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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
No. 25-13298
PEN AMERICAN CENTER, INC.,
GEORGE M. JOHNSON,
KYLE LUKOFF,
ANN NOVAKOWSKI,
on behalf of herself and her minor child,
PENGUIN RANDOM HOUSE, LLC, et al.,
Plaintiffs-Appellees,
SARAH BRANNEN, et al.,
Plaintiffs,
versus
ESCAMBIA COUNTY SCHOOL DISTRICT, et al.,
Defendants,
KEVIN ADAMS,
Defendant-Appellant,
PAUL FETSKO,
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2 Opinion of the Court 25-13298
PATRICIA HIGHTOWER,
WILLIAM SLAYTON,
DAVID WILLIAMS,
Interested Parties-Appellants.
Appeals from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:23-cv-10385-TKW-ZCB
No. 25-13698
PEN AMERICAN CENTER, INC.,
GEORGE M. JOHNSON,
KYLE LUKOFF,
ANN NOVAKOWSKI,
on behalf of herself and her minor child,
PENGUIN RANDOM HOUSE, LLC, et al.,
Plaintiffs-Appellees,
SARAH BRANNEN, et al.,
Plaintiffs,
versus
ESCAMBIA COUNTY SCHOOL DISTRICT, et al.,
Defendants,
CARISSA BERGOSH,
TOM HARRELL,
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25-13298 Opinion of the Court 3
Interested Parties-Appellants.
Appeals from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:23-cv-10385-TKW-ZCB
Before WILLIAM PRYOR, Chief Judge, and JILL PRYOR and BRASHER,
Circuit Judges.
BRASHER, Circuit Judge:
This appeal is about whether legislative privilege shields
members of the Escambia County School Board from being compelled to testify about why they determined that specific library
books are inconsistent with the Board’s preexisting policies. As required by Florida law, see FLA. STAT. § 1006.28(2)(a)(2), the Board
has adopted a policy that requires its employees to remove any library or instructional materials that are, among other things, pornographic, or that “depict[] or describe[] sexual conduct.” Policy
4.06 at 9(D)(8), Dkt. 219-1 at 14; Policy 2522, Dkt. 219-1 at 61–62.
The Board has also adopted a process for members of the public to
object to material as falling under this standard. See Policy 4.06 at
10, Dkt. 219-1 at 14–18; Policy 2522, Dkt. 219-1 at 60–62. After a
complainant files a written objection, Policy 4.06 at 10(B)(2), Dkt.
219-1 at 15; Policy 2522, Dkt. 219-1 at 60, the Superintendent and
the Coordinator of Media Services must decide whether to remove
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4 Opinion of the Court 25-13298
the material or forward the complaint to a committee of several
community members who review all evidence submitted by the
complainant. Policy 4.06 at 10(B)(3)(d), (f)–(g), Dkt. 219-1 at 16; Policy 2522, Dkt. 219-1 at 61.
If the material is not removed as part of that process, the
complainant may appeal to the School Board within ten business
days. Policy 4.06 at 10(B)(4)(a), Dkt. 219-1 at 17; Policy 2522, Dkt.
219-1 at 62. Then, at a public meeting, the Board reviews the “appeal,” Policy 4.06 at 10(B)(4)(a)–(b), Dkt. 219-1 at 17–18, or “the
case” that is on “appeal,” Policy 2522, Dkt. 219-1 at 62, “including
all evidence proffered by the complainant,” and “shall announce
during the meeting whether the challenged material meets the requirements of this policy.” Policy 2522, Dkt. 219-1 at 62. “Any
Board action to remove material will be accompanied by the
Board’s statement of its reasons for the removal.” Id.
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. Yeldell v.
Cooper Green Hosp., Inc., 956 F.2d 1056, 1062 (11th Cir. 1992). The
district court concluded that when the Board members voted to
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25-13298 Opinion of the Court 5
remove specific books as inconsistent with the Board’s existing policies, they acted as administrators, not legislators. We agree and
affirm.
I.
Before proceeding to the merits, we outline the state law
and school board policies in the background of this appeal and then
summarize the book removal votes and procedural history of this
lawsuit.
A.
Florida law requires school boards to be “responsible for the
content of all instructional materials and any other materials . . . made available in a school or classroom library.” FLA. STAT.
§ 1006.28(2)(a)(1). Florida law also directs that if a school library
book “[i]s pornographic or prohibited under § 847.012,” “[d]epicts
or describes sexual conduct as defined in § 847.001(19),” “[i]s not
suited to student needs and their ability to comprehend the material presented,” or “[i]s inappropriate for the grade level and age
group for which the material is used,” then the district “shall discontinue use of the material” either altogether or for the relevant
age group. Id. § 1006.28(2)(a)(2)(b). The Escambia County School
Board has adopted multiple policies that require its employees to
remove any library or instructional materials that are, among other
things, pornographic, or that “depict[] or describe[] sexual conduct.” Policy 4.06 at 9(D)(8), Dkt. 219-1 at 14; Policy 2522, Dkt. 219-1 at 61–62.
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Florida law also instructs that local school boards must
adopt a process to resolve objections to school library books, FLA.
STAT. § 1006.28(2)(a)(2), and provides for an appeal from the local
school board’s decision to deny an objection to a book, id.
§ 1006.28(2)(a)(6). If a parent is unsatisfied with the local school
board’s decision to keep a book, he or she can request that the Florida Commissioner of Education appoint a special magistrate to recommend a decision to the Florida Board of Education, which can
vote on the special magistrate’s recommendation. Id. The substance of the appeal is about the process that the Board used to resolve the objection, that is, “to determine whether a district considered a parental objection under” the appropriate procedures.
FLA. ADMIN. CODE r. 6A-1.094126(4); see FLA. STAT. § 1006.28(2)(a).
To that end, the special magistrate must be “a member of The Florida Bar in good standing and who has at least 5 years’ experience in
administrative law.” FLA. STAT. § 1006.28(2)(a)(6).
The Escambia County School Board adopted two successive
policies about how to handle book objections. The first was Policy
4.06. Under that policy, if someone challenged a school library
book, the Superintendent could remove the book without further
review (upon making an evidentiary determination) or a District
Materials Review Committee could review the challenge. The
committee, composed of five or more community members,
would read the challenged book and consider the objections. The
complainant could proffer evidence that the book conflicts with
Florida law or “is not suited to student needs and their ability to
comprehend the material presented, or is inappropriate for the
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grade level and age group.” Policy 4.06 at 10(B)(3)(k), Dkt. 219-1 at
17. The committee would then vote by simple majority to keep,
restrict, or remove the book. If the complainant was unsatisfied
with the result of the vote, he or she could appeal to the School
Board.
The newest version of the School Board’s policy is Policy
2522. It amended Policy 4.06 by tying the objection process even
more closely with Florida law. For example, Policy 2522 requires
complainants to specify how a book conflicts with Florida Statute
Section 1006.28(2)(a)(2) and whether the book is pornographic,
prohibited under Section 847.012, describes sexual conduct, is unsuited to student needs, or is inappropriate for a certain age group.
It also explicitly repeats the state statutory requirement that the
School Board remove books if they violate Florida law on pornography or sexual material. Policy 2522 also requires the Board to
state its reasons for voting to remove a book.
The Board has also adopted two other relevant policies.
First, the Board adopted Policy 2520, which specified that books
that other school districts had removed would not be selected for
Escambia County school libraries without specific approval by the
School Board. Escambia Cnty. Pub. Schs., 2520 - Selection and Adoption of Instructional Materials, https://perma.cc/H7LF-KUB5.1 Second, the Board adopted a directive on June 17, 2025. That directive
1 Both parties have asked the Court to take judicial notice of publications on
the Board’s website, including Policy 2520 and a Board meeting agenda. We
agree that we can take judicial notice of such publications because they are USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 8 of 46
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instructed the Superintendent to “eliminate all pornographic or
age-inappropriate books from district media centers, as identified
on the Department of Education’s book removal list, without further review.” Sch. Bd. of Escambia County, Fla., Regular Meeting
Agenda, Item 43.B (June 17, 2025) [hereinafter Meeting Agenda
(June 17, 2025)], https://perma.cc/5EUW-3GJP.
