Reply To: FL students stage mass walkouts over ‘Don’t Say Gay’ Bill

  • outdoorsguy

    April 26, 2022 at 11:14 am
  • Florida Parents file Lawsuit Against “Don’t Say Gay Bill”

    In a complaint filed Thursday in Tallahassee federal court, students, parents, a teacher and advocacy group Equality Florida called the Republican-backed law, dubbed the “don’t say gay” bill by opponents, “offensive and unconstitutional” and asked the court to block its enforcement.

    Their counsel includes well-known lawyer Roberta Kaplan, who mounted a successful challenge before the U.S. Supreme Court to part of the Defense of Marriage Act banning gay marriage in United States v. Windsor.

    The bill was signed by DeSantis on Tuesday and is set to take effect in July. It bars classroom instruction on sexual orientation or gender identity for children in kindergarten through third grade, or from about ages 5-9, in public schools.

    It also prohibits such teaching that “is not age appropriate or developmentally appropriate” for students in other grades. Parents will be allowed to sue school districts they believe to be in violation.

    The plaintiffs in the lawsuit said the law runs afoul of students’ First Amendment right to receive information and ideas. They also said the law is unconstitutionally vague, failing to define what discussion is and is not allowed in schools, and that it will have the effect of discriminating against lesbian, gay, bisexual, transgender and queer (LGBTQ) students.

    “Presented with vague prohibitions under the threat of litigation, schools and educators will be chilled from discussing or even referencing LGBTQ people, and LGBTQ students will be stigmatized, ostracized and denied the educational opportunities that their non-LGBTQ peers receive,” the complaint said.

    DeSantis, who is seeking reelection this year and is widely expected to be a candidate for president in 2024, has joined other Republicans nationwide in calling for parents to have more control of what young children learn in school.

    The new law has drawn harsh criticism, including from Democratic President Joe Biden, who has called it “hateful.”

    The case is Equality Florida et al v. DeSantis et al, U.S. District Court, Northern District of Florida, No. 4:22-cv-00134.

    Constitutional Issues?

    The opposition to these efforts is fueled by indignation at what they perceive as the sheer meanness of these bills. But opponents also make a constitutional argument. They contend that muzzling classroom speech of teachers may run afoul of the First Amendment.

    When it comes to teachers in public schools, however, this is not a black-and-white issue. Public school teachers have limited First Amendment rights. School districts make the decision on curricula, and teachers must follow it. Therefore, the argument that the bills are posing unconstitutional limits on public school teachers may not hold up because teachers are already limited in what they can say.

    But as Clay Calvert, the director of the Marion B. Brechner First Amendment Project at the University of Florida, told Changing America, the “Don’t Say Gay” law could have a “chilling effect.” Teachers may be inclined to censor themselves for fear of retribution by parents who might even sue.

    Students Have Power

    But this does not mean there is not a constitutional issue involved with laws like the “Don’t Say Gay” bill. The issue is the free-speech rights of the students.

    In 1969, the U.S. Supreme Court made it abundantly clear in Tinker v. Des Moines School Dist. that students of every age have First Amendment rights. Calvert says that means students have the right to sue if their discussions or questions about sexual identity are stifled.

    “You can imagine a child who is questioning their sexual orientation at a young age and then being shut down by a teacher who says, ‘Well, by law, unfortunately, we can’t encourage discussion of this,’” Calvert said.

    “It’s a complex issue because it really is about how much a state legislative body can do to limit speech and limit expression in the classroom,” he added.

    In other words, when DeSantis signs the “Don’t Say Gay” bill into law, look for an immediate constitutional challenge.