Florida “Stop WOKE” law takes effect
Legal experts cite constitutional red flags
A new Florida law which redefines how students and employees learn about discrimination took effect Friday, and already the controversial law has come under fire in the courts as a violation of free speech.
The Individual Freedom Act, dubbed the “Stop WOKE Act” by Florida Gov. Ron DeSantis, represents a political line in the sand drawn by Florida’s Republican-controlled legislature and DeSantis.
“In Florida, we will not let the far-left woke agenda take over our schools and workplaces” the governor said upon signing the legislation in April.
Among other things, the law prohibits Florida schools and employers with 15 or more workers from teaching that members of one race, color, national origin, or sex are morally superior or inherently racist or sexist. It also bars teaching that moral character or status is predetermined by race, color, origin or sex, or that those taught should bear responsibility and feel guilt, anguish or psychological distress because of past discrimination in which they played no part.
Legal experts say that the law’s efforts to curb critical race theory concepts may succeed in primary and secondary schools but face stiff challenges elsewhere.
“I think the law has some serious constitutional defects, particularly as it applies to faculty members in higher education and to employers,” said Adam Steinbaugh, an attorney for Philadelphia-based Foundation for Individual Rights and Expression. “The state can’t pick winners and losers and say that the following concepts are permissible or wrong. That’s up to individual people, and we figure those out through speech.”
On Monday, a federal judge denied an initial challenge to Florida’s law for technical reasons. Another lawsuit could decide the law’s merits. Honeyfund.com, an online wedding registry, objects to the Florida law. The Clearwater, Fla., company is suing, claiming the First Amendment precludes Florida from banning “disfavored concepts.” Chevara Orrin, a “diversity consultant” whose clients include Walgreens, Make-A-Wish America, and Facebook, is a co-plaintiff in the suit.
As House Bill 7, the Individual Freedom Act passed largely along party lines in the Florida Senate (24-15) and House (74-41), where staff analyzed constitutional issues. That analysis concluded courts authorize a public employer to reasonably regulate employee speech that is part of the scope of employment.
James Paretti Jr., former senior counsel at the U.S. Equal Employment Opportunity Commission, now advises clients for Littler, the world’s largest labor law firm representing management. He’s recommending Florida clients pause their corporate training while the law is litigated.
“If I’m an employer in the state of Florida who truly believes that implicit (racial or gender) bias is something that affects decision-making, and I want to convey that to my employees … the government is telling me I can’t do that,” Paretti said. “I’m not permitted to speak those words under, potentially, civil penalties. That’s a tough question.”
In April, Florida Lt. Gov. Jeanette Nuñez said the law prioritizes education over indoctrination and represents the nation’s first legislation to end “corporate wokeness and critical race theory” in schools.
Paretti identified an executive order by former President Donald Trump as a model for the Florida law. A federal judge in California blocked that order in December 2020 prior to President Joe Biden revoking it the following month. Aimed at federal contractors, the Trump order sought to combat race and sex stereotyping in workplace diversity training.
Critical race theory concepts have proven controversial—particularly in primary and secondary schools. On Monday, a group of parents appealed to the Virginia Court of Appeals after a lower court dismissed their case against the Albemarle County School Board over what they termed racially divisive indoctrination of students.
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