formulated nor passed a governing rule.

B. The central policymaking/application distinction

Crymes v. DeKalb County, 923 F.2d 1482 (11th Cir. 1991), was the majority’s principal authority. It distinguished policymaking from the “mere administrative application of existing policies” and treated reliance on specific rather than general facts as an indicator of administrative action.

The majority considered the analogy direct: deciding whether a particular book violated an existing library policy resembled applying an existing land-use framework to a development-permit application. By contrast, amending a county code to change a truck route involved legislation.

The dissent read Crymes v. DeKalb County more narrowly. Drawing on Crymes Enters., Inc. v. Maloof, 389 S.E.2d 229 (Ga. 1990), it argued that the permit decision there was compelled by the absence of required approval and therefore ministerial. On that account, the case did not establish that discretionary application of existing standards is generally administrative. This competing interpretation explains much of the panel’s division.

C. Traditional legislative activity and the importance of policymaking

Bogan v. Scott-Harris, 523 U.S. 44 (1998), recognized legislative protection for local officials and examined whether conduct was legislative in substance and form. Introducing a budget and participating in enactment of an ordinance illustrated traditional legislative activity.

For the majority, the critical feature was the “discretionary, policymaking” character of protected conduct. The removal votes lacked that character because the standards already existed. For the dissent, Bogan v. Scott-Harris required closer attention to historical common law, under which discretionary acts of a public character received protection. Both opinions treated the case as controlling but emphasized different aspects of its reasoning.

The majority’s other examples of recognized legislative functions reinforced that comparison:

• Tenney v. Brandhove, 341 U.S. 367 (1951), concerned a legislative committee investigation.
• Espanola Way Corp. v. Meyerson, 690 F.2d 827 (11th Cir. 1982), illustrated an executive veto as participation in legislative activity.
• Women's Emergency Network v. Bush, 323 F.3d 937 (11th Cir. 2003), identified signing a bill as legislative conduct.

These authorities showed that function controls: an executive official may participate in legislation, while a Board member may perform administration.

D. Zoning amendments versus application of zoning rules

Baytree of Inverrary Realty Partners v. City of Lauderhill, 873 F.2d 1407 (11th Cir. 1989), generated an express disagreement. The case protected officials involved in denying an application to rezone property.

The dissent regarded it as proof that a fact-specific decision about a single application can be legislative, even within a process involving recommendations and review. The majority answered that the application requested an amendment to the zoning ordinance. Refusing to change the law, like adopting it, remains a policymaking decision.

The resulting distinction is important: specific subject matter does not automatically make an act administrative. A decision concerning one parcel—or potentially one book—may still be legislative if it establishes or changes governing policy. What mattered here was that the Board applied existing policies rather than reconsidering them.

E. Investigations connected to a legislative function

Ellis v. Coffee County Board of Registrars, 981 F.2d 1185 (11th Cir. 1993), involved an investigation of voter eligibility connected to drawing district lines under a consent decree. The majority distinguished it because the investigation served an identifiable legislative function: redistricting.

Moore v. Brown, 448 U.S. 1335 (1980), reinforced the understanding that drawing political boundaries ordinarily belongs to the legislative process. No comparable legislative project connected the challenged book removals to policy formulation.

The dissent relied on the broader conception of legislative deliberation reflected in the voter-investigation precedent and in Cole v. Gray, 638 F.2d 804 (5th Cir. 1981), which treated an investigation targeting an individual as legislative. These cases demonstrate that factual specificity alone is not disqualifying; the investigation’s relationship to legislative work remains essential.

F. A vote is not necessarily a legislative act

The Board members relied on DeSisto College, Inc. v. Line, 888 F.2d 755 (11th Cir. 1989), which described voting, debate, and responses to public opinion as furthering legislative duties. The majority rejected the inference that voting always establishes legislative status. Those activities were protected because of the duties they furthered in that case.

Hernandez v. City of Lafayette, 643 F.2d 1188 (5th Cir. Unit A June 1981), supplied the underlying formulation concerning actions furthering legislative duties. Conversely, Cinevision Corp. v. City of Burbank, 745 F.2d 560 (9th Cir. 1984), supported the proposition that a vote alone does not establish legislative capacity.