B.
At issue in this appeal are three categories of book removals,
which the parties refer to as the 9 Original Removed Books, the 16
Superintendent-Removed Books, and the 101 Mass-Removed
Books.
The Board voted to remove the nine Original Removed
Books in 2023 under Policy 4.06. The process to remove these nine
books began when a teacher filed written challenges to them, explaining that the books included, among other things, “[e]xtreme
sexual content,” “LGBTQ agenda,” “[r]ace-baiting,” “[g]raphic
rape scenes,” and “language.” Dkt. 219 ¶ 108. A District Materials
Review Committee reviewed the teacher’s challenges and recommended against removing the books.
The teacher appealed to the School Board. The Board considered these appeals over the course of three meetings, entitling
each agenda item (with some typographical variations), “[t]o Consider a Citizen Challenge to [book title] by [author] Pursuant to
“from sources whose accuracy cannot reasonably be questioned.” FED. R.
EVID. 201(b)(2).
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Section 1006.28(2), Fla. Stat.” Sch. Bd. of Escambia County, Fla.,
Special Meeting Agenda, Items 2.B., 2.D., 2.F. (Feb. 20, 2023) [hereinafter Special Meeting Agenda (Feb. 20, 2023)],
https://perma.cc/WF2E-H6Z3; Sch. Bd. of Escambia County,
Fla., Special Meeting Agenda, Items 3.F., 3.G., 3.H., 3.I. (Mar. 20,
2023) [hereinafter Special Meeting Agenda (Mar. 20, 2023)],
https://perma.cc/WD4A-VSLU; Sch. Bd. of Escambia County,
Fla., Special Meeting Agenda, Items 3.D., 3.E. (Apr. 13, 2023) [hereinafter Special Meeting Agenda (Apr. 13, 2023)],
https://perma.cc/UPS9-XK6E. Before voting on each appeal, a
Board member made a motion; these motions were phrased in varying ways, including “approve the citizen’s appeal . . . (remove the
material),” Special Meeting Agenda (Feb. 20, 2023), supra, at Item
2.B., “[s]upport the committee’s recommendation,” id. at Item
2.D., and “[r]emove” a book, Special Meeting Agenda (Mar. 20,
2023), supra, at Item 3.H.; Special Meeting Agenda (Apr. 13, 2023),
supra, at Items 3.D., 3.E. Ultimately, the School Board overruled
the committee’s decisions, voting to remove the nine challenged
books from some or all school libraries.
Next came two additional categories of removals: the Superintendent- and Mass-Removed Books. Although the same teacher
challenged several books that were part of these removals, the Superintendent’s recommendation—not a citizen challenge—precipitated these removals.
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The Board voted to remove the sixteen Superintendent-Removed Books in 2025 under Policy 2522. The Superintendent submitted a recommendation to remove these books “[p]ursuant to
School Board Policy 2522,” explaining that the books were “classified as adult novels,” and “contain graphic descriptions and depictions of sexual conduct which are not appropriate for minors,” citing Florida Statute Section 1006.28(2)(d)(1). Meeting Agenda (June
17, 2025), supra, at Item 44.A & attach. The Board unanimously
approved this recommendation. Id. at Item 44.A.
The Board next voted to remove the 101 Mass-Removed
Books as an application of Policy 2522 and its June 17, 2025, directive. The Superintendent submitted to the Board a list of books
to which the Florida Department of Education had objected. Sch.
Bd. of Escambia Cnty., Fla., Regular Meeting Agenda, Item 44.A
(July 15, 2025) [hereinafter Meeting Agenda (July 15, 2025)],
https://perma.cc/F298-ML9N. The Board then moved to
“[a]pprove [the Superintendent’s] recommendation” to remove
books “in compliance with the School Board Directive approved
on June 17, 2025, to remove the books listed by the Florida Department of Education’s book removal list, without further review.” Id.
As with the Superintendent-Removed Books, the Board unanimously approved this recommendation. See id.
C.
A group of parents, authors, a free speech interest group
called PEN American Center, Inc., and Penguin Random House
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sued the Escambia School Board for violating the First Amendment. When they sought to depose members of the Board about
their book removal votes, the Board moved for a protective order
based on legislative privilege. The district court denied the motion,
explaining that legislative privilege did not apply because the book
removal votes were administrative acts. PEN Am. Ctr., Inc. v. Escambia Cnty. Sch. Bd., 787 F. Supp. 3d 1292, 1297–98 (N.D. Fla. 2024).
The district court elaborated that the Board’s book removal votes
were administrative because the votes were based on specific facts
about the content of books, involved the case-by-case application
of law and policy to specific books, and did not formulate general
standards that apply to all books. Id. at 1297.
Eventually, the plaintiffs served the Board members with
notices of depositions and subpoenas. The Board members individually moved to quash the subpoenas and for protective orders,
which the district court denied “for the reasons stated” in its previous order. The Board members filed two appeals, which we consolidated.
II.
We review a district court’s decision whether to quash a subpoena for abuse of discretion. In re Hubbard, 803 F.3d 1298, 1307
(11th Cir. 2015). It is an abuse of discretion for the district court to
make a clear error of judgment or to apply the wrong legal standard. Id.
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III.
Federal common law, which applies to evidentiary privileges in federal court, FED. R. EVID. 501, provides a legislative privilege to state and local legislators. Pernell v. Fla. Bd. of Governors of
State Univ., 84 F.4th 1339, 1343 (11th Cir. 2023). The legislative privilege protects its holder from being compelled to testify about his
or her legislative acts. Brewster, 408 U.S. at 525. Specifically, the
privilege “protects against inquiry into acts that occur in the regular
course of the legislative process and into the motivation for those
acts.” Id. But it does not protect against being compelled to give
evidence about administrative or other nonlegislative acts. Yeldell,
956 F.2d at 1062. Accordingly, the privilege “covers . . . actions in
the proposal, formulation, and passage of legislation.” In re Hubbard, 803 F.3d at 1308 (citation modified). The burden of proving
that an act is legislative rests on the person asserting the privilege.
Cf. In re Grand Jury Investigation, 842 F.2d 1223, 1225 (11th Cir. 1987)
(“The person invoking the privilege does bear the burden of proving its existence.”); Hafer v. Melo, 502 U.S. 21, 29 (1991) (“[O]fficials
seeking absolute immunity must show that such immunity is justified for the governmental function at issue . . . .”).
We have said that the touchstone of a legislative act is that
it involves “policy-making rather than mere administrative application of existing policies.” Crymes v. DeKalb County, 923 F.2d 1482,
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1485 (11th Cir. 1991). 2 Legislative acts include matters intimately
involved in the legislative process, such voting on legislation,
speech-making on the floor of a legislative assembly, preparing
committee reports, participating in committee investigations and
proceedings, Yeldell, 956 F.2d at 1062; see also Tenney v. Brandhove,
341 U.S. 367, 377–78 (1951) (committee investigation), introducing
a budget, Bogan v. Scott-Harris, 523 U.S. 44, 55–56 (1998), issuing an
executive veto, see Espanola Way Corp. v. Meyerson, 690 F.2d 827,
829 (11th Cir. 1982), and proposing, formulating, or passing legislation, In re Hubbard, 803 F.3d at 1308; see also Women’s Emergency
Network v. Bush, 323 F.3d 937, 950 (11th Cir. 2003) (signing a bill).
When confronted with mixed administrative and legislative bodies
like a school board, we have recognized equivalent acts as legislative in nature, such as amending a zoning code, Baytree of Inverrary
Realty Partners v. City of Lauderhill, 873 F.2d 1407, 1409 (11th Cir.
