Court OKs Florida school board to interrogate 7-year-old student in book ban litigation

A federal judge is letting a Florida school board take a shortened deposition of a 7-year-old student who is among a group of plaintiffs accusing it of violating the First Amendment because of its book bans.

Escambia County School Board members have OK'd the removal and restriction of a broad swath of school library books. They include "And Tango Makes Three," a children's picture book detailing the true story of a same-sex penguin pair at a New York City zoo.

The 7-year-old, identified as "J.N." in court records, says she wants to check it and other titles out at her school library.

U.S. Magistrate Judge Zachary Bolitho said in a Monday ruling that a "limited" deposition wouldn't be unduly burdensome for the child.

A deposition is out-of-court testimony given under oath by a witness or another involved in a case, often at an attorney's office. Depositions usually entail someone taking questions — sometimes heated ones — from attorneys.

"Given the circumstances of this case, the Court finds good cause to believe that a seven-hour deposition of J.N. at a location chosen by Defendant School Board would be unduly burdensome," Bolitho wrote. "The Court, therefore, will exercise its discretion to limit Defendant School Board’s deposition of J.N. to ninety minutes."

The judge also said the student's parents could determine whether the deposition occurs virtually or in-person, and that one of them could attend it.

"Only J.N. can testify as to her thoughts, interests, desires, and efforts to access the books at issue in this case," Bolitho wrote in the order.

Ann Novakowski, J.N.'s mom and another plaintiff in the lawsuit, had argued that the judge should deny the school board's deposition request.

"It would require young J.N. to devote time away from family and friends to prepare for her testimony and to face questioning by opposing counsel in deposition – an experience that is enormously difficult and stressful for adults, let alone a seven-year-old," she wrote in a recent motion, adding that she can speak in lieu of her child.

But the school board had responded that those suing shouldn't use the child's age “as a sword by which to challenge the actions of the Board, only to then use her minority status as a shield to prevent either her participation in the suit she brought or the Board from defending itself from Plaintiff’s claims.”

J.N. and her mom joined other student and parents as plaintiffs in the lawsuit, as well as national free expression group PEN America, publisher Penguin Random House and book authors.

Not everything has gone the board's way

As the defendants argued they should be able to question the elementary schooler, they also said they should be shielded from depositions.

But Bolitho ruled against that last week, saying Escambia County's school board and superintendent don't have such protections. But the ruling approves the officials to file another request for more consideration.

That came following a similar decision by U.S. District Judge Allen Winsor in a separate case, this one filed against Escambia County school officials by the authors of "And Tango Makes Three." Winsor also said the officials can file a revised request.

"Escambia says we cannot impute a single member’s motives to the whole board. True enough," Winsor wrote, in part, in a July 10 ruling.

"But a single member’s motives could move the needle somewhat in determining the Board’s motives. Regardless, Plaintiffs seek the deposition of all members. Evidence that all (or even most) of members had some sort of unlawful motive would move the needle much more."

This reporting content is supported by a partnership with Freedom Forum and Journalism Funding Partners. USA Today Network-Florida First Amendment reporter Douglas Soule can be reached at DSoule@gannett.com.

This article originally appeared on Tallahassee Democrat: Florida school board can question 7-year-old student in book ban case