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Judge blocks Florida’s ‘Stop Woke Act’ restrictions for private companies

The Washington Post logo The Washington Post 8/19/2022 Tim Craig
Florida Gov. Ron DeSantis has pushed laws that limit discussion of diversity and inclusion in workplaces, colleges and universities, and public schools. © Rebecca Blackwell/AP Florida Gov. Ron DeSantis has pushed laws that limit discussion of diversity and inclusion in workplaces, colleges and universities, and public schools.

FORT LAUDERDALE, Fla. — A federal judge on Thursday blocked Florida from enforcing a new state law that limits how private companies teach diversity and inclusion in the workplace, saying the measure violates the U.S. Constitution’s First Amendment right to freedom of speech and expression.

In a ruling that took aim at one of Gov. Ron DeSantis’s top priorities, U.S. District Court Judge Mark E. Walker said Florida has turned “the First Amendment upside down” by trying to regulate how employers train employees on topics such as racial inclusion and gender equity.

“Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely,” Walker wrote, comparing the state to the television series “Stranger Things.” “But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.”

Walker’s ruling blocks Florida Attorney General Ashley Moody (R) and state regulators from enforcing a key provision of the “Stop Woke Act,” which the Republican-controlled legislature approved in March. DeSantis, a possible candidate for president in 2024, frequently touts the measure during political speeches in front of conservative audiences.

A DeSantis spokesman said the state plans to appeal the decision. Moody’s office did not immediately respond to requests for comment.

The “Stop Woke Act,” also referred to in court filings as the “Individual Freedom Measure,” prohibits trainings in public schools, colleges and universities, and workplaces that may cause someone to feel guilty or ashamed about the past collective actions of their race or sex. A violation of the act is an offense under state anti-discrimination laws.

As students return to classrooms, the law is already having far-reaching consequences, with teachers shelving some lesson plans amid considerable confusion over how it will be enforced. In July, the University of Central Florida even removed statements condemning racism from some websites, which faculty members believed was in response to the law.

The injunction, issued by Walker in U.S. District Court for the Northern District of Florida in Tallahassee, only blocks the enforcement of provisions of the law that deal with trainings offered by private employers.

But several other legal challenges have been filed against other provisions of the law, including a lawsuit Thursday that the American Civil Liberties Union filed on behalf of 10 college professors. That suit, also filed in federal court, seeks to block Florida from limiting how colleges and universities offer lessons on race, gender and the legacy of discrimination.

The lawsuit that Walker ruled on Thursday was brought by two Florida-based companies, Honeyfund.com and Primo, as well as an individual and a consulting firm that conducts diversity trainings for businesses around the state.

Honeyfund.com, based in Clearwater, Fla., is an online wedding registry. Primo is a franchise of Ben & Jerry’s Ice Cream, with stores in Clearwater and Tampa.

Honeyfund.com had argued in court it worried that the new law would prevent it from holding an employee seminar that included “advancing women in business, understanding gender expansiveness” and “understanding institutional racism.” Primo planned to teach its employees about “systemic racism, oppression and intersectionality.”

In an unusually pointed opinion, Walker trashed many of Florida’s defenses of the “Stop Woke Act.” In addition to ruling that the law was a clear violation of the First Amendment, Walker also said it violated the plaintiffs’ Fourteenth Amendment right to due process.

“It was a very strong decision and laid out very clearly this is a very blatant violation of the Constitution,” said the lead counsel for the defendants, Shalini Agarwal, who also works with the nonpartisan civic group Protect Democracy.

At the root of the 44-page ruling is Walker’s skepticism that the state of Florida should get to decide what employees may find to be objectionable. He said the state had vague interpretations for the eight provisions of the law, including those that addressed what may cause someone to feel discomfort or anguish in the workplace.

“Even the slightest endorsement of any of the eight concepts at any required employment activity violates the statute,” Walker noted. “The [Individual Freedom Measure] requires no evidence that the statement be even subjectively offensive. Nor does the IFA require that the statement create a severely or pervasively hostile work environment.”

“Thus, the IFA, by design” Walker added, “provides no shelter for core protected speech.”

At one point, Walker suggested that the law appeared to be an attempt by Florida lawmakers to silence the voices of those who may challenge lawmakers’ own views about the nation’s diversity.

“If Florida truly believes we live in a post-racial society, then let it make its case,” Walker wrote. “But it cannot win the argument by muzzling its opponents.”

The first section of the law limits from lessons and trainings the notion that “members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.” Walker said the provision was “mired in obscurity.”

“Imagine an employer, during a mandatory seminar on dispute resolution, cites the civil disobedience exemplified by Martin Luther King Jr. and Mahatma Gandhi as a peaceful, preferred approach,” Walker wrote. “Has that employer ‘inculcated’ employees with the belief that Black and Asian people are morally superior to White people?”

Walker decried another provision of the law, saying it was “bordering on unintelligible.” The provision states “[m]embers of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.”

“It is unclear what is prohibited, and even less clear what is permitted,” Walker wrote.

Agarwal said the state must now decide whether it will seek a District Court trial to try to reverse Walker’s injunction. The state could also appeal his ruling to the Eleventh Circuit Court of Appeals. Florida could also drop its legal defense of the matter.

Although Walker’s ruling does not apply to the law’s implementation in public schools or colleges, Agarwal and other lawyers said they believe all sections of the measure are on shaky legal footing.

In its lawsuit seeking to block the law from taking effect at colleges and universities, attorneys for the ACLU argued that the law’s “vague terms and private enforcement mechanism chill speech and expression including the narrowing of campus discourse and gutting [of] academic freedom.”

‘The Stop W.O.K.E. act attempts to censor discussions and erase the history and life experiences of Black people, LGBTQ folks, women, and other people of color who struggle on a daily basis to achieve racial justice and make a positive change,” said Leroy Pernell, a plaintiff in the suit who teaches law at Florida A&M University College of Law “We deserve to have free and open exchanges about racism in the classroom.”

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