Wake-up call for “Stop WOKE Act”
Court rules controversial Florida law fouls out on free speech protections
Florida Republican Gov. Ron DeSantis told a recent Pennsylvania audience that his state was “where woke goes to die,” but in at least in one respect a federal judge has concluded that death must be deferred.
In March, Florida legislators passed the Individual Freedom Act (IFA)–also dubbed the “Stop Woke Act,” or “Stop Wrongs to Our Kids and Employees.” The measure amends the state’s civil rights law to bar schools and employers from requiring employees to attend training that promotes certain categories of “anti-racist” concepts. Such training has proliferated, often under the heading of “diversity, equity, and inclusion.”
Concepts banned by IFA include teaching that one race is morally superior to another, that a person is inherently racist or sexist simply by virtue of their race or sex, or that virtues such as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist. Proponents say the law roots out ever-pervasive critical race theory concepts that are, despite the anti-racist title, racist and divisive.
Challengers included two employers, Honeyfund.com, a technology firm; Primo, a Ben and Jerry’s franchisee; and a diversity consultant who sought to implement “anti-racist” training. They argued that the law constituted a viewpoint-based restriction on private speech, which violates the First Amendment.
In Thursday’s ruling, Chief U.S. District Judge Mark Walker, an Obama appointee, agreed with the challengers, issuing an order temporarily putting a hold on the implementation of the law with respect to private employers. He described the DeSantis administration’s position this way:
“In the popular television series Stranger Things, the ‘upside down’ describes a parallel dimension containing a distorted version of our world. Now, like the heroine in Stranger Things, this court is once again asked to pull Florida back from the upside down.”
Walker rejected the state’s argument that the law regulated only conduct, not speech. “Because the IFA covers any required activity, an employer could require every employee to read Woke, Inc., Inside Corporate America’s Social Justice Scam but could not require employees to read The Color of Law,” he wrote, concluding, “The bottom line is that the only way to determine whether the IFA bars a mandatory activity is to look to the viewpoint expressed at that activity—to look at speech.”
Walker did offer a slender escape valve for white employees, noting that existing discrimination law already prevents companies from running a training program so offensive and hostile that it creates a hostile work environment for white employees.
In two lawsuits, one in Springfield, Mo., and the other in Evanston, Ill., employees at public schools, while not claiming a hostile working environment, seek to counter mandatory anti-racist training by claims that it violates free speech guarantees or equal protection by dividing students and teachers by race.
Kimberly Hermann, an attorney at the Southeastern Legal Foundation that represents the school employees, said the idea that America is based on white supremacy is nothing new. “This isn’t something that happened overnight but something we woke up to overnight,” said Hermann. “It has been something that has been being pushed and pulled into our schools for decades, largely without anyone realizing it.”
Litigation over Florida’s Stop WOKE Act won’t end soon. On Thursday, a group of instructors and students at Florida universities, represented by the American Civil Liberties Union, also sued the state, calling the law “racially motivated censorship” to shut down discussion of “systemic inequalities.” They contend that universities have canceled anti-racist training, “creating a climate of increased racial hostility and harassment on campus by stigmatizing racial justice.”
Nor is the challenge by private companies over. “Judge Walker has effectively ruled that companies have a First Amendment right to instruct their employees in white supremacy,” Taryn Feske, DeSantis’ communications director, told The Hill. “We disagree and will be appealing his decision.”
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