The dissent accepted that not all votes are legislative but considered these votes integral to the Board’s statutorily assigned public responsibilities. The majority required a more specific connection to making policy.

G. Administrative activity can involve significant judgment

Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056 (11th Cir. 1992), distinguished protected legislative functions from administrative conduct, including personnel decisions. It also supplied examples of administrative activity involving licensing and institutional management.

Smith v. Lomax, 45 F.3d 402 (11th Cir. 1995), treated an employment-related vote as administrative. Polenz v. Parrott, 694 F. Supp. 599 (E.D. Wis. 1988), appeared through the discussion of license denials as nonlegislative conduct.

Minton v. St. Bernard Par. Sch. Bd., 803 F.2d 129 (5th Cir. 1986), linked legislative functions to discretion and public policymaking. Sammons v. Taylor, 967 F.2d 1533 (11th Cir. 1992), illustrated that executive officials also perform discretionary acts, sometimes protected by qualified immunity. The majority did not decide that the Board members possessed qualified immunity; the comparison simply defeated the equation of discretion with legislation.

The dissent distinguished personnel precedents on a different ground: employment decisions resemble private business activity and directly affect particular individuals, whereas school-library decisions concern a public duty. That public/private distinction was not the majority’s controlling test.

H. Supporting authorities on burden, procedure, and governmental functions

6. The Dissent: Historical Discretionary-Act Immunity

The competing rule

Chief Judge William Pryor would have reversed. His proposed dividing line was between discretionary public acts, which he considered legislative, and ministerial or private acts, which were not.

On that view, assessing educational suitability and age appropriateness necessarily involves public-policy judgment. The standards do not dictate a single self-evident answer. Different Board members and different districts may reasonably reach different conclusions about the same title.

The dissent also emphasized the decisions’ prospective, district-wide effect. It described removed books as inaccessible for at least five years and considered that consequence a generally applicable policy choice, despite each vote’s focus on particular titles. That characterization did not become the majority’s governing analysis.

The historical authorities

The dissent drew extensively on nineteenth- and early twentieth-century decisions and treatises. Their significance lay in supporting its historical account, not in establishing additional holdings adopted by the court.

The dissent supplemented those cases with treatises by Dillon, Mechem, Cooley, Bishop, Throop, Williams, and Mack. Collectively, it read them as protecting discretionary public judgment to preserve governmental independence.

School-specific authorities

ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177 (11th Cir. 2009), characterized educational suitability as a core educational-policy matter within local school boards’ province. The dissent used that description to reinforce the policy-laden nature of the removals. The majority did not treat it as resolving the separate privilege classification.

Donahoe v. Richards, 38 Me. 379 (1854), described local school committees’ book selections as dependent on their judgment and discretion. Roth v. Marshall, 27 A. 945 (Pa. 1893), compared discretion over school locations with discretion over teachers and textbooks. Clark v. Bd. of Dirs., 24 Iowa 266 (1868), recognized discretionary authority over school establishment and management. A school-law treatise by Finley Burke supplied similar historical support.

The dissent’s closest factual analogy was People ex rel. Cochran v. Board of Education of Oakland, 54 Cal. 375 (1880). There, a school board’s approval of a committee recommendation changing textbooks was characterized as legislative rather than judicial. The decision rested on the board’s judgment about the best policy for its constituency, notwithstanding its consideration of particular books and a committee report.

The majority considered that authority distinguishable and unnecessary in light of binding circuit precedent. Analytically, its existence does not eliminate the majority’s distinction: choosing which textbooks to prescribe may establish policy, while deciding whether books violate already established criteria may administer policy. The dissent disputed whether that distinction adequately described the judgments made here.

Terminology, general applicability, and procedural review

Brown v. Crawford County, 960 F.2d 1002 (11th Cir. 1992), and Bryant v. Jones, 575 F.3d 1281 (11th Cir. 2009), supported the dissent’s observation that legislative acts often operate generally. It viewed district-wide exclusion of titles as satisfying that characteristic.

The dissent also cited McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994), to connect administrative and ministerial terminology. It noted that Littlejohn v. Sch. Bd. of Leon Cnty., 132 F.4th 1232 (11th Cir. 2025), recognized abrogation on other grounds. Its dictionary discussion sought to show that older references to “administrative” acts should not be read as encompassing substantial discretionary policymaking.