1989), and amending a county code to remove a truck route,
Crymes, 923 F.2d at 1485. We have explained an act is “more apt to
be administrative in nature” if “the facts utilized in making a decision are specific, rather than general, in nature.” Id.
2 Like the parties, we rely on precedents that address whether an act is legislative in nature, even if that precedent arose in the context of legislative immunity. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268
(1977) (citing legislative immunity precedent Tenney v. Brandhove, 341 U.S. 367
(1951) when discussing legislative privilege); In re Hubbard, 803 F.3d at 1307–
08 (relying on legislative immunity precedents to assess claim of legislative
privilege); EEOC v. Wash. Suburban Sanitary Comm’n, 631 F.3d 174, 180–81 (4th
Cir. 2011) (explaining that legislative privilege and immunity are “parallel concept[s]”).
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The plaintiffs concede that they intend to depose the Board
members about their motives for their book removal votes. And,
as no party disputes, local 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.
We agree with the plaintiffs that the Board members have
not met their burden. These book removal votes were not part of
the “regular course of the legislative process.” Brewster, 408 U.S. at
525. They did not involve the “proposal, formulation, and passage
of legislation.” In re Hubbard, 803 F.3d at 1308. And they did not
make new policies or amend existing policies. Bogan, 523 U.S. at 55.
The Board’s votes to adopt Policy 4.06, Policy 2522, Policy 2520,
and the June 17, 2025, directive were legislative. 3 But their votes to
remove specific books as an application of those policies were quite
literally the “mere administrative application of existing policies”
to specific facts. Crymes, 923 F.2d at 1485. Accordingly, they are not
protected from discovery by legislative privilege.
We start with the all-too-obvious fact that, although several
acts of legislative policymaking preceded the Board’s book removal
3 Although the plaintiffs do not explicitly concede that the decision to issue the
June 17, 2025, directive was a legislative act, their arguments presuppose that
it was. Specifically, they characterize the directive as a policy that the Superintendent and Board later applied to a specific set of facts. In any event, it is clear
under our precedent that the decision to adopt the June 17, 2025, directive was
a legislative act.
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votes, none of the book removal votes themselves are connected
to the “regular course of the legislative process.” Brewster, 408 U.S.
at 525. The state legislature proposed, formulated, and passed legislation requiring that local school boards remove certain books
from school libraries, FLA. STAT. § 1006.28(2)(a)(2)(b), and that they
create a process for evaluating book objections, id.
§ 1006.28(2)(a)(2). Then, the Escambia County School Board exercised its legislative power by incorporating the standards in state
law into such a policy and designing such a process. See Policy 4.06,
Dkt. 219-1 at 4–18; Policy 2522, Dkt. 219-1 at 59–63. The School
Board again exercised its legislative power by adopting the June 17,
2025, directive, which directed the Superintendent to perform the
administrative task of eliminating “all pornographic or age-inappropriate books from district media centers, as identified on the
Department of Education’s book removal list, without further review.” Meeting Agenda (June 17, 2025), supra, at Item 43.B.
But that is when the legislative policymaking ended. 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. Policy 4.06 at
10(B)(3)(d), (l), Dkt. 219-1 at 16–17; Policy 2522, Dkt. 219-1 at 61–
62. After the District Materials Review Committee makes a removal decision, 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. See
Policy 2522, Dkt. 219-1 at 62. Then, if the Board votes to remove a
book as failing under preexisting policies, it must state its reasons.
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Id. On the other hand, if the Board decides to keep a book, a parent
may appeal that decision to the Florida Board of Education, which
appoints a magistrate judge with experience in administrative law
to determine whether the local school board gave the complainant
sufficient process. FLA. ADMIN. CODE r. 6A-1.094126(4); see FLA.
STAT. § 1006.28(2)(a)(6). The legislative process is ordinarily not
constrained by administrative law. Cf. Bi-Metallic Inv. Co. v. State Bd.
of Equalization, 239 U.S. 441, 445 (1915) (citizens have no right to “a
chance to be heard” in the passage of legislation); Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 (1982) (explaining that a “legislature may elect not to confer a property interest” without implicating the Due Process Clause (quoting Vitek v. Jones, 445 U.S. 480, 490
n.6 (1980))).
The form of these book removal votes also suggests that the
votes were administrative in nature. When the Board voted to remove the nine Original Removed Books, it was expressly adjudicating a complaint and applying Florida law and Policy 4.06 to a
specific set of facts—each book. The agenda items for considering
these books were phrased (with some typographical variations),
“[t]o Consider a Citizen Challenge to [book title] by [author] Pursuant to Section 1006.28(2), Fla. Stat.” Special Meeting Agenda
(Feb. 20, 2023), supra, at Items 2.B., 2.D., 2.F.; Special Meeting
Agenda (Mar. 20, 2023), supra, at Items 3.F., 3.G., 3.H., 3.I.; Special
Meeting Agenda (Apr. 13, 2023), supra, at Items 3.D., 3.E. Some of
the motions phrased the vote as a vote to “approve the citizen’s
appeal . . . (remove the material),” Special Meeting Agenda (Feb.
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20, 2023), supra, at Item 2.B., or “[s]upport the committee’s recommendation,” id. at Item 2.D. By ruling on a complainant’s appeal of
the District Materials Review Committee’s decision, the Board was
merely applying the standards in Policy 4.06 (which incorporated
Florida law’s standards) to the specific record before it.
Further, when the Board voted to remove the Superintendent- and Mass-Removed books, it was applying its established policy to a set of facts. The agenda item for considering the Superintendent-Removed Books was phrased to “[a]pprove [the Superintendent’s] recommendation to remove the titles in the attached
list . . . .” Meeting Agenda (June 17, 2025), supra, at Item 44.A. And
the Superintendent was recommending removal of books “[p]ursuant to . . . policy 2522,” because the books were “classified as
adult novels,” and “contain graphic descriptions and depictions of
sexual conduct which are not appropriate for minors,” citing Florida Statute Section 1006.28(2)(d)(1). Id. at Item 44.A attach. Similarly, the agenda item for considering the Mass-Removed Books
was phrased: to “[a]pprove [the Superintendent’s] recommendation to remove the titles listed . . . in compliance with the School
Board Directive approved on June 17, 2025, to remove the books
listed by the Florida Department of Education’s book removal list,
without further review.” Meeting Agenda (July 15, 2025), supra, at
Item 44.A. The Board voted unanimously each time to approve the
Superintendent’s recommendation. See Meeting Agenda (June 17,
2025), supra, at Item 44.A. (Superintendent-Removed Books);
Meeting Agenda (July 15, 2025), supra, at Item 44.A. (Mass-ReUSCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 18 of 46
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moved Books). Because these book removal votes were “mere administrative application of existing policies,” Crymes, 923 F.2d at
1485, they were administrative, not legislative.
Let’s consider the substance of the votes as well. 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. See Policy 4.06 at 10(B)(3)(d), Dkt. 219-1 at 16;
Policy 2522, Dkt. 219-1 at 62. And the June 17, 2025, directive required that the Superintendent “eliminate” all books identified as
pornographic or age-inappropriate on the Department of Education’s book removal list “without further review.” Meeting Agenda
(June 17, 2025), supra, at Item 43.B. The Superintendent created a
list of those books and, rather than using the authority he possessed
under Policy 2522 and the June 17, 2025, directive to remove them
“without further review,” id., he asked for Board approval. See
Meeting Agenda (July 15, 2025), supra, at Item 44.A. 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.
In sum, nothing about the Board’s process resembles what a
legislator does, i.e., the “proposal, formulation, and passage of legislation.” In re Hubbard, 803 F.3d at 1308; cf. Bogan, 523 U.S. at 55
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(concluding that an ordinance was legislative where, “in substance,
[it] bore all the hallmarks of traditional legislation”). Instead, at
every step, this system calls for the decisionmaker (whether the Superintendent, the District Materials Review Committee, or the
School Board) to apply preexisting policies to a specific set of facts.
