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Florida's war on school speech, a Law Dork Q&A
The ACLU of Florida is fighting back against Gov. Ron DeSantis. Staff attorney Jerry Edwards talks with Law Dork about the Stop WOKE Act litigation, library books, AP courses, and more.
Florida has been in the news regularly these past few weeks regarding Gov. Ron DeSantis and the Republican project in the state to restrict certain types of discussions in schools — particularly when it comes to race, sexual orientation, and gender identity.
From empty library shelves to canceled courses, very real consequences are being seen across the state.
Three recently enacted Florida laws — the Stop WOKE Act and the “Don’t Say Gay” law, which have gotten lots of attention (and coverage at Law Dork), and a 2022 law, H.B. 1467, that created new school library requirements — are leading to a lot of the changes.
The Stop WOKE Act (eventually passed as the Individual Freedom Act) was one of the DeSantis’s efforts to attack critical race theory, as misinterpreted by the modern Republican Party, by limiting race-related lessons and discussions in schools and the workplace. The “Don’t Say Gay” law (formally named the Parental Rights in Education Act) similarly attempts to limit lessons and discussions relating to sexual orientation or gender identity in schools. Finally, the changed rules for books available through schools is part of a law that also set term limits for school board members, H.B. 1467. (It didn’t get a catchy name. Yet.)
To get some insight into the disputes over and consequences for student’s speech rights in the state, I reached out to the ACLU of Florida. Among other actions, they are part of the team challenging part of the Stop WOKE Act that led to an injunction against its enforcement at the college level by Chief U.S. District Judge Mark Walker in November 2022. As Walker concluded:
Jerry Edwards, a staff attorney with the ACLU of Florida, is one of the lawyers on the the case. He spoke with Law Dork on Monday about the Stop WOKE Act litigation and other free speech questions being raised in the state.
As Edwards, who works on criminal justice and free speech matters at the legal advocacy organization, told me, “I was born and raised in Florida, left the state for a few years, and have now returned to try to fight for people’s rights.”
So Edwards was more than happy to answer several variations on my regular question: What’s going on with Florida?
LAW DORK: So, big picture, what’s it like to be a lawyer litigating for the ACLU in Florida at this time?
JERRY EDWARDS: I guess there’s two sides of it. One, you know, it guarantees that I have job security. But on the other side of things, I don’t want that job security. I’d be quite happy if my job disappeared because the governments of the United States and Florida decided they don’t want to violate people’s rights anymore and so we don’t need civil rights lawyers. But that doesn’t seem to be happening anytime soon.
It’s disconcerting and very scary, frankly, that we’re seeing these things happen. And then they go to other states. Other states see what’s happening here and they’re like, “Oh, Governor DeSantis is getting a lot of press off of this. Why don’t I put this law in effect in our state?” And so it spreads, almost like a cancer — at least in my opinion, a cancer — throughout the United States.
And what the biggest problem here is is it’s an attack on free speech, and free speech rights are foundational to our democracy. It also is targeting the history of Black and brown folks in this country, and their history is as integral to the United States as anybody else. It’s just wrong, what we’re seeing — and so, in my opinion, anti-American to try to silence these discussions and debates because you, the government, disagrees with them. And obviously, I think the governor would say that I’m wrong and that there’s something wrong with talking about these issues.
But yeah, I’m going to be frank with you, it’s not a good time here, at least in my opinion. I’m hoping things will get better, because this is not the Florida I grew up in and remember.
LAW DORK: On the litigation side, can you talk a little bit about where the lawsuit that you’re involved with challenging the Stop WOKE Act is at? And what people’s rights are right now?
EDWARDS: So, we sued in the higher education sphere, challenging the Stop WOKE Act, to enjoin it. We were able to get a preliminary injunction from the district court that enjoins the state university system Board of Governors, who regulate all the state universities here in Florida. The private business portion is also enjoined from a separate lawsuit. Basically, that means the government is not allowed to enforce the law.
For the K-through-12 portion, unfortunately, there has not been a lawsuit brought yet to put a stop to the law, so it is still in effect in K through 12. And Florida universities, arguably, could have some wiggle room to try to enforce it, but our understanding is that they’re not going to try to mess with this injunction, as the judge has made it clear he is very willing to enforce it.
LAW DORK: The higher education case right now is both set for trial and on appeal. Can you explain how that works?
EDWARDS: Yes, so a preliminary injunction is immediately appealable. So the defendants here were not happy that they lost at the district court level, the trial level, and so they appealed the injunction. That’s currently pending before the [US Court of Appeals for the] 11th Circuit. They’ve asked for the 11th Circuit to stay the injunction, which means to put a stop to it for now until they decide the case.
LAW DORK: A stay of an injunction would actually allow the state to enforce the Stop WOKE Act.
EDWARDS: Correct. It would put a hold on the injunction, so the state could then go and enforce the Stop WOKE Act in higher education with the public universities. And that’s still pending. It’s been all briefed, and the 11th Circuit is thinking on it.
At the trial court level, we currently have a trial set for the fall of 2023 and are going through the discovery process right now. We’re exchanging documents and reviewing evidence.
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LAW DORK: Talking with people about some of the other Florida litigation, specifically the with the “Don't Say Gay” law, I know that some of the concerns are how long this litigation takes. They see in other cases that actions are instantly halted, like when Texas sues to stop the Biden administration. Why does this take so long when you’re dealing with a law like this, that’s affecting a school, where every year matters?