Finally, Denny v. Des Moines County, 121 N.W. 1066 (Iowa 1909), supported the dissent’s position that discretionary local judgments remain legislative despite attempted review mechanisms. It therefore rejected the majority’s reliance on administrative procedures as an indicator of nonlegislative activity.

The unresolved conceptual disagreement

The opinions differ less about whether these decisions involved judgment than about what kind of judgment receives legislative protection:

• Majority: Discretion must concern making policy, rather than applying an existing policy to specific facts.
• Dissent: Discretionary judgment over a public matter can itself be legislative, even when exercised through application of existing standards.

The majority’s approach controls the case. The dissent supplies a substantial competing account of the privilege’s historical scope, but it does not narrow or displace the holding.

7. Impact and Limits

Discovery in school-library litigation

The immediate consequence is that legislative privilege does not bar depositions concerning these book-specific removal determinations. Plaintiffs challenging comparable actions may be able to investigate whether officials applied announced criteria consistently or acted for other reasons.

That potential evidentiary access is important where motive forms part of a constitutional theory. But discoverability does not establish that an improper motive existed, that any testimony will be admissible, or that the plaintiffs will prevail.

No categorical exemption for votes or mass decisions

The decision prevents officials from converting administrative implementation into protected legislation simply by conducting a public vote. It also shows that the scale of an action is not decisive: implementing an existing directive through a list of 101 books did not become legislative merely because many titles were involved.

Conversely, a decision focused on one item can be legislative if it genuinely makes or changes policy. The zoning precedents demonstrate why neither numerical breadth nor factual specificity alone supplies the answer.

Preserved protection for genuine policymaking

The court expressly protected inquiry into why the Board adopted the relevant policies and the June directive. Future depositions may therefore require careful separation between questions about policy adoption and questions about applying that policy.

A question asking why a member supported a general removal standard stands differently from one asking why that member concluded that a particular book satisfied it. Borderline questions that implicate both functions may require further judicial supervision.

Broader relevance to mixed-function bodies

The reasoning may influence disputes involving local boards that combine legislative and administrative powers, including zoning, licensing, and other regulatory bodies. Its transferable principle is that institutional identity and procedural form cannot substitute for examining the particular governmental function.

Nevertheless, the court emphasized its narrow factual holding. It did not declare every decision to acquire, retain, or remove a book administrative. Nor did it decide whether other privileges or discovery rules could warrant quashing subpoenas or limiting testimony.

A significant but bounded precedent

The decision applies established legislative-function doctrine to a contested educational setting. Its principal contribution is not a new general test for legislative privilege, but a concrete ruling that these policy-implementation votes fall outside it—even though the decisions involved discretion, public concern, and elected officials.

8. Complex Concepts Simplified

Legislative privilege

A protection against being compelled to provide evidence about genuine legislative work, including the reasons for that work.

Legislative immunity

Protection against liability or suit for legislative activity. Courts consult immunity cases when identifying legislative acts, but immunity and evidentiary privilege serve different procedural roles.

Administrative act

Under the majority’s approach, applying an existing rule to particular facts. It may require difficult judgment and need not be routine.

Ministerial act

A duty performed in a prescribed way without meaningful judgment. The majority did not require an act to be ministerial before classifying it as administrative.

Policymaking discretion

Choosing the governing rule. For example, adopting an age-appropriateness standard differs from deciding whether a particular book meets that standard.

Motion to quash and protective order

Procedural requests asking a court to invalidate a subpoena or restrict discovery.

Abuse-of-discretion review

Appellate review that generally respects the trial court’s discovery management but permits correction of legal errors or clearly mistaken judgments.

Holding versus dissent

The majority’s rule controls this decision. The dissent explains a competing interpretation that may influence later debate but is not the court’s governing judgment.

9. Conclusion

The Eleventh Circuit affirmed a focused distinction: legislative privilege protects making school-library policy, but it did not protect these decisions applying existing policies to identified books.

The ruling preserves protection for genuine legislative deliberation while allowing discovery into the challenged administrative determinations. Its broader significance is that elected status, public importance, discretion, and a formal vote do not, without more, make an act legislative. The underlying First Amendment claims remain unresolved.