Among the many laws taking effect on Friday, Florida’s “Stop WOKE Act” may be among the most contentious with the possibility of multiple litigations arising to challenge its constitutionality.
“Critics are going to challenge it because they take the position that it restricts speech in an unconstitutional way,” said News 6 legal analyst attorney Steve Kramer. “The state’s position is that it may restrict speech, but it restricts speech in a limited context for a state employee in a state job with a state paycheck and therefore they don’t have that right to speech in that position. That doesn’t restrict what they can say outside of the classroom only what they can do in the classroom.”
“Stop WOKE,” also known as HB 7, provides several restrictions on how concepts are taught in a public school setting. The law states that a curriculum cannot include concepts such as that anyone is “privileged or oppressed” based solely on “their race, color, sex, or national origin” or that anyone is “inherently racist, sexist, or oppressive, whether consciously or unconsciously,” by virtue of “their race, color, sex, or national origin.”
According to Kramer, some teachers have already attempted to stop HB 7 from taking effect; however, that court case was ultimately thrown out.
“Teachers have made allegations in court and tried to assert that this would cause direct harm,” Kramer said. “The federal judge who heard the case denied the request. Basically, the judge said the allegations were too far removed from direct harm — that there were multiple levels that had and multiple events that had to occur before teachers would actually be on the hook.”
Kramer explained that the law does not target teachers directly but rather targets funding for the schools.
“The logic goes like this — pursuant to statutory authority Board of Education withholds funding from teachers’ schools if they violate the challenged provisions,” he said. “If the school board then withholds money from teachers in individual schools to put pressure on those schools and then, hypothetically, the pressure at those schools is there to discipline the teachers. And because it’s so far removed from direct teacher harm, the judge basically said, ‘That’s multiple layers of inference.’”
Essentially, Kramer said the law focuses more on funding for schools than direct damage to the teachers.
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Despite the fact that the federal judge refused to stop the new law from going into effect, Kramer points out that it is still likely to face legal challenges.
“You’re still gonna see an argument that the law is unconstitutional based on the first amendment,” he said. “That it is either kind of unconstitutionally vague or overbroad in that it may restrict speech. Again, the state actually has a pretty good argument there, which is basically the speech that is being regulated is state speech. It’s state curriculum and it’s speech that’s in a state facility, in a state job with a state paycheck, and that the state is within their discretion to limit that speech and limit that curriculum.”
However, Kramer added that legal challenges will also depend on how the law is used, as it has not yet taken effect.
“We have not seen how this law has functioned in application. You may still see challenges to this law based on how it is actually applied,” he said.
Kramer said that there is “potential here for even teachers trying to take a position that’s in line with the law and still running afoul of it.”
“How do you teach that slavery happened and existed, was the cause of the Civil War — or a factor, however you want to frame it. How do you teach that without running afoul of this? And that is a political hot potato as well,” Kramer said.
The attorney added that extracurricular activities that take place on campus, in particular, could pose legal issues for HB 7. Kramer posed a hypothetical about such an issue.
“Teachers and students get together and they’re called the woke club, they’re the anti-racist club — you could call it whatever you want — but you talk about these topics that are specifically regulated. I’m not clear on what would happen there. I think that’s where teachers are more likely to prevail,” he said.
Kramer cited Monday’s Supreme Court ruling in which the justices sided with a football coach who prayed on the 50-yard line after games. The high court said, in that case, the school district had violated the coach’s right to private speech by ordering him to stop his prayers after games.
“(If) students want to discuss stuff that’s not part of the curriculum, that’s within their purview. If the state attempts to regulate that type of speech, then the state’s gonna have more problems. So that’s where you could see the law as applied being challenged.”
You can read the text of HB 7 below: