In Pen American Center, Inc. v. Bergosh, No. 25-13298 (11th Cir. Oct. 19, 2026), a 2-1 panel holds that school board members could be compelled to testify about why they determined to remove certain titles from the school library, over a legislative-privilege objection. Judge William Pryor dissents.
Plaintiffs (including a free-speech advocacy group, parents in the school district, authors, and a publisher) challenged, on First Amendment grounds, the board’s removal of certain titles under a state law “that requires its employees to remove any library or instructional materials that are, among other things, pornographic, or that ‘depict[] or describe[] sexual conduct.’” The school board adopted a policy prescribing how books are to be selected for removal, including “a process for members of the public to object to material as falling under this standard” and a right to appeal adverse decisions to the Board.
“After the Board members voted several times to remove books under this policy, the plaintiffs in this case sought to depose them about why they did so. In response, the Board members have invoked legislative privilege to bar these depositions. Legislative privilege protects its holder from being compelled to testify about his or her legislative acts. United States v. Brewster, 408 U.S. 501, 525 (1972). But it does not protect against being compelled to give evidence about administrative or other nonlegislative acts.”
The defendants moved for a protective order (and later a motion to quash) to avoid testifying, but the district court denied this relief on the ground that “that legislative privilege did not apply because the book removal votes were administrative acts.”
The panel (2-1) affirms the denial of relief.
“Federal common law, which applies to evidentiary privileges in federal court, FED. R. EVID. 501, provides a legislative privilege to state and local legislators.” Yet the line between legislative and other acts by such officeholders can be difficult to discern. The Eleventh Circuit places on the legislative side of the line such actions as “voting on legislation, speech-making on the floor of a legislative assembly, preparing committee reports, participating in committee investigations and proceedings, introducing a budget, issuing an executive veto, and proposing, formulating, or passing legislation.” [Citations omitted] the burden of establishing the applicability of the privilege is on the party asserting it.
“[L]ocal school boards exercise a combination of proprietary, administrative, and legislative powers. The parties’ dispute is about whether the Board members have met their burden to establish that their votes to remove these specific books are legislative acts.” The panel majority holds that board members did not meet the burden here because, as opposed to policymaking, the Board’s “votes to remove specific books [w]as an application of those policies” previously adopted.
“Under the Board’s policies, the Superintendent and the District Materials Review Committee are charged with applying the Board’s policies to specific books and removing those books that fail.” Under the Board’s policy, “the complainant can appeal to the School Board. But, at that point, the School Board—like the committee—asks only whether a challenged book fails under preexisting policies.” In the panel majority’s eyes, this is administration rather than policymaking. This is further reinforced by the additional step that an appeal of the Board’s decision is assigned to a magistrate judge for review. “The legislative process is ordinarily not constrained by administrative law.”
“When it voted on whether to remove these books, the Board was doing no more than what the Superintendent could already do. The Board had exercised its policymaking discretion by passing Policy 4.06, Policy 2522, Policy 2520, and the June 17, 2025, directive. Policy 4.06 and Policy 2522 authorized the Superintendent to remove or restrict books if he found that the books violated the policies’ standards or Florida law . . . . Just as the Superintendent was not exercising legislative power when he determined that these books violated existing policy, the Board was not exercising legislative power when it agreed with him.”
Thus, although the Board’s action is in the form of a vote, that does not by itself confer privilege. “[U]nder our precedents, the key inquiry is what the vote was about,” whether furtherance of legislative duties or applying that policy to specific cases. Thus, the panel majority notes that a local board’s denial of a license or approval of a hiring decision is considered administrative, not legislative.
Nor does the exercise of discretion change the nature of the act. “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.”
“Determining whether and to what extent the privilege applies . . . requires careful consideration of the particular circumstances presented. 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.”
Dissenting, Judge Pryor would place the removal decisions on the legislative side of the line. The policy, by the dissent’s light, requires legislative assessment of the challenged book based on a variety of factors prescribed by state law. “In assessing those factors, Board members make discretionary decisions. Their decisions are based on the evidence presented, public input, and the members’ individual judgment. Underscoring the discretionary nature of their votes, the Board members were not always in agreement on these thorny policy judgments, and different boards have reached different conclusions about the same books . . . . Those disagreements reveal the discretionary and legislative nature of the Board members’ decisions.”