As Justice Gorsuch has observed in the separation-of-powers context, a legislature exercises policymaking discretion by “prescrib[ing] the rule,” and then, “the application of that rule depend[s] on executive fact-finding.” Gundy v. United States, 588 U.S.
128, 158 (2019) (Gorsuch, J., dissenting). Such administrative factfinding is not rote: it requires judgment and decision-making. But
the act of applying a preexisting policy to a specific set of facts, without more, is not a legislative act. Cf. Hughes v. Tarrant County, 948
F.2d 918, 920 (5th Cir. 1991) (“The courts have made a distinction
between establishing a policy, act, or law and enforcing or administering it.”).
What is more, none of the acts that we have previously recognized as legislative are comparable to what the Board did here.
The Board members try, but fail, to analogize this case to Ellis v.
Coffee County Board of Registrars, 981 F.2d 1185 (11th Cir. 1993).
There, a county commission investigated the eligibility of thousands of potential voters at the request of the board of registrars to
help draw district lines as part of a consent decree in a vote dilution
lawsuit. Id. at 1187. At the conclusion of that investigation, the
commission voted to recommend that the board of registrars purge
a number of voters (including the four individuals who sued) from
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20 Opinion of the Court 25-13298
the voting list. Id. at 1188. We concluded that the commission’s investigation and vote was in furtherance of the legislative function
of drawing district lines. Id. at 1190; see Moore v. Brown, 448 U.S.
1335, 1339 (1980) (“[T]he responsibility for drawing political
boundaries is generally committed to the legislative process.” (citation modified)). The Board members have not articulated how the
book removal votes were in furtherance of a similar legislative
function.
Our dissenting colleague says that the Board’s actions are
comparable to the zoning decision that we held a legislative act in
Baytree. Because Baytree involved a challenge to the denial of the
“plaintiff’s application to rezone its property,” 873 F.2d at 1409, the
dissent characterizes the opinion as holding that the application of
a preexisting legal framework can be legislative. Not so. Baytree involved a request to amend the zoning ordinance, not a request to
apply the zoning ordinance in effect. In other words, the question
in Baytree was whether a decision not to “amend a city zoning ordinance to allow Baytree to build a low-income residential complex” was legislative in nature. Id. at 1408. And we held it was; a
decision not to amend an ordinance, just like a decision to enact an
ordinance in the first place, is an unconstrained, policy-making decision. But the plaintiffs in this case do not seek to depose the Board
members about their decisions to create, repeal, or amend any policies in response to book-related complaints. Instead, the plaintiffs
seek to depose the Board members about why they determined
that specific books fit under the policies that the Board had already
adopted. Even in the zoning context, we have held that an act like
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25-13298 Opinion of the Court 21
this one—i.e. applying existing policies to specific facts—is not legislative in nature. See Crymes, 923 F.2d at 1486 (holding that board’s
“decision to uphold the denial of the development permit” was not
legislative).
Returning to the arguments of the parties, the Board members also say that the act of voting—no matter what the vote is
on—suggests a legislative act. But, under our precedents, the key
inquiry is what the vote was about. The Board members selectively
quote from DeSisto College, Inc. v. Line that “voting, debate and reacting to public opinion are manifestly in furtherance of legislative
duties.” 888 F.2d 755, 765 (11th Cir. 1989). But the point of DeSisto
is that these actions were “in furtherance of [the legislators’] duties”
in that case, id. (alteration in original) (quoting Hernandez v. City of
Lafayette, 643 F.2d 1188, 1193 (5th Cir. Unit A June 1981)), not that
these actions are uniquely legislative in nature. In fact, we have often characterized actions by local governments to be administrative even when they involved voting. See Yeldell, 956 F.2d at 1062
(denial of licenses) (citing Polenz v. Parrott, 694 F. Supp. 599 (E.D.
Wis. 1988)); Smith v. Lomax, 45 F.3d 402, 405 (11th Cir. 1995) (termination of employment); Crymes, 923 F.2d at 1485 (zoning law enforcement). In Crymes, as here, one party argued that “the Commissioners’ actions must have been legislative in nature because all
of the challenged actions involved defendants’ votes at official
meetings.” Crymes, 923 F.2d at 1485. But we explained that voting
“alone does not necessarily determine that [a person] was acting in
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22 Opinion of the Court 25-13298
a legislative capacity.” Id. (quoting Cinevision Corp. v. City of Burbank, 745 F.2d 560, 580 (9th Cir. 1984), cert. denied, 471 U.S. 1054
(1985)).
Finally, the Board members argue that the Board’s votes
were legislative because the Board had discretion about how to
vote on these books. But they misconstrue the legal standard. Of
course, the Board members exercised some discretion in how they
applied their policies to these specific books. But these votes were
not an exercise in policymaking discretion, which is what we and the
Supreme Court have always emphasized as the key component of
the legislative act. Bogan, 523 U.S. at 55 (holding that to be legislative, an act must reflect a “discretionary, policymaking” character);
see Crymes, 923 F.2d at 1485 (citing Minton v. St. Bernard Par. Sch.
Bd., 803 F.2d 129, 135 (5th Cir. 1986)). Non-legislative officers often
must exercise discretion, which is why executive officers are afforded qualified immunity for certain discretionary acts. See Sammons v. Taylor, 967 F.2d 1533, 1539 (11th Cir. 1992). And indeed,
many actions that we have characterized as administrative in the
context of legislative privilege have involved some discretion. See,
e.g., Yeldell, 956 F.2d at 1062 (discussing the administration of penal
facilities and the denial of licenses as administrative actions); Lomax, 45 F.3d at 405 (holding that a vote about who to hire was administrative); Crymes, 923 F.2d at 1485 (explaining that zoning enforcement is not legislative). 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.
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25-13298 Opinion of the Court 23
For his part, our dissenting colleague accuses us of “ignoring” various things, such as judicial opinions and treatises no party
has cited. Because our own case law governs this dispute, our dissenting colleague is correct that we see no need to discuss, for example, an obviously distinguishable 1880 decision from California
on which no party relies. Our dissenting colleague’s independent
research may have been comprehensive. But we respectfully suggest that his resort to unraised arguments about far-flung authorities merely underscores that this Court’s precedents (which we
have obviously addressed in depth) do not support his position.
In short, the Board members have not met their burden to
establish that their actions were legislative in nature. They cannot
be questioned about why they adopted Policy 4.06, Policy 2522,
Policy 2520, or the June 17, 2025, directive because these policymaking decisions were legislative acts. But, notwithstanding their
invocation of legislative privilege, they can be deposed about their
determination that specific books should be removed as an application of existing policies because these determinations were administrative acts.
Our decision today is a narrow one. We do not address
whether other privileges or discovery rules may warrant quashing
these subpoenas, curtailing the depositions, or the like. Nor do we
suggest that every decision to stock or remove a book is administrative in nature. Legislative privilege serves important interests in
preserving legislative independence and protecting legislators from
compelled inquiry into legitimate legislative acts. Those interests
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24 Opinion of the Court 25-13298
warrant robust protection. Determining whether and to what extent the privilege applies, however, 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.
IV.
The district court is AFFIRMED.
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25-13298 WILLIAM PRYOR, C.J., Dissenting 1
WILLIAM PRYOR, Chief Judge, Dissenting:
Local officials enjoy a common-law privilege that protects
them from being compelled to testify about their legislative acts.
At common law, their acts were legislative if they were discretionary instead of ministerial and of a public instead of a private character. Because the members of the Escambia County School Board
exercise discretion over a matter of public policy when voting to
remove books from school libraries, the majority wrongly strips
them of their privilege to avoid testifying about those votes. In doing so, it ignores the common law that the Supreme Court has explained defines the privilege. It misreads our precedents too. We
should instead reverse the district court. I respectfully dissent.
