Florida’s Restrictions on Instruction About Race and Sex Hit Legal Obstacle

August 21, 2022 by Tom Ramstack
Florida’s Restrictions on Instruction About Race and Sex Hit Legal Obstacle
Florida's Republican Gov. Ron DeSantis addresses attendees during the Turning Point USA Student Action Summit, Friday, July 22, 2022, in Tampa, Fla. (AP Photo/Phelan M. Ebenhack, File)

TALLAHASSEE, Fla. — Florida Gov. Ron DeSantis suffered setbacks Thursday when a federal judge blocked part of a controversial state law that bans employers from promoting some sex- and race-based concepts during training sessions.

The same day, the American Civil Liberties Union filed a lawsuit for an injunction to lift the law’s prohibitions on teaching race and gender issues in schools.

The law took effect July 1. Opponents argue the law violates their First Amendment rights to free speech.

The Individual Freedom Act was signed into law by DeSantis, who is a top contender in some polls as a Republican candidate for president. He said he was trying to protect residents from other persons who might unfairly impose their personal views onto them.

DeSantis, who is running for reelection this year as Florida’s governor, was the second choice for president in 2024 in a recent Conservative Political Action Conference straw poll. Donald Trump was their first choice.

The poll was taken before the Aug. 8 FBI search of Trump’s Mar-a-Lago home and an ongoing criminal investigation. If Trump’s name is removed from the CPAC poll, DeSantis is the lead Republican presidential candidate.

The strong opposition he faces against the Individual Freedom Act creates an uncertain future for his political campaigns. The Individual Freedom Act also is known as the Stop Wrongs to Our Kids and Employees Act.

“In Florida, we will not let the far-left WOKE agenda take over our schools and workplaces. There is no place for indoctrination or discrimination in Florida,” DeSantis said when he signed the bill into law in April.

The law is directed at lessons on issues such as “White privilege” and says no one should be made to “feel guilt, anguish, or any other form of psychological distress” because of their race, color, sex or national origin.

Attorneys for the state argued during a hearing that the Stop WOKE Act did not intrude on free speech rights but only says employers cannot require employees to listen to “certain speech against their will.” 

Chief U.S. District Judge Mark Walker harshly criticized the Stop WOKE Act in his 44-page order granting the preliminary injunction. He called it an example of policies that are “bordering on unintelligible.”

He set a civil trial date for next April in the lawsuit to block enforcement of the law. He also ordered the state attorney general and the Florida Commission on Human Relations not to enforce it.

“If Florida truly believes we live in a post-racial society, then let it make its case,” Walker wrote. “But it cannot win the argument by muzzling its opponents. Because, without justification, the [bill] attacks ideas, not conduct, [the businesses] are substantially likely to succeed on the merits of this lawsuit.”

He added, “Recently, Florida has seemed like a First Amendment upside down.”

The judge was responding to a lawsuit filed by a group of businesses that included a Ben & Jerry’s franchise and a workplace diversity consultancy called Collective Concepts. 

Their attorneys from public interest firm Protect Democracy and law firm Ropes & Gray say the policy requires them to censor themselves “on important societal matters” and “from engaging employees in robust discussion of ideas essential for improving their workplaces.”

In separate legal action, the ACLU filed a lawsuit on behalf of college professors and students seeking an injunction against parts of the Stop WOKE Act that apply to educational institutions. ACLU attorneys call it an infringement upon academic freedom.

Florida is one of 17 states that has approved laws restricting educators’ authority to teach about race and sex, according to an Education Week analysis published last month. The law imposes penalties for violations that can include job termination.

The laws are directed primarily at “critical race theory,” which teaches that racism is ingrained into politics and sociology in a way that gives White people an advantage over other races. It generally has been offered as an elective course in colleges but has been considered for instruction in some high schools.

The Stop WOKE Act approved by the Florida Legislature last year continues a movement started Sept. 17, 2020, when then-President Trump denounced critical race theory in a speech and announced the formation of an advisory committee called the 1776 Commission to promote “patriotic education.”

President Joe Biden dissolved the 1776 Commission last year while using a justification similar to attorneys who sued the Florida Department of Education on Thursday.

“All educators and students have a right to teach and learn free from censorship or discrimination,” said Leah Watson, senior staff attorney with the ACLU of Florida’s Racial Justice Program. “The First Amendment broadly protects our right to share information and ideas, and this includes educators’ and students’ right to learn, discuss, and debate issues around systemic racism and sexism.”

Tom can be reached at [email protected] and @TomRamstack

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