Tracking the Stop W.O.K.E Act

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Since the creation of Critical Race theory in the 1970’s and 80’s, there has been opposition to the theory's ideas and its ever growing presence in classrooms.

The NAACP Legal Defense Fund describes CRT as follows:

“Critical race theory, or CRT, is an academic and legal framework that denotes that systemic racism is part of American society — from education and housing to employment and healthcare. Critical race theory recognizes that racism is more than the result of individual bias and prejudice. It is embedded in laws, policies and institutions that uphold and reproduce racial inequalities.”

These ideas are banned from being taught in 18 states, through legislation or other means. However, censorship of race theory is often vague and it is difficult for administrators and educators to discern what is permitted by the state's laws. On April 22, 2022, Florida’s Governor Ron DeSanistis signed into law the “Stop W.O.K.E Act”, which was designed to remedy some of the confusion felt by school administrators. The law is effectively a broad ban on the discussion of race in state schools and the workplace. The acronym W.O.K.E. stands for “Wrongs to Our Kids and Employees Act”, referencing the bill's intent to prevent institutions from promoting ideas that might make employees or students of a certain race feel unwarrantedly guilty for past actions by their race. The bill applies to Florida’s K-12 schools as well as higher education public institutions and all workplaces in the state – one of the most sweeping bans of its kind in the country.

On April 22, 2022, shortly after DeSantis signed the bill into law, educators and parents of a rising Kindergartener filed a lawsuit, Falls v DeSantis, in Federal court questioning the constitutionality of the law. The lawsuit argues that the state’s ban on instruction on critical race theory isn’t “narrowly tailored to meet a compelling state interest,” and it’s “explicitly designed to target and suppress ideas with which GOP lawmakers disagree.” The lawsuit also argues that “these broad principles are subject to various interpretations and allow the State to arbitrarily decide what speech is prohibited and what speech is permitted.” Organizations, like the SPLC and Protect Democracy have filed amicus briefs approximately a month later articulating these concerns with the new law. Plaintiffs moved for a preliminary injunction, which was denied in part by 11th Circuit Federal Judge Mark E. Walker due to the plaintiffs failure to establish standing to pursue preliminary injunctive relief.

However, on August 18, 2022, in a separate lawsuit filed by Florida based companies, Honeyfund.com, Primo Partners, as well as a diversity consultant Collective Concepts, Judge Walker blocked a provision of the act that was aimed at private businesses. The stricken provision had prevented private businesses from discussing institutional racism during diversity training. That portion of the act broadly prohibited private businesses' discussion of race, gender, and social issues, essentially banning private businesses from actively fostering a more inclusive work environment. Plaintiffs argue that the act’s provision is an infringement on the First Amendment’s free exercise clause. However, Florida argues that the act actually protects free speech by preventing a hostile work environment. Defendants argue that diversity training targets certain races to make them feel guilty for past actions or decisions. Under Title VII of the 1964 Civil Rights Act which states that employees and job applicants are protected from discrimination based on race, gender, or sexuality, the Stop W.O.K.E act is legal. In his preliminary injunction, Judge Walker argues that the law is overly broad and targets specific ideas presented during the mandatory diversity training rather than the fact that the diversity training is mandatory.

Judge Walker also issued a preliminary injunction at the request of the ACLU, ACLU of Florida, Legal Defense Fund and Ballard Spahr, who filed a lawsuit challenging Florida’s H.B 7 on August 18, 2022. Plaintiffs argue that the bill violates the First and 14th Amendments since it imposes view-point based restrictions that target students and educators in higher education. The lawsuit also argues that the bill violates the Equal Protection Clause because H.B 7 will disproportionately affect black students and educators due to the fact that it was enacted with racially discriminatory intent. Judge Walker granted the preliminary injunction, prohibiting the bill from being enforced at higher education institutions. Although defendants appealed this ruling, the Eleventh Circuit Court of Appeals left the preliminary injunction in place, which was a major victory for students and professors learning and teaching at Florida institutions of higher education.

However, it is easy to imagine a situation in which Judge Walker didn't grant preliminary injunctions of the bill. Additionally, there is no saying that these preliminary injunctions will continue to be effective in banning provisions of the bill from implementation. States' ability to impose targeted bans on what can be discussed in the workplace and schools is a scary concept. So far, 20 out of 50 states have enacted bills that censor learning in some way. It is crucial that the next generation of students have equitable access to the uncensored version of the United State’s history – a history that doesn’t overlook the discrimination and lived experiences against people of color. This bill, as the SPLC’s amicus brief points out, “will and has already interfered with the ability of students to obtain true and accurate information about the history of their society.” State Senator Bobby Powell Jr. points out how “almost 30 years ago, Florida lawmakers passed a law that requires public school students to be taught the history of African Americans, including slavery, abolition, and the contributions of Blacks to society.” Now, these topics are taboo in Florida’s classroom. There are crucial points in United States history when society and government need to come together to combat ignorance and prejudice. The implementation of these bills puts us at another turning point where we as a society need to decide the value we place on expanding perspectives and promoting social justice through education and discussion. The abundance of legal action against the Stop W.O.K.E Act is an indicator of where US society has evolved to, but will the courts rule that the Constitution agrees with society?

Jacqueline Metzler is a Freshman at Brown University. She is a staff writer for the Brown Undergraduate Law Review and can be contacted at jacqueline_metzler@brown.edu.