I. DISCUSSION
In Bogan v. Scott-Harris, the Supreme Court held that local
officials enjoy a common-law immunity from suit for discretionary
acts of a public character. See 523 U.S. 44, 49–50 (1998); see also FED.
R. EVID. 501 (“The common law—as interpreted by United States
courts in the light of reason and experience—governs a claim of
privilege . . . .”). Legislative privilege covers the same legislative
acts to which legislative immunity applies. See In re Hubbard, 803
F.3d 1298, 1307–08 (11th Cir. 2015) (considering interchangeably
cases concerning the scope of legislative immunity and legislative
privilege). To determine whether a local official’s acts are protected
by that immunity and privilege, we consider whether the acts are
legislative both in substance and in form. See Bogan, 523 U.S. at 55.
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2 WILLIAM PRYOR, C.J., Dissenting 25-13298
An act is legislative in substance if it “reflect[s] a discretionary, policymaking decision.” Id. And an act is legislative in form if it is
“quintessentially legislative,” like “voting for an ordinance,” “introduc[ing] a budget[,] and signing into law an ordinance.” Bogan, 523
U.S. at 55; cf. Ellis v. Coffee Cnty. Bd. of Registrars, 981 F.2d 1185,
1191–92 (11th Cir. 1993) (defining legislative acts as those that are
“an integral part of the deliberative and communicative processes
regarding the consideration and action of a legislative body for matters statutorily placed within its jurisdiction” (citation modified)
(emphasis added)).
Legislative acts often are generally applicable. See Brown v.
Crawford County, 960 F.2d 1002, 1011 (11th Cir. 1992); Bryant v.
Jones, 575 F.3d 1281, 1306 (11th Cir. 2009). And we sometimes describe nonlegislative acts as “administrative” because they involve
the “mere administrative application of existing policies.” Crymes v.
DeKalb County, 923 F.2d 1482, 1485 (11th Cir. 1991). An act is “more
likely” to be “administrative” if “the facts utilized in making a decision are specific, rather than general,” and “the decision impacts
specific individuals, rather than the general population.” Id. But
that shorthand terminology can carry connotations that make it
imprecise if we fail to appreciate its common-law background.
Because the majority ignores this history, it fails to appreciate the nature of the privilege that the Board members enjoy. It
declares that a local school board’s subjective, discretion-laden, and
public-policy determinations about what books do not belong in
school libraries are administrative, not legislative. In its view, the
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25-13298 WILLIAM PRYOR, C.J., Dissenting 3
Board was not engaged in “policymaking” but instead applying a
concededly indeterminate policy to decide each book’s appropriateness for the school libraries. This reasoning is foreign to the
common law and the precedents that govern us.
At common law, local officials’ acts were legislative when
they were both discretionary—instead of ministerial—and of a
public character—instead of a private one. And our precedents reflect this understanding. Both the common law and our precedents
make the Board members’ votes legislative in substance and in
form.
A. At Common Law, Acts Were Legislative if They Were Discretionary Acts of a Public Character.
Bogan recognized that when Congress permitted civil-rights
actions against local governments and officials, 42 U.S.C. § 1983, it
never intended to supplant the common-law immunities of the officials. 523 U.S. at 49‒52. And the Court made clear that we must
look to the common law that governed local governments and their
officials when section 1983 was enacted. See id. Although it cites
snippets from Bogan, the majority ignores this framework. See, e.g.,
Maj. Op. at 19, 22. But under this background understanding about
local governments, “municipal corporations . . . possess . . . a double character: the one governmental, legislative, or public; the
other, in a sense, proprietary or private.” 1 JOHN F. DILLON,
COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS § 66, at
88 (Boston, Little, Brown, & Co. 3d ed. 1881) (emphases omitted)
[hereinafter DILLON 3D].
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4 WILLIAM PRYOR, C.J., Dissenting 25-13298
At common law, “there were two doctrines that afforded
municipal corporations some measure of protection from tort liability. The first sought to distinguish between a municipality’s ‘governmental’ and ‘proprietary’ functions . . . . The second doctrine
immunized a municipality for its ‘discretionary’ or ‘legislative’ activities, but not for those which were ‘ministerial’ in nature.” Owen
v. City of Independence, 445 U.S. 622, 644 (1980). This appeal concerns only the second doctrine, discretionary-act immunity, which
is the common-law basis for the immunity of local officials for their
legislative acts and their corresponding privilege. See Bogan, 523 U.S.
at 49–51. The majority ignores this distinction.
Discretionary-act immunity covered only “the exercise of
discretionary powers of a public nature.” 28 WILLIAM MACK,
CYCLOPEDIA OF LAW AND PROCEDURE 1262 (1908); see also FLOYD R.
MECHEM, A TREATISE ON THE LAW OF PUBLIC OFFICES AND OFFICERS
§§ 672–73, at 448 (Chicago, Callaghan & Co. 1890) (“[W]here the
duty is one owing solely to the public, no liability for its non-performance is incurred to the individual however much he may be
injured,” but not if an “individual has in it a distinctive and direct
interest and the legal right to require its performance”); Wilson v.
Mayor of New York, 1 Denio 595, 600 (N.Y. 1845) (“[N]or is such . . .
officer answerable in any form of action, for the manner in which
any duty, of a . . . discretionary nature, shall have been performed.”); cf. Ex parte Virginia, 100 U.S. 339, 348 (1880) (holding that
an official was not immune for acts that “might as well have been
committed to a private person as to one holding the office”). When
a municipality “makes contracts, employs men, owns property, and
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25-13298 WILLIAM PRYOR, C.J., Dissenting 5
transacts business in the same way as individuals and private corporations,” for example, it acts “[i]n its private capacity.” People v.
City of Chicago, 100 N.E. 194, 196 (Ill. 1912).
Discretionary-act immunity provided immunity not only for
the municipal body, 2 JOHN F. DILLON, THE LAW OF MUNICIPAL
CORPORATIONS § 753, at 862 (New York, James Cockcroft & Co. 2d
ed. 1873), but also for its officials, see 1 DILLON 3D, supra, § 313, at
326–27. “Whenever the officers of a municipal corporation [we]re
vested with legislative powers,” common-law courts found them
“clothed with all the immunities of government, and . . . exempt
from all liability for their mistaken use.” Jones v. Loving, 55 Miss. 109,
111 (1877). A local official’s exercise of discretion was the hallmark
of an act for which he was immune—that is, a legislative act.
Courts even referred to local officials’ discretionary acts and their
legislative acts interchangeably. See Weightman v. Corporation of
Washington, 66 U.S. (1 Black) 39, 49 (1862) (“Municipal corporations
undoubtedly are invested with certain powers, which, from their
nature, are discretionary . . . . Such powers are generally regarded
as discretionary, because, in their nature, they are legislative . . . .”).
Indeed, local legislators enjoyed this immunity so that it
would protect their discretion. As one treatise put it, “[b]ecause legislative functions are discretionary, and especially because the lawmaking body should be independent of those who are to expound
and enforce its enactments, no member of such body can be called
to account . . . for acts done in or in connection with the exercise
of his legislative powers.” JOEL PRENTISS BISHOP, COMMENTARIES
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6 WILLIAM PRYOR, C.J., Dissenting 25-13298
ON THE NON-CONTRACT LAW § 777, at 360–61 (Chicago, T. H. Flood
& Co. 1889) (footnote omitted). Another treatise added that “if
every dissatisfied person could compel [officials] to vindicate the
wisdom of their enactments in an action for damages,” “they
would certainly perform their duties” “to exercise their judgment
and discretion as to what the people need and what will best supply
the requirements” “in a timid and time-serving manner.” MECHEM,
supra, § 644, at 431. As Thomas Cooley explained, “it is not consistent with” local officials’ “full discretionary authority in all matters of legislation” to “be called to account at the suit of individuals
for their acts and neglects” related to their legislative duties.
