Email exchanges show attorneys’ confusion and frustration over Florida’s new education laws

After Florida lawmakers passed laws requiring more transparency over what kind of books children can take out from the school library, a handful of local school district attorneys found themselves emailing one another, wrangling over whether the “mere mention” of the word masturbation in a book could land a school in trouble.

“A question has arisen among our terrified media specialists about masturbation,” said Ellen Odom, general counsel for the School Board of Escambia County. “Does anyone read the new legislation so strictly that the mere mention of the concept is prohibited(?)“

“I don’t think the word masturbation appearing in a book is sufficient, but we have all seen what people are challenging,” chimed Brian Moore, general counsel for the Florida Association of District School Superintendents, “but going too far down that road would mean banning Florida statutes and the Bible, because both mention it.”

“How graphic does it have to be to satisfy” state statute and “what’s the definition of deviate sexual intercourse?” asked Paul Gibbs, general counsel for the School Board of Brevard County. “I don’t know how we protect staff here without banning every single book that has any type of coming of age story line.”

The questions were recorded in email exchanges between a handful of Florida school board attorneys and representatives from the Florida Association of District School Superintendents, the state superintendent group. Florida Freedom to Read Project, a group that advocates open access to books and information, obtained the emails through a public records request to districts and shared them with the Miami Herald.

The emails — sent between April 2022, just after that year’s Legislative Session, and May 2023 — highlight the confusion and uncertainty the state’s new education laws have created not only among educators, but also with the lawyers providing guidance to schools on how to follow them.

“This is the problem with the legislature trying to utilize statutory definitions of criminal codes for something entirely different. No one knows what to include or not include,” Gibbs wrote in May.

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The exchanges — and the apparent inability to decipher what exactly is being asked of school districts — is a sharp departure from the ways lawyers previously came to agreements on what a piece of legislation required, John Bowen, a former school board attorney in a handful of Florida districts, including Orange, Pinellas and Manatee counties, told the Herald.

“I’ve generally always been comfortable saying, ‘This is what this statute or regulation means,’ but not so with the current round of legislation and regulations coming out of Tallahassee,” the retired attorney said. Bowen, who began representing school boards in the 1970s, is still an active member of the Florida School Board Attorneys Association and participates in the email exchanges, albeit mostly as an observer.

The laws are “not clear and the interpretations (state officials) give are not clear themselves,” he added. “You advise your client one way, (but) you’re not certain if it will put your client in jeopardy. It’s not a comfortable place for the attorney to be.”

State’s response: ‘Consult your local attorney’

The two laws that garnered the most discourse in the emails reviewed by the Herald were HB 1557, the “Parental Rights in Education” bill, known as “Don’t Say Gay,” which barred instruction related to sexuality and gender identity in kindergarten through third grade and was expanded to eighth grade in this year’s session.

The other law is HB 1467, passed last year and which requires districts to be “more transparent” in their selection of instructional materials, including library and reading materials.

Proponents of the bills argued they support parents’ rights and remove what they believed to be “wokeness” from education. Critics of the bills, however, including many educators and literacy organizations, pushed back on that notion, arguing they would lead to confusion among teachers and self-censorship in classrooms.

In an April 2022 email, Brian Moore, the general counsel of the superintendents’ group, sent more than a dozen questions to Jacob Oliva, the Florida Department of Education’s then-senior chancellor, requesting guidance on HB 1467, the law pertaining to transparency regarding books. (Oliva was a finalist for the Miami-Dade superintendent’s job that went to Jose Dotres in 2022. He is now the secretary of the Arkansas Department of Education.)

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The questions ranged from whether the law included teachers’ classroom libraries, if the state had a “step-by-step” process for how school media centers and specialists should approve and adopt new books, what should a teacher do “from start to finish” before suggesting a book to students, how much time media specialists have to review materials, and if there would be “additional funds to have them work after hours and in the summer”.

Other questions asked if “books purchased by parents for donation to their child’s teacher’s classroom” should be a concern for districts and if there were “any concerns about schools hosting book fairs” where a portion of the proceeds go to the school.

In a June 2022 memorandum to superintendents, Oliva detailed districts’ responsibilities for implementing HB 1467 that addressed at least some of the questions. One of his points indicated that books available to students “must be selected by a school district employee that holds a valid educational media specialists certificate,” no matter if it was purchased, donated or “otherwise made available” to students — a phrase lawyers later honed in on in one debate.

Nevertheless, a February 2023 email from Moore said, “DOE response to all questions: Please consult your local attorney.”

Representatives from the Florida Department of Education said in an email to the Herald that “exchanges from Spring of 2022 are not an accurate reflection of implementation of laws in September of 2023” and if “you would like to get a clearer picture of implementation of legislation, I would encourage you to research the numerous actions the State Board of Education has taken over the past year.”

In October 2022, the State Board of Education adopted a rule that clarified, among other things, that the term “library media centers” included classroom libraries when complying with state law that requires districts to post on elementary school websites the list of titles maintained at the school.

The department did not respond to questions regarding the attorneys’ assertions over the lack of guidance from the state.

Debates over one word, phrases

Apart from the broad, general questions submitted to the state on behalf of superintendents, the email exchanges show lawyers heavily weighing the impact of just one word or phrase included in state statute.

From July 2022 to August 2022, an email exchange debated just three words — “otherwise made available” — in HB 1467, and whether book fairs held on school grounds could make the district vulnerable to legal challenges.

If a child purchased a book from the fair that a parent believes to be inappropriate, who will be blamed for “otherwise (making) the book available” for students, the book fair or the school? Gibbs, of Brevard, asked.

David Koperski, school board attorney in Pinellas County, opined that “it would be a stretch” to think the law applies to books students can obtain outside of the school library’s catalog that are simply purchased at a fair “that happen(s) to be located in the library. What if the book fair was in the cafeteria or the courtyard?”

Another email from October 2022 was sent from John Palmerini, deputy general counsel for the School Board of Orange County, to the state Department of Education seeking guidance on how just one word — “or” — in HB 1467 should be interpreted. (The email focused on the second “or” in the statute, which reads: “Any material used in the classroom, made available in a school library, or included on a reading list contains content that is pornographic or prohibited under (Florida law), is not suited to students needs…”)

Did the word “or” require books with pornographic content be removed, “even if the book itself, taken as a whole, has serious literary, artistic, political or scientific value and is therefore not obscene/harmful to minors,” Palmerini wrote.

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‘The law is expansive’

Directives to err on the side of caution were included throughout the emails reviewed by the Herald.

In a January email to Rex Ingerick, president of the Sarasota Classified/Teachers Association — with a subject line “Cautionary Advice – School Library Materials” — teachers were told it “would be wise to keep their personal materials from students unless and until they are approved for use” by the district.

Another email sent from Palmerini, of Orange County, appeared to echo that directive, writing, “In this environment (where the mere inclusion of any openly gay character in a movie shown to elementary students is enough to have DOE investigate), shouldn’t we be advising our clients to ‘err on the side of caution’?” one said. “I think the law is expansive and it was purposely drafted to be expansive.”

The exchanges underscore what literacy advocates, educators and opponents to the laws have been expressing all along, said Raegan Miller, a Pinellas parent and co-director of Florida Freedom to Read.

While she feels a “sense of relief” and validation knowing superintendents and school board lawyers’ had similar questions she and others had, reading the lawyers’ inclination to “err on the side of caution” when providing guidance to districts and boards is concerning — especially if the default is to limit or remove something, Miller said. Doing so could preemptively remove books that would otherwise be beneficial to students.

“They’re seeing what we’re seeing,” Miller said, “which are very vague laws without a lot of direction.”