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TALLAHASSEE, Fla. — A federal judge in the coming days will decide whether to block Florida from enforcing a high-profile new law backed by Gov. Ron DeSantis that limits how race can be brought up in the classroom and workplace.
Lawyers representing a group of parents and educators challenging the so-called “Stop WOKE Act” faced off in court Tuesday against the state in an attempt to put the policies on hold as the case plays out in the legal system. The timing is critical since education agencies are crafting rules to soon enact the measure.
While the group argued that the legislation is suppressing free speech, Chief U.S. District Judge Mark Walker expressed “grave concerns” about the lawsuit, whose sole student defendant is an incoming kindergartner.
“How in the world would I find there’s anything imminent?” Walker said at one point during Tuesday’s 5-hour hearing.
The lawsuit, filed minutes after DeSantis signed FL HB 7 (22R), or the Individual Freedom Act, in April, is attempting to overturn the controversial bill that targets any traces critical race theory inside Florida’s school system and “woke” corporate trainings at companies. But with trial set for next April, the group of opponents, including the president of a consulting firm that offers implicit bias training, is attempting to put the legislation on hold through a preliminary injunction.
Critical race theory, an analytical framework developed by legal scholars, examines how race and racism have become ingrained in American law and institutions since slavery and Jim Crow. Critical race theory has been used by conservatives to criticize how race is being taught in the K-12 education system. Most public school officials across the country don’t teach the theory — even in districts where lawmakers are seeking to ban it.
Although the anti-woke legislation does not call out critical race theory by name, it builds on a state Board of Education rule passed to thwart local teachers from going “rogue” in the classroom by leading lessons that include pieces of the subject. According to the rule, critical race theory and The 1619 Project on race from The New York Times are examples of theories that “distort historical events.”
The challengers contend that the legislation is part of an effort by Florida’s conservative policymakers to suppress speech in schools and workplaces across the state by passing laws forbidding teachers and employers from endorsing concepts about race and sex that they disagree with. The laws are “unconstitutional viewpoint-based restrictions on speech” that violate their First Amendment rights, according to the attorneys.
The measure expands Florida’s anti-discrimination laws to prohibit schools and companies from leveling guilt or blame to students and employees based on race or sex, taking aim at lessons over issues like “white privilege.” To that end, the legislation creates new protections for students and workers, including that a person should not be instructed to “feel guilt, anguish, or any other form of psychological distress” due to their race, color, sex or national origin.
Attorneys for the plaintiffs argued that Florida’s leaders are attempting to “canonize” a different “reality of history,” points similar to those made by Democrats claiming the legislation would “whitewash” the teaching of social studies.
Walker, appointed to the bench by former President Barack Obama, pressed the lawyers representing the group for evidence of imminent harm to students caused by the legislation, questioning how an incoming kindergartner could be affected by its policies.
“Discussions of race don’t start in the fourth grade – they start at the very beginning,” Elizabeth White, an attorney with Sheppard, White, Kachergus, DeMaggio and Wilkison said during the hearing.
Lawyers for the state, however, contend that the legislation “regulates pure Government speech” as in curriculum used in schools and that the First Amendment “simply has no application in this context.” Educators are free to express their opinions on race or any topic under the legislation and students are fine to listen – so long as it’s not in a public school, the state wrote in its motion against the injunction.
“All it says is that state-employed teachers may not espouse or advocate in the classroom views contrary to the principles enshrined in the Act, while they are on the State clock, in exchange for a State paycheck,” the attorneys wrote.
For businesses, the attorneys challenging the state attempting to show how the new law could spark lawsuits over employee trainings on implicit bias and racism. They warned that business owners like Tammy Hodo, president and founder for All Things Diverse, a firm that leads training on issues including institutional racism, could be sued for someone perceiving a lesson as “anti-white.”
Yet the state argues that all the act does “is prevent employers from conscripting their employees, against their will, into the audience as a condition of their employment.”
“This is a hipbone connected to a thighbone type of argument that by definition is quite conjectural,” said Charles Cooper, an attorney with Cooper & Kirk, the Washington-based firm representing the state.
Judge Walker said Tuesday that he would make a decision on the injunction in a “couple of days” while a ruling on a possible move to dismiss the case outright sought by the state will take longer to consider.