THOMAS M. COOLEY, A TREATISE ON THE LAW OF TORTS 376 (Chicago, Callaghan & Co. 1879). After all, “[d]iscretionary power is, in
its nature, independent,” and “to make those who wield it liable to
be called to account by some other authority is to take away discretion and destroy independence.” Id.
Local legislators enjoyed this immunity even though “the
legislative . . . duties that devolve upon municipal corporations are
not strictly those of the legislator.” WATERMAN L. WILLIAMS, THE
LIABILITY OF MUNICIPAL CORPORATIONS FOR TORT § 6, at 16 (1901).
That is, they are not identical to the powers and duties that state or
federal legislators wield and perform. See id. (explaining that “[t]he
immunity of municipal corporations” for “exercise[s] of their discretionary powers is based upon that public policy which protects
the legislator” because those powers “so far partake of the nature
of such duties that the same reasons which make it desirable to
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25-13298 WILLIAM PRYOR, C.J., Dissenting 7
protect the legislator . . . apply with equal force to the case of municipal authorities”); see also COOLEY, supra, at 376 (explaining that
legislative immunity applies not only to “legislative bodies proper,”
but “also to inferior legislative bodies, such as boards of supervisors, county commissioners, city councils, and the like”). In contrast, the common law supplied no immunity for acts done under
“some particular duty of a ministerial character . . . imposed upon
a legislative body, in the performance of which its members severally are required to act.” COOLEY, supra, at 377. For ministerial acts,
where “no liberty of action [is] allowed, and no discretion[,] . . . a
private action” could lie. Id.; accord MECHEM, supra, § 647, at 432
(“But the legislative officer . . . may be called upon to act ministerially, as when he is required to do some act in a prescribed manner
irrespective of his own judgment as to the propriety or desirability
of its being done, and in such a case he will be liable . . . .”);
MONTGOMERY H. THROOP, A TREATISE ON THE LAW RELATING TO
PUBLIC OFFICERS AND SURETIES IN OFFICIAL BONDS § 709, at 671
(Chicago, T. H. Flood & Co. 1892) (“[T]his immunity is confined
strictly to the exercise of legislative functions. It often happens that
bodies possessing powers of local legislation[] also exercise ministerial functions. With respect to the latter, the members are liable
in the same manner as other officers, performing ministerial acts,
as judicial officers are under like circumstances.”).
The distinction between discretionary and ministerial public
acts resolved the immunity question throughout the nineteenth
century. Compare Baker v. State, 27 Ind. 485, 489 (1867) (“The appellants, as members of the common council, were in the exercise of
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8 WILLIAM PRYOR, C.J., Dissenting 25-13298
a discretion given them by law. In such case, there is no individual
liability . . . .”), and Amperse v. Winslow, 42 N.W. 823, 827 (Mich.
1889) (“[N]o action will lie against a” member of a city council for
his acts that were “to be exercised according to his judgment or
discretion.” (citation modified)), with Amy v. Supervisors, 78 U.S (11
Wall.) 136, 136–38 (1871) (where a writ of mandamus directed
county supervisors to levy a tax, they could be liable for failing to
do so because the writ of mandamus made the act ministerial),
Caswell v. Allen, 7 Johns. 63, 67–68 (N.Y. 1810) (county supervisors
could be liable for an act that was “mandatory” and for which “[n]o
discretion appear[ed] to [have] be[en] given to the supervisors”),
and Cnty. Comm’rs of Anne Arundel Cnty. v. Duckett, 20 Md. 468, 477–
78 (1864) (county commissioners’ liability turned on whether they
“were invested with a legislative discretion, which they had the liberty of exercising as their sense of duty to their constituents dictated,” or instead held a “minister[i]al” power). Despite our precedents’ use of shorthand terms like “administrative,” which today
can carry different connotations, the common-law distinction between discretionary and ministerial public acts marks the boundary
between legislative and nonlegislative acts in this context. The majority offers nothing from the common law suggesting otherwise—because it cannot—so it instead ignores the common law.
B. Our Precedents Confirm that Discretionary Acts of a Public
Character Are Legislative.
When modern precedents differentiate between legislative
and “administrative” acts, they describe the line that the common
law drew between discretionary and ministerial public acts. That
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25-13298 WILLIAM PRYOR, C.J., Dissenting 9
terminology has confused the majority. Yet, despite our modern
nomenclature, our precedents correctly distinguish between legislative and nonlegislative acts as the common law did.
When federal courts began referring to nonlegislative acts as
“administrative” decades ago, they used the term “administrative”
as a synonym for ministerial. See, e.g., Crymes, 923 F.2d at 1485; Minton v. St. Bernard Par. Sch. Bd., 803 F.2d 129, 135 (5th Cir. 1986). At
that time, “[a]dministrative acts” meant “[t]hose acts which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body.” Administrative Acts, BLACK’S
LAW DICTIONARY (6th ed. 1990) [hereinafter BLACK’S 6th]. The term
“[a]dministrative” described action that has an “executive or ministerial” “character.” Administrative, BLACK’S 6th, supra. An act that is
“ministerial,” meanwhile, was “[t]hat which involves obedience to
instructions, but demands no special discretion, judgment, or
skill.” Ministerial Act, BLACK’S 6th, supra; accord Ministerial Duty,
BLACK’S 6th, supra; Ministerial Function, BLACK’S 6th, supra. The majority missteps by giving predominance to the connotations of “administrative” today. See Administrative, BLACK’S LAW DICTIONARY
(12th ed. 2024) [hereinafter BLACK’S 12th] (“Of, relating to, or involving the work of managing a company or organization; executive.”); Act, BLACK’S 12th, supra (defining “administrative act” as
“[a]n act made in a management capacity” without reference to discretionary or ministerial acts). But under our precedents, the terms
“administrative” and “ministerial” have been nearly interchangeable. Cf. McKinney v. Pate, 20 F.3d 1550, 1557 n.9 (11th Cir. 1994) (en
banc) (describing executive acts as those “typically aris[ing] from
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10 WILLIAM PRYOR, C.J., Dissenting 25-13298
the ministerial or administrative activities of members of the executive branch”), abrogation on other grounds recognized by Littlejohn v.
Sch. Bd. of Leon Cnty., 132 F.4th 1232, 1239–40 (11th Cir. 2025). So,
when our precedents differentiated between “administrative” and
legislative acts, we respected the common-law distinction between
discretionary and ministerial acts. Yet, the majority declines to account for what our own precedents meant when they were written.
Take Crymes, for instance. 923 F.2d 1482. There, we stated
that amending a county code was legislative but held that a county
board’s decision to approve or deny a development permit was “administrative” because it was “the application of policy to a specific
party.” Id. at 1484–86. The majority takes this language to mean
that any fact-based application of a local policy to a concrete scenario is “administrative,” not legislative. But the majority ignores
that the development-permit decision in Crymes was ministerial,
not discretionary. Under local law, the Development Director could
approve a development permit only where the “truck traffic routes
and entrances to” the property were “reviewed and approved by
the director of public works.” Crymes Enters., Inc. v. Maloof, 389
S.E.2d 229, 230 (Ga. 1990) (citation modified). Because the director
of public works denied approval, the Development Director denied
the permit, and the county Board had to affirm. Id.
We then considered whether the defendants “who [we]re
members of the [county] Board of Commissioners [had] absolute
legislative immunity” for affirming the Development Director’s deUSCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 35 of 46
25-13298 WILLIAM PRYOR, C.J., Dissenting 11
nial of the permit. 923 F.2d at 1485. We described “the Board’s decision to uphold the denial of the development permit” as being
“on the ground that surrounding roads were in need of improvement.” Id. And that decision was “the application of policy to a specific party” in the sense that county policy required the Board to affirm the denial. See id. Crymes correctly held that the Board’s members could be individually liable for that ministerial decision, consistent with the common law. See also Minton, 803 F.2d at 135 (using
the word “administrative” to distinguish nonlegislative acts from
those that “involve the degree of discretion and public-policy-making traditionally associated with legislative functions”).
