Full Opinion

USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 1 of 46 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, USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 2 of 46 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, USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 3 of 46 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 com- pelled to testify about why they determined that specific library books are inconsistent with the Board’s preexisting policies. As re- quired by Florida law, see FLA. STAT. § 1006.28(2)(a)(2), the Board has adopted a policy that requires its employees to remove any li- brary or instructional materials that are, among other things, por- nographic, 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 USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 4 of 46 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; Pol- icy 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 “ap- peal,” 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 re- quirements 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 evi- dence 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 USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 5 of 46 25-13298 Opinion of the Court 5 remove specific books as inconsistent with the Board’s existing pol- icies, 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 materi- als . . . 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 mate- rial presented,” or “[i]s inappropriate for the grade level and age group for which the material is used,” then the district “shall dis- continue 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 con- duct.” Policy 4.06 at 9(D)(8), Dkt. 219-1 at 14; Policy 2522, Dkt. 219- 1 at 61–62. USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 6 of 46 6 Opinion of the Court 25-13298 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 Flor- ida Commissioner of Education appoint a special magistrate to rec- ommend a decision to the Florida Board of Education, which can vote on the special magistrate’s recommendation. Id. The sub- stance of the appeal is about the process that the Board used to re- solve the objection, that is, “to determine whether a district con- sidered 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 Flor- ida 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 USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 7 of 46 25-13298 Opinion of the Court 7 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 un- suited 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 pornog- raphy 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 Adop- tion of Instructional Materials, https://perma.cc/H7LF-KUB5.1 Sec- ond, 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 8 Opinion of the Court 25-13298 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 fur- ther 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, ex- plaining 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 recom- mended against removing the books. The teacher appealed to the School Board. The Board con- sidered these appeals over the course of three meetings, entitling each agenda item (with some typographical variations), “[t]o Con- sider a Citizen Challenge to [book title] by [author] Pursuant to “from sources whose accuracy cannot reasonably be questioned.” FED. R. EVID. 201(b)(2). USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 9 of 46 25-13298 Opinion of the Court 9 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) [here- inafter 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) [here- inafter 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 var- ying 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 Super- intendent- and Mass-Removed Books. Although the same teacher challenged several books that were part of these removals, the Su- perintendent’s recommendation—not a citizen challenge—precip- itated these removals. USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 10 of 46 10 Opinion of the Court 25-13298 The Board voted to remove the sixteen Superintendent-Re- moved Books in 2025 under Policy 2522. The Superintendent sub- mitted a recommendation to remove these books “[p]ursuant to School Board Policy 2522,” explaining that the books were “classi- fied as adult novels,” and “contain graphic descriptions and depic- tions of sexual conduct which are not appropriate for minors,” cit- ing 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, di- rective. 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 Depart- ment of Education’s book removal list, without further review.” Id. As with the Superintendent-Removed Books, the Board unani- mously 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 USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 11 of 46 25-13298 Opinion of the Court 11 sued the Escambia School Board for violating the First Amend- ment. 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. Escam- bia 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 individ- ually moved to quash the subpoenas and for protective orders, which the district court denied “for the reasons stated” in its previ- ous order. The Board members filed two appeals, which we con- solidated. II. We review a district court’s decision whether to quash a sub- poena 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 stand- ard. Id. USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 12 of 46 12 Opinion of the Court 25-13298 III. Federal common law, which applies to evidentiary privi- leges in federal court, FED. R. EVID. 501, provides a legislative priv- ilege to state and local legislators. Pernell v. Fla. Bd. of Governors of State Univ., 84 F.4th 1339, 1343 (11th Cir. 2023). The legislative priv- ilege 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 Hub- bard, 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 prov- ing its existence.”); Hafer v. Melo, 502 U.S. 21, 29 (1991) (“[O]fficials seeking absolute immunity must show that such immunity is justi- fied 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 applica- tion of existing policies.” Crymes v. DeKalb County, 923 F.2d 1482, USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 13 of 46 25-13298 Opinion of the Court 13 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 legis- lation, 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 legisla- tive 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 deci- sion are specific, rather than general, in nature.” Id. 2 Like the parties, we rely on precedents that address whether an act is legisla- tive in nature, even if that precedent arose in the context of legislative immun- ity. 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 con- cept[s]”). USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 14 of 46 14 Opinion of the Court 25-13298 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 bur- den 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 Superin- tendent 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. USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 15 of 46 25-13298 Opinion of the Court 15 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 leg- islation 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 exer- cised 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-inap- propriate books from district media centers, as identified on the Department of Education’s book removal list, without further re- view.” 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 re- moval 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. USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 16 of 46 16 Opinion of the Court 25-13298 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. Zimmer- man Brush Co., 455 U.S. 422, 432 (1982) (explaining that a “legisla- ture may elect not to confer a property interest” without implicat- ing 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 re- move the nine Original Removed Books, it was expressly adjudi- cating 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] Pur- suant 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. USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 17 of 46 25-13298 Opinion of the Court 17 20, 2023), supra, at Item 2.B., or “[s]upport the committee’s recom- mendation,” 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 Superinten- dent- and Mass-Removed books, it was applying its established pol- icy to a set of facts. The agenda item for considering the Superin- tendent-Removed Books was phrased to “[a]pprove [the Superin- tendent’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]ur- suant 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 Flor- ida Statute Section 1006.28(2)(d)(1). Id. at Item 44.A attach. Simi- larly, the agenda item for considering the Mass-Removed Books was phrased: to “[a]pprove [the Superintendent’s] recommenda- tion 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-Re- USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 18 of 46 18 Opinion of the Court 25-13298 moved Books). Because these book removal votes were “mere ad- ministrative 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’ stand- ards 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 re- quired that the Superintendent “eliminate” all books identified as pornographic or age-inappropriate on the Department of Educa- tion’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 Su- perintendent was not exercising legislative power when he deter- mined 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 leg- islation.” In re Hubbard, 803 F.3d at 1308; cf. Bogan, 523 U.S. at 55 USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 19 of 46 25-13298 Opinion of the Court 19 (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 Su- perintendent, 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 con- text, a legislature exercises policymaking discretion by “pre- scrib[ing] the rule,” and then, “the application of that rule de- pend[s] on executive fact-finding.” Gundy v. United States, 588 U.S. 128, 158 (2019) (Gorsuch, J., dissenting). Such administrative fact- finding is not rote: it requires judgment and decision-making. But the act of applying a preexisting policy to a specific set of facts, with- out 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 admin- istering it.”). What is more, none of the acts that we have previously rec- ognized 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 thou- sands 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 USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 20 of 46 20 Opinion of the Court 25-13298 the voting list. Id. at 1188. We concluded that the commission’s in- vestigation 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.” (cita- tion 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 in- volved 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 or- dinance to allow Baytree to build a low-income residential com- plex” 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 de- cision. But the plaintiffs in this case do not seek to depose the Board members about their decisions to create, repeal, or amend any pol- icies 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 USCA11 Case: 25-13298 Document: 58-1 Date Filed: 10/19/2026 Page: 21 of 46 25-13298 Opinion of the Court 21 this one—i.e. applying existing policies to specific facts—is not leg- islative 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 mem- bers 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 re- acting 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 a