EDWARDS: There are a lot of challenges. I don’t want to be too cynical here, but I think it helps when you have friendly courts who are inclined to move quickly. And, I will say that, in our case, the district judge, he did move quickly. And he was very open to the arguments both sides were making, and I think he was very fair.
We took a little bit of time to try to build this case because we were concerned that if we did end up in front of an unfriendly court we needed to have have all our I's dotted and T's crossed to make sure we didn’t get tossed out. With the cases you see out of Texas, a lot of times, that’s the government suing the government, and they have some advantages that civil rights plaintiffs don’t always get.
LAW DORK: You mentioned the business injunction, and the fact that there’s no litigation on the K through 12 front. Can you talk about like the decision to bring litigation in some areas of the law, but not others? Is that because there’s a thought that a K through 12 case would be weaker? Or what what’s the deal?
EDWARDS: Yes, I'm happy to do that. Our outlook is that it’s not necessarily that the K through 12 case is weaker, but it’s a different sort of case. With the higher education and the business litigation, it was a lot easier, based off of the law an how it’s developed in those areas, to bring a facial challenge to the law. … With K through 12, because there’s not the same First Amendment protections that you get in higher education, or as a private business. At least as we view the law, we really felt we had to wait for an enforcement action. Basically, we needed to wait for a school district to come and apply the law in a way that we felt was clearly unconstitutional — or the Florida Department of Education to apply the law in a way we felt was unconstitutional.
LAW DORK: All of that, however, is not been what’s been in the news these past weeks. Recently, when it comes to Florida, libraries have been in the news, Florida’s AP classes have been in the news. While I have you, I want to talk about those things, what the ACLU thinks about them, what you think about those steps, and what people should be concerned about or not concerned about when it comes to those issues?
So, with the AP class, this decision not to allow this African American Studies AP class in Florida, can you talk about what happened there and why they’re saying they can do it?
EDWARDS: So, the College Board filed for approval, and I know they had a pilot course going at two different Florida high schools this year with the AP African American studies course. When the Florida Department of Education reviewed the course to decide whether to allow it to be taught here in Florida or reject it, they rejected it. They argued that it violates Florida law and doesn’t have educational value. I very clearly disagree with the latter points. On the [question you asked], what they appear to be citing to is a Department of Education rule banning “critical race theory”— air quotes — and also the Stop WOKE Act as both prohibiting this course from being taught here in Florida.
LAW DORK: If this decision goes forward, will there be litigation in some form or another?
EDWARDS: I can't speculate what we will do. Benjamin Crump has said that he is looking to litigate this if the governor does not change his mind. I will say that we at the ACLU of Florida are also taking it very seriously and we are investigating what’s happened here and trying to determine our next steps, because this is one of those situations where they have appeared to apply the statute in a way that might be violating students’ free speech rights. Now, that’s still a determination we’ve yet to make. And once we make that, we’ll decide how to proceed.
LAW DORK: Now, this library question. It sort of keeps building. Over the weekend, there was a video going viral from a parent showing his children’s library empty.
There were all of these reports about Manatee County. What’s going on?
EDWARDS: Yeah, it’s getting a bit crazy here. I guess that’s normal Florida, but not in a good way. Sometimes the crazy is good, other times, it’s scary — and this is pretty scary.
So basically, there’s a law that was passed in 2022, HB 1467, that required these library/media specialists to go through and catalogue these books to make sure they meet requirements, including age appropriateness. And there’s some question as to whether the Stop WOKE Act and “Don’t Say Gay” law also apply. The state is kind of being mum on whether or not they do. I know in the “Don’t Say Gay” litigation, I was told that the state argued that it was much narrower and that it doesn’t apply to the libraries. Now they appear to not be taking a stance. So, there’s an open question whether these laws apply to the library books.
And unfortunately, teachers are kind of caught in the crosshairs in that they really don’t know what to do because they’re not getting clear direction. And so, what some school districts, at least, are doing is telling them, ‘Until we catalog all these books for your school library and decide whether they can be read by the people in your class, you need to either remove him, or cover them up and not let students access them.’ So we’re seeing teachers cover them up or remove them. And additionally, this law, HB 1467, also allows challenges to books. And so we’re seeing in quite a few places in the state books being rejected, because they touch on race or they touch on sexual orientation or gender issues — including books about people like Martin Luther King Jr., Rosa Parks, and Sylvia Mendez.
LAW DORK: On a closing note, you chose to go back to deal with this. You're from Florida, and you left, and then came back. I just wanted to ask about that decision.
EDWARDS: I would say the biggest reason why is I had a terminally ill relative, and I wanted to spend time with them before they passed. But in addition to that, my family are fourth-generation Floridians. We came here in the 1920s and ’30s. My parents still live here, I have siblings who have lived here on and off, I have other family that lives here. I have close friends who live here. My loved ones are, really, mostly in the state, and it just — it’s upsetting. And I want to be able to help them. I want to fight for their rights, and I want to fight for the rights of other people I care about in the state.
I'm happy to be back here fighting. I wish I didn’t have to be fighting for rights, but I’m here to stay and I’m certainly not going to let very problematic government drive me away. Florida deserves better. Floridians deserve to have their free speech rights respected and protected. And until that happens, I guess I’m staying here and fighting.
This interview has been edited for length and clarity.
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