The majority’s confusion becomes more apparent when it
compares the Board’s decision to a category of discretionary acts
that we have described as nonlegislative: personnel decisions. See
Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1062 (11th Cir. 1992)
(holding that “decisions to hire, fire, and demote certain” hospital
employees were not legislative); Smith v. Lomax, 45 F.3d 402, 406
(11th Cir. 1995) (holding that vote of a county board “not to reappoint” its clerk was not legislative). To be sure, personnel decisions
are discretionary, not “ministerial,” because they “involv[e] the exercise of judgment.” Keim v. United States, 177 U.S. 290, 293 (1900).
But the majority fails to appreciate that personnel decisions are
nonlegislative despite their discretionary nature because they are
not of public character. The common law considered a municipal
corporation’s “hiring [of ] laborers” to be like the “acts [of ] a private
individual.” Ryan v. City of New York, 69 N.E. 599, 605 (1904)
(O’Brien, J., concurring in the judgment); see also City of Chicago,
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12 WILLIAM PRYOR, C.J., Dissenting 25-13298
100 N.E. at 196 (municipality acts “[i]n its private capacity” in “employ[ing] men”); Trump v. Cook, 146 S. Ct. 2234, 2247–48 (2026) (explaining that, at common law, removal decisions did not necessarily
escape judicial review). So, for personnel decisions, a municipality
“stands upon the same footing with a private corporation.” See 28
MACK, supra, at 1258. Its decisions “might as well” be “committed
to a private person as to one holding [] office.” Virginia, 100 U.S. at
348. And an individual injured by a personnel decision “has in it a
distinctive and direct interest,” so local officials’ duties respecting
such decisions are not “ow[ed] solely to the public,” and discretionary-act immunity does not apply. See MECHEM, supra, §§ 672–73, at
448. Like Crymes, our precedents holding that personnel decisions
are nonlegislative adhere to the common-law understanding of legislative and nonlegislative acts. See also Pernell v. Fla. Bd. of Governors
of State Univ., 84 F.4th 1339, 1343 (11th Cir. 2023) (describing legislative privilege as “protect[ing]” against “deterrents to the uninhibited discharge of . . . legislative duty for the purpose of the public
good” (citation modified) (emphasis added)).
Unlike the majority and the district court, Magistrate Judge
Bolitho—citing Judge Winsor’s resolution of a similar issue in an
earlier district-court case—got our precedents right. The majority
ignores their disagreement. The magistrate judge began by acknowledging the common-law roots of legislative privilege. He
stated the primacy of “the nature of the act,” which turned on
whether it “involve[d] line-drawing”—that is, discretion—“on matters of general concern”—that is, of a public character. Both he and
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25-13298 WILLIAM PRYOR, C.J., Dissenting 13
Judge Winsor recognized that, properly understood, our precedents are rooted in this common-law understanding.
C. Our Precedents and the Common Law Dictate that the Board
Members’ Votes Were Legislative Acts.
Both controlling precedents and the common law confirm
that the Board members’ votes were legislative in substance because they were discretionary acts of a public nature. The members’ votes were also legislative in form. And the majority opinion
fails to respect what traditionally has distinguished a legislative act
from a ministerial or administrative one.
The Board members’ decisions were of a public character.
Their votes set a prospective and generally applicable Board policy.
They eliminated access to the removed books for at least five years.
Each vote was specific to a book or set of books but generally applicable because the removed books were inaccessible for all students in the district. Crymes, 923 F.2d at 1485 (suggesting that the
removal of a single road from a list of truck routes was legislative).
And unlike personnel decisions that mirror private entities’ decisions, see City of Chicago, 100 N.E. at 196, the Board members’ votes
on what books belong in school libraries were public in character:
No entity but a sovereign may decide what books should be available to all children attending public schools. Under state law, that
public duty belongs to the local school board. FLA. STAT.
§ 1006.28(2). Moreover, no private entity or individual has any “distinctive and direct interest” over those decisions. See MECHEM, supra, §§ 672–73, at 448. Because the majority ignores the common
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law, the majority elides the distinction between acts of a public nature and those of a private one.
The votes were also discretionary. Begin with the same state
law that gives local school boards the “duty and responsibility to
select and provide adequate instructional materials for all students.” FLA. STAT. § 1006.28(2). That authority extends to the curation of “the content of all instructional materials and any other materials . . . made available in a school or classroom library.” Id.
§ 1006.28(2)(a)(1). When resolving parental objections to library
books, the school board considers whether the challenged material
“[i]s pornographic,” “[d]epicts or describes sexual conduct,” “[i]s
not suited to student needs and their ability to comprehend the material presented,” or “[i]s inappropriate for the grade level and age
group for which the material is used.” Id. § 1006.28(2)(a)(2)(b)(I)–
(IV). If a “school board finds that any material . . . contains prohibited content,” “the school district shall discontinue use of the material.” Id. § 1006.28(2)(a)(2) (flush language).
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—facts the majority fails to mention. Cf. ACLU of Fla., Inc. v.
Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1225 (11th Cir. 2009)
(“[E]ducational suitability questions . . . are the perfect example of
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25-13298 WILLIAM PRYOR, C.J., Dissenting 15
a core educational policy matter within the exclusive province of
local school boards.”). Those disagreements reveal the discretionary and legislative nature of the Board members’ decisions.
The common law has long confirmed the legislative character of decisions like these. See Donahoe v. Richards, 38 Me. 379, 395
(1854) (“[T]he books prescribed by the superintending school committee are to be regarded as if established and prescribed by the Act
of the Legislature. . . . The manner of ” the “exercise” of that
power “to prescribe . . . what books shall be used” in the public
schools “must depend upon the judgment, discretion[,] and intelligence of the different committees” “of each town,” which “depends upon the views and opinions of those upon whom the law
devolves this duty.”); Roth v. Marshall, 27 A. 945, 945 (Pa. 1893)
(comparing “the exercise of official discretion of a board of school
directors” over “the location of a district schoolhouse” to their discretion over “the selection of teachers and text-books”); Clark v. Bd.
of Dirs., 24 Iowa 266, 275 (1868) (“That the board of directors is
clothed with certain discretionary powers as to the establishment,
maintenance[,] and management of schools within its district cannot be denied.”); FINLEY BURKE, A TREATISE ON THE LAW OF PUBLIC
SCHOOLS 104–05 (New York, A. S. Barnes & Co. 1880) (Whether the
Bible will be read in public schools “is usually left to the discretion
of the board of directors, as are other rules prescribing studies, etc.
Where the law leaves such a discretion with the board, as it generally does, the courts have refused to restrain, coerce, or interfere
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16 WILLIAM PRYOR, C.J., Dissenting 25-13298
with such discretion.”). Because the common law refutes the majority’s reasoning even as applied to the school context, the majority declines to engage with it.
Turning to whether the Board members’ votes were legislative in form, the majority maintains that they were not because the
Board members applied its policy to specific facts, because the
Board sometimes reviewed the recommendations of the superintendent, and because some individuals could appeal some book-removal decisions on procedural grounds. But both our precedents
and the common law foreclose this reasoning.
