Background

In December 2021, Florida’s Governor, Ron DeSantis, announced a legislative proposal, which he deemed the “Stop Wrongs to Our Kids and Employees (W.O.K.E. Act), to “fight back against woke indoctrination.” In early 2022, the Florida Legislature passed the Individual Freedom Act (IFA), which incorporated several of Governor DeSantis’s proposals from the “Stop W.O.K.E. Act.” The IFA amended, among other laws, the Florida Educational Equity Act (FEEA) to prohibit instruction that advances concepts that make anyone feel “guilt, anguish, or other psychological distress” related to race, color, national origin, or sex because of actions in which the person played no part and was “committed in the past.” The IFA also amends the Florida Civil Rights Act (FCRA) to prohibit instruction and training that promotes or advances students or employees to believe any of eight specified concepts, all of which are traditionally associated with diversity, equity, and inclusion. The IFA carves out an exception, permitting educators to teach on these topics if they present them “in an objective manner without endorsement.” 

The temporary injunction ordered by Judge Walker was in response to two lawsuits filed by university professors and college students who challenged the IFA and the Governor’s implementing regulation as they related to the amendments to the FEEA prohibiting the expression of certain viewpoints in the classroom, including the systemic nature of racism and Critical Race Theory. 

In his ruling, Judge Walker determined that these policies proffered by the IFA violate First Amendment free speech protections and due-process rights on college campuses. The professors claimed the IFA infringed upon their right to free speech, while the students claimed infringement upon their right to receive information under the First Amendment. The court analyzed both the professors’ and students’ claims under the Eleventh Circuit’stest balancing the speaker’s First Amendment rights with the university’s special interests in enforcing limitations on the speech. The court found that the balancing test favored the professors’ and student’s free speech rights over the public universities’ enforcement of a viewpoint-discriminatory ban targeting protected speech. With respect to due-process claims, the professors and students argued the IFA was impermissibly vague, in violation of the Fourteenth Amendment’s Due Process Clause, and the court agreed.

Judge Walker’s temporary injunction blocks the IFA from taking effect in Florida’s public universities while these issues are litigated. In blocking Florida’s public university system from enforcing the IFA, the Court held that the plaintiffs were likely to succeed on the merits of their viewpoint discrimination claim. 

In a separate but related lawsuit (Falls v. DeSantis) before the same judge, two K-12 teachers and a soon-to-be kindergartener were included in a group of plaintiffs challenging the IFA who filed for a preliminary injunction to bar enforcement of the IFA. These plaintiffs were denied the preliminary injunction because the court found that they did not show a substantial likelihood of success on the merits because they would be unlikely to establish standing. This lawsuit remains in litigation.

What this means to you

If you are a public higher education institution in Florida, the state of Florida is prohibited from enforcing the IFA with respect to how lessons on race and gender can be taught by your faculty and staff. Notably, this ruling does not extend to K-12 teachers and students, and the preliminary injunction preventing enforcement of the IFA against K-12 teachers and students was denied in a separate lawsuit.

The parties will continue to litigate these cases, and ultimately, a determination will be made regarding whether Florida is permanently enjoined from enforcing the IFA against higher education institutions.

[View source.]