Law & Courts

Authors and Students Sue Florida Education Officials to Restore Access to Banned Book

By Eesha Pendharkar — June 21, 2023 | Updated: June 21, 2023 4 min read
A copy of the book "And Tango Makes Three" is seen on a bookstore shelf on Nov. 16, 2006 in Chicago. The illustrated children's book is based on a true story of two male penguins in New York City's Central Park Zoo who adopted a fertilized egg and raised the chick as their own.
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Updated: This story has been updated with a response from the Florida department of education.

The authors of one of the most banned picture books in the country—along with six students—are suing a school district in Florida and state education officials for restricting access to the book.

The lawsuit, filed in federal court this week, argues that the Lake County school district banned the illustrated children’s book, And Tango Makes Three, for grades K-3 because it contains LGBTQ+ characters, citing Florida’s Parental Rights in Education law, dubbed by critics as the “Don’t Say Gay” law.

The authors and students argue that restricting younger students’ access to the book violates the First and 14th Amendments, according to the lawsuit.

The lawsuit also calls the state law unconstitutional, and the authors and students are suing the state board of education and the state’s commissioner of education Manny Díaz Jr. for enforcing the state law.

“Children in Florida should have the opportunity to read this wholesome, beloved, highly-lauded book,” said Faith E. Gay, who leads the plaintiffs’ law firm, Selendy Gay Elsberg, in a statement to Education Week.

All student plaintiffs attend or will start attending elementary schools in Lake County. Some of them identify as LGBTQ+, have family members that are part of the community, or are just interested in learning about non-traditional family structures, according to the lawsuit. They all want access to And Tango Makes Three at school because they are drawn to the book’s depiction of LGBTQ+ characters, or want to read about animals, or find the illustrations appealing, the lawsuit says.

“Any law that bans Tango runs roughshod over our most basic constitutional principles of freedom of speech and expression.”

And Tango Makes Three, coauthored by Peter Parnell and his husband, Justin Richardson, and illustrated by Henry Cole, was banned in four Florida districts and one Texas district last year, according to PEN America, a free speech advocacy group that tracks book bans. The book is recommended for children between 4 and 8 years old, according to its publisher.

The book tells the real story of two male Central Park Zoo penguins, Roy and Silo, who hatched and adopted a baby penguin named Tango with the help of a zookeeper.

This appears to be the second lawsuit filed against a Florida district over access to library books, and the first one filed in the state over a specific title.

The first one was filed last month by one of the nation’s largest publishers, Penguin Random House, along with other plaintiffs, against the Duval County school district.

Plaintiffs are seeking restored access to the book

The plaintiffs allege that the district’s removal of the book for K-3 readers for “illegitimate, narrowly partisan and political reasons,” violates the authors’ free speech rights and the students’ rights to receive information under the First Amendment.

The lawsuit also claims that Florida’s state law and its expansion violate the due process clause of the 14th Amendment and should be void for being vaguely worded.

The authors said in a statement that they brought this suit “to affirm the American principle that no child should be denied access to age-appropriate information in school because of the beliefs and biases of some; to defend students’ right to read a heartwarming story of difference, acceptance, and love; and to protect authors from censorship rooted in intolerance.”

They want to ensure that And Tango Makes Three is available to any children interested in learning about animal behavior and family structures, whether similar to or different from their own, according to the statement.

The lawsuit asks for a preliminary injunction requiring the Lake County district to restore students’ access to the book across grade levels before the first day of school of the next school year, which is on August 10.

It also asks for a permanent injunction prohibiting the state board of education and commissioner from enforcing the state law to require the removal or restriction of library books, or alternatively, a permanent injunction prohibiting the defendants from enforcing the law at all.

Lake County’s removal of the book

Last December, when the district banned And Tango Makes Three for K-3 students, it cited Florida’s law, which at the time banned classroom instruction about gender identity and sexual orientation only for elementary students. The law has since been expanded to ban instruction on those topics for all grades.

That law is one of three in Florida that have led to several books being banned across the state, experts previously told EdWeek.

The state law does not include restrictions on library materials. However, a lot of library books are used for instruction, said Lake County spokesperson, Sherri Owens in an email to Education Week, which is why the district cited the law as the reason for restricting access to the book.

“We use nearly all of our books for instruction at those grade levels because we do reading with conferring, which involves teachers working with students as they read and discuss the content to ensure comprehension,” Owens said.

Even though the law has since been expanded to ban those topics for all grades, the district has “made no changes regarding restrictions on the book,” she said. Owens also declined to comment on pending litigation.

The Florida department of education, which Díaz heads, does not comment on pending litigation, said Cassie Palelis, press secretary for the department.

State board of education members did not respond to multiple requests for comment.

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