The Board’s decisions were legislative in form because our
precedents understand legislative acts to include not only legislative enactments, but also legislative decisions, which include any
“actions taken in furtherance of legislative duties.” DeSisto Coll., Inc.
v. Line, 888 F.2d 755, 759 (11th Cir. 1989); see also id. at 765 (collecting cases). For instance, we have held that even fact-intensive investigations are legislative if in furtherance of a local body’s public
duty. See Ellis, 981 F.2d at 1191 (collecting cases and holding that
county commission’s investigation into family’s residence for purposes of voter eligibility was legislative); Cole v. Gray, 638 F.2d 804,
808, 811 (5th Cir. 1981) (investigation targeting a single individual
was legislative); see also Bogan, 523 U.S. at 55 (holding that the “introduction of a budget and signing into law an ordinance” are legislative in form). And here, “[t]he district school board has the constitutional duty and responsibility to select . . . the content of all
instructional materials and any other materials . . . made available
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25-13298 WILLIAM PRYOR, C.J., Dissenting 17
in a school or classroom library.” FLA. STAT. § 1006.28(2)(a)(1).
That is, the Board members’ votes were legislative in form because
they parallel other “quintessentially legislative” acts, see Bogan, 523
U.S. at 55, and were “an integral part of the deliberative and communicative processes regarding the consideration and action of a
legislative body for matters statutorily placed within its jurisdiction,” see Ellis, 981 F.2d at 1192 (citation modified).
Baytree of Inverrary Realty Partners v. City of Lauderhill is instructive. 873 F.2d 1407 (11th Cir. 1989). There, the plaintiff sued
the City of Lauderhill and Broward County and associated individuals. See id. at 1407–08. The majority describes Baytree as holding
that “amending a zoning code” is legislative. Maj. Op. at 13. But
“[t]he complaint challenge[d] [individual] defendants’ conduct in
denying plaintiff’s application to rezone its property.” Baytree, 873
F.2d at 1409 (emphasis added). That is, in Baytree, we held that a
local government’s exercise of discretion about a single application
turning on specific facts was legislative, not administrative. Under
the majority’s reasoning—where a decision about a single book
must be nonlegislative—Baytree would come out differently. So
Baytree shows why the majority is wrong. The majority’s only response is that the application in Baytree was to amend the zoning
ordinance. Maj. Op. at 20–21. But that response highlights the similarity to this case, where the Board considered a specific parental
objection before setting a prospective policy for libraries.
Baytree also illustrates that the majority misunderstands the
relevance of a decision by a local government being intertwined
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18 WILLIAM PRYOR, C.J., Dissenting 25-13298
with administrative procedures for review. We stated that the relevant application first went to “[t]he City Council,” which made a
“recommend[ation]” to “the County,” which then made the decision. Id. at 1408. We held that all the individual defendants—that is,
those associated with both the City who made the recommendation
and the County who accepted it—were legislatively immune because “zoning and land use decision-making . . . is normally characterized as a legislative function.” Id. at 1409. Administrative review was irrelevant.
The majority’s reasoning cannot be squared with Baytree. If
the Board members’ decisions are not legislative in form because
their decisions can be reviewed on appeal, then the officials in Baytree could not have been legislatively immune. And, if the Board
members’ decisions are not legislative in form because they reviewed the recommendations of the superintendent, then the
County officials in Baytree could not have been legislatively immune. Moreover, in Crymes, we held that a county board’s decision
“uphold[ing] the decision by the [county] Development Department denying Crymes’[s] application”—which had already been
upheld by a county Board of Appeals—was administrative without
ever suggesting that our decision depended on the decision’s interplay with administrative procedures. See 923 F.2d at 1484. Under
our precedents, an official’s decision to accept or reject another’s
recommendation does not render an act nonlegislative in form.
Common-law courts held similarly. Cf., e.g., Denny v. Des Moines
County, 121 N.W. 1066, 1068–70 (Iowa 1909) (holding that a statute
“authoriz[ing] an appeal . . . from the action of the board in its
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25-13298 WILLIAM PRYOR, C.J., Dissenting 19
judgment and discretion” violated the separation of powers because “no appeals to the courts can be given with reference to the
exercise of a power by a legislative . . . tribunal which is in its nature
discretionary”); see also WILLIAMS, supra, § 6, at 16 (explaining that
local legislators act legislatively even though their “duties” are “not
strictly those of the legislator”). The majority fails to account for
the review processes present in both Baytree and Crymes.
It also defies common sense to say that the removal of a library book, when prompted by a parental objection, is administrative even though the Board members could have raised the same
objection about the same book on their own initiative—an act the
majority would surely recognize was legislative. Compare FLA. STAT.
§ 1006.28(2)(a)(4) (contemplating “[m]eetings of committees convened for the purpose of . . . eliminating[] or selecting instructional
materials”), with id. § 1006.28(2)(a)(5) (separate subsection about
“committees convened for the purpose of resolving an objection
by a parent or resident to specific materials”). Under the majority’s
view, the Board members’ votes would be legislative only if they
resulted from their own initiative instead of in response to an objection. But the “nature of ” a legislative act does not depend on
who initiated it. See Bogan, 523 U.S. at 54 (explaining that “[a]bsolute
legislative immunity attached to all actions taken in the sphere of
legitimate legislative activity” and does not turn “on the motive or
intent of the official performing it,” but instead on “the nature of
the act”). Yet, the majority does not disavow that implication of its
reasoning.
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20 WILLIAM PRYOR, C.J., Dissenting 25-13298
A common-law precedent proves these points. In People ex
rel. Cochran v. Board of Education of Oakland, the Supreme Court of
California reviewed “the Board of Education of the City of Oakland[’s] approv[al] [of ] the report of a committee” recommending
that the City’s public schools change to a new series of textbooks.
54 Cal. 375, 375–76 (1880). The state supreme court did so to determine whether the Board was “exercis[ing] judicial functions” such
that “a writ of certiorari will lie to review the action” or instead
whether the writ was unavailable because the Board’s decision was
“legislative in its character.” Id. at 376 (emphasis omitted).
The Supreme Court of California ruled that the board’s approval of the committee recommendation of new textbooks was
legislative:
The Board acted upon the proposition before it as one
of policy or expediency, aiming to adopt that which,
in its judgment, would be best for the constituency
which it represented. Its action was then political or
legislative, and was in no proper sense judicial in its
character. It is conceded that the Board exercised its
judgment in the action which it took, but this it was
called to do in the exercise of its legislative functions.
Id. at 377. The state supreme court explained that “[t]here was no
party before [the board] upon whose rights it was passing with reference to any transaction whatever” because no party had “a right
to control the sale of ” any particular book to the school. Id. But it
also reasoned that if an interested party was “present at all, the
party was there as any other person had a right to be, urging the
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25-13298 WILLIAM PRYOR, C.J., Dissenting 21
policy of adopting the one series . . . and the impolicy of adopting
the other.” Id.
Cochran confirms that, at common law, this kind of decision
was legislative both in form and in substance. It held that the local
school board’s textbook decision was of a public instead of a private character because it involved deciding the best policy for its
constituency. The school board acted legislatively even though it
was considering a recommendation. It did so by examining the
merits of one series of textbooks over another—applying its discretion to particular facts. And it acted legislatively because it exercised
discretion for a decision of a public character, even if its procedures
looked adjudicatory with interested parties making their best case
for using their respective books. So too here.
The majority dismisses Cochran and other common-law
precedents as “far-flung authorities” no party cited. Maj. Op. at 23.
Yet, in Bogan, the Court made clear that the common law of 1871
defines the distinction between legislative and nonlegislative acts.
523 U.S. at 48–52. Indeed, in holding that it turns on whether an act
is “discretionary” or “ministerial,” the Court relied on some of the
same nineteenth-century treatises I have cited. Id. at 50–52. But the
majority prefers to base its decision on our recent precedents about
disparate contexts like personnel and zoning decisions that look
nothing like an elected school board having to decide a political issue like removing a controversial book from school libraries.
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22 WILLIAM PRYOR, C.J., Dissenting 25-13298
II. CONCLUSION
Because both controlling precedents and the common law
make clear that the Board members’ votes were legislative, they
enjoy a legislative privilege from discovery about their votes. We
should reverse the district court. Regrettably, the majority affirms
because it ignores the common law and mangles our precedents.
I respectfully dissent.