Florida’s “Anti-Woke” Legislation and How Its Intentions Remain Protected

By: Sari Richmond

Edited by: Sarah Wachs and alexandria nagy

I. Florida House Bill 7 

On April 22, 2022, Florida Governor Ron DeSantis signed House Bill (HB) 7, legislation allegedly designed to “give businesses, employees, children, and families tools to stand up against discrimination and woke indoctrination.”[1] HB 7 (the Individual Freedom Act) was promoted by DeSantisto ensure children would not be raised to be shameful or spiteful by ending the instruction of critical race theory in schools. The law states that officials cannot promote material that could “reflect unfairly” upon a certain group or that endorses the use of “discrimination” to achieve diversity – a direct attack on affirmative action.[2] HB 7, alongside other restrictive legislation like the “Don’t Say Gay” bill, has come under heavy critique from opposers, who note not only a clear violation of free speech ideals that conservatives often defend  but also an attempt to “whitewash” history by avoiding subjects like systemic racism and its role in the U.S.[3] Legal professionals have further noted that the vague language in the HB 7 bill is likely intentional, providing deniability for lawmakers and creating confusion for any day-to-day reader.[4] 

II. Free Speech Versus Government Authority

This issue lies in the intersection of free speech rights and the authority of the government to regulate the workplace and some practices of federally funded schools. In instances of hate speech and verbal harassment, there are established precedences regarding the ability of the government to monitor such. Still, there is a lack of precedence regarding states attempting to enact such limits.[5] Through the Due Process Clause of the 14th Amendment, incorporation indicates that states must follow the same protection of civil liberties outlined in the Bill of Rights, a sentiment upheld by recent Supreme Court decisions like Kennedy v. Bremerton School District. In this case, football coach Joseph Kennedy’s practice of leading prayers for the players of his public high school team was ruled constitutional and protected under his rights as an individual.[6] Through this precedent, we must question whether teachers’ rights to address issues regarding systemic race and sexual orientation would also be considered individual free speech rights.

III. Recent Implications

On October 30, 2023, the 11th U.S. Circuit Court of Appeals held in a 2-1 decision that a group of Floridian college professors and a student could not subpoena documents from legislators that would provide insight into the intentions of HB 7. Prior to this decision, a lower court placed tight regulations on the plaintiffs’ use of subpoenas, saying that the group of professors and a student had little to no rights to issue subpoenas targeting lawmakers. Furthermore, the 11th Circuit Court held that legislators are “entitled to an absolute common law,” which protects them from having to reveal motivation for official actions. This holding has a notable effect on the outcome of discrimination cases following the enactment of HB 7 and similar policies. Intention to discriminate based on race, gender, sexual orientation, or other facet of identity is often key in producing a verdict that favors the plaintiff in legal cases challenging discriminatory laws. Furthermore, plaintiffs in discrimination cases also rely heavily on historical context; however, the Supreme Court held that states must be “cautious” of considering historical context as evidence.[7] The combination of these legal blockades against discrimination suits strengthen the effects of bills like HB 7 and take power from those most impacted.

IV. Conclusion

Overall, the implications of HB 7 extend beyond content restriction in public school classrooms. The “Anti-Woke” legislation was paraded as a way to avoid divisive or upsetting content in the schooling of children but has emerged as a statute for how diversity, equity, and inclusion initiatives and history classes can be taught. As the issue falls on an intersection between free speech and government regulation, critics have already begun to attack HB 7’s status aligned with the Constitution. Resulting from the confusion of the validity of HB 7 and the intentions in its induction are holdings that limit plaintiffs in discrimination suits. Ultimately, HB 7 will continue to be challenged despite current courts protecting its legislators from revealing their motivation in creating restrictive, targeted laws.

Notes

1. “Governor Ron DeSantis Signs Legislation to Protect Floridians from Discrimination and Woke Indoctrination.” 2022. Florida Governor Ron DeSantis. 

2. Katie Reilly. 2022. “Florida's Governor Just Signed the 'Stop Woke Act.' Here's What It Means for Schools.” Time.

3. Reilly, “Florida’s Governor Just Signed the ‘Stop Woke Act.’ Here’s What It Means for Schools.”; Madeleine Carlisle. 2022. “Florida Passed The Don’t Say Gay Bill. Here's What It Means.” Time.

4. Cas Mudde. 2023. “What is behind Ron DeSantis's Stop-Woke Act? | Cas Mudde.” The Guardian. 

5. Kevin D Kelly. n.d. “Florida's “Stop WOKE” Act and Its Potential Impact on DEI Training.” Locke Lord.

6. Kennedy v. Bremerton School District, 597 U.S. 11-32 (2022)

7. Hassan Kanu. 2023. “Lawmakers get broad shield in challenge to Florida's 'anti-woke' law.” Reuters. 

Bibliography

Carlisle, Madeleine. 2022. “Florida Passed The Don’t Say Gay Bill. Here's What It Means.” Time. https://time.com/6155905/florida-dont-say-gay-passed/.

“Governor Ron DeSantis Signs Legislation to Protect Floridians from Discrimination and Woke Indoctrination.” 2022. Florida Governor Ron DeSantis. https://www.flgov.com/2022/04/22/governor-ron-desantis-signs-legislation-to-protect-floridians-from-discrimination-and-woke-indoctrination/.

Kanu, Hassan. 2023. “Lawmakers get broad shield in challenge to Florida's 'anti-woke' law.” Reuters. https://www.reuters.com/legal/government/column-lawmakers-get-broad-shield-challenge-floridas-anti-woke-law-2023-11-02/.

Kelly, Kevin D. n.d. “Florida's “Stop WOKE” Act and Its Potential Impact on DEI Training.” Locke Lord. Accessed November 15, 2023. https://www.lockelord.com/newsandevents/publications/2022/05/floridas-controversial-stop-woke.

Mudde, Cas. 2023. “What is behind Ron DeSantis's Stop-Woke Act? | Cas Mudde.” The Guardian. https://www.theguardian.com/commentisfree/2023/feb/06/what-is-behind-ron-desantis-stop-woke-act.

Reilly, Katie. 2022. “Florida's Governor Just Signed the 'Stop Woke Act.' Here's What It Means for Schools.” Time. https://time.com/6168753/florida-stop-woke-law/.