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Social marginalization and the repression of civil rights are not new features of American society. Over the course of history, minority groups have been adversely affected by discrimination stemming from decades of oppression. As the country is increasingly divided by culture wars and political polarization, debates surrounding social issues have entered a new era, marked by the increasing usage of the law as a mechanism to strip away fundamental protections from minorities. The foundations of this political fight were written into law on March 28, 2022, when Florida Governor Ron DeSantis signed House Bill 1557: Parental Rights in Education, dubbed the “Don’t Say Gay” bill by its opponents. Behind the rhetoric and political fervor displayed by both sides of the aisle lie significant legal disputes in courtrooms, with arguments challenging the constitutionality of Florida’s new education laws.

Background 

The Parental Rights in Education law “prohibits classroom discussion about sexual orientation or gender identity” from kindergarten through third grade; however, the Florida Board of Education has unanimously voted to extend these restrictions through twelfth grade in late April of this year. The legislation was passed to “reinforce the fundamental right of parents” to make decisions regarding their children’s upbringing and to have more control over state curriculum in schools. 

Florida House Republicans have supported the bill, claiming that it uproots indoctrination out of state classrooms, most of which they argue has been spearheaded by left-leaning movements to increase LGBTQ+ awareness in schools. Social issues are spurring controversy and political upheaval across party lines, and Florida’s Parental Rights Bill reflects the ongoing influence of divisive political ideology on the law. In particular, the recent emergence of disputes regarding ‘woke ideology,’ embraced by many of today’s politicians, underpins the new legislation and is at the forefront of recent Floridian policymaking. Legal analysts argue that DeSantis is using the law to advance his own personal agenda in unconstitutional ways: His so-called “War on Woke” is no longer merely a matter of red-versus-blue politics, but an issue of legality, as Florida’s state laws have overstepped constitutional boundaries. 

Analyzing the Terminology of the Law: Unconstitutional Vagueness 

The vagueness doctrine of the due process clauses in the Fifth and Fourteenth Amendments, enforceable according to 42 U.S. Code § 1983, aims to prevent arbitrary enforcement of laws, deeming equivocal legislation unconstitutional. Specifically, this lack of clarity is seen in the absence of defined statements about what constitutes “instruction” or “discussion” in classrooms, causing the law to have a broad scope with no explicit bounds. Consequently, impreciseness about what is deemed ‘appropriate’ discussion has led to substantial confusion among educators who are struggling to navigate the new law. Without these explicit definitions about the law’s parameters, the categorization of school discussion remains up to personal interpretation, leading to not only difficulties in the enforcement of the law, but also hindered free speech and expression as ambiguity leads to complete self-censorship. Concerns about First Amendment violations have thus arisen as teachers erase all speech regarding sexual orientation and gender identity in order to avoid coming into conflict with the law.

Such objective interpretation inevitably leads to an arbitrary application of the law. One may argue that the vagueness of the law directly coincides with the Florida government’s attempt to subtly silence discussions related explicitly to LGBTQ+ individuals. Although the ambiguity of “sexual orientation” in HB 1557 fails to specify what kind of sexual orientation discussion is prohibited, with the current political climate, a homosexual individual is undoubtedly more likely to engage in self-censorship than a heterosexual individual. That being the case, the law’s immense vagueness enables LGBTQ+ censorship, having chilling ramifications across the board for minorities as their First Amendment right to freedom of expression is severely limited. 

Lawsuits 

Several lawsuits have flooded courtrooms as Floridian advocacy groups, educators, and families grapple with this new reality settling into their classrooms. One of these lawsuits is the case of Cousins et al. v. The School Board of Orange County et al., which details the unconstitutional vagueness of HB 1557. Count III of the court filing states that a law is unconstitutionally vague if it fails to “provide fair notice of what is prohibited” or the lack of explicit definitions “authorizes or encourages arbitrary and discriminatory enforcement.” The suit continues by saying that in cases where First Amendment freedoms are concerned, a stricter vagueness test is required to “ensure the ambiguity does not chill protected speech.” 

The Southern Poverty Law Center, representing the plaintiffs in this case, therefore concludes that HB 1557 is “void for vagueness because it chills Plaintiff’s constitutionally protected right to free speech, provides inadequate notice of the conduct it purports to prohibit and authorizes or encourages arbitrary and discriminatory enforcement…” As a result, the statutory vagueness in HB 1557 has created unclear guidelines about its proper application, leading to the law being broadly applied through subjective and prejudicial interpretation in an unconstitutional manner. 

A legal precedent to the Cousins case can be seen in Keyishian v. Board of Regents of the University of State of New York, where the Supreme Court ruled that ambiguous provisions violate First Amendment rights. Stating an interest in making the education system “as free and open as possible,” the Court ruled that vague regulatory policies threaten an ideal classroom environment. As the Keyishian case set an important precedent regarding the threat of vague language in the law, it proves that obscurity in legislation leads to unconstitutional enforcement and even creates an opportunity for discriminatory erasure of students in educational discourse. 

The First Amendment: Academic Freedom and Censorship  

The argument surrounding the unconstitutionality of Florida’s education law is further supported by the importance of open classroom discussions to achieve academic freedom. Education is a powerful tool to amplify youth voices, and schools play a critical role in strengthening democratic ideals through healthy debate and civil discourse, all of which are values deeply rooted in the First Amendment. Therefore, the freedom to speak freely and openly in a class setting is a concept directly protected by the U.S. Constitution, and any law that attempts to strip away these protections without a “compelling governmental interest,” as enforced by the strict scrutiny test, is unconstitutional. 

Due to the pedagogical restrictions that the Parental Rights in Education law places on educators, this legislative effort can be classified as an educational gag order. Florida’s ongoing war on education has imminent dangers in dismantling the democratic climate that is the core of America’s educational institutions, hindering the freedom of educational curiosity, limiting the free flow of ideas, and diminishing minority student voices and their representation. The First Amendment’s protection of free speech is directly violated when the government deploys ideological control to establish the norms of classrooms. 

Citing the importance of free speech in classrooms, PEN America filed an amicus brief in the case of Pernell v. Lamb, claiming that the “robust exchange of ideas” is “foundational to our education system and our democracy” and that restricting expression in the classroom is “incompatible with the First Amendment.” The brief asserts that free discourse in educational institutions is the basis for constitutional protection of student and educator rights, arguing that HB 1557 directly violates these First Amendment rights and constitutional principles. 

Additionally, just days after the passage of the law, the non-profit civil rights advocacy group Equality Florida filed a lawsuit in Equality Florida, Family Equality, et al. v. DeSantis challenging the law. The case cites Stanley v. Georgia, which found that the Constitution “protects the right to receive information and ideas.” The case discusses how HB 1557 directly violates this constitutional right as it criminalizes certain aspects of education by rendering sexuality and gender education obsolete. This censorship constrains the information students receive and limits their academic freedom and expression. 

HB 1557’s challenge on academic freedom is not a new occurrence in the realm of law. The Supreme Court has heard numerous cases concerning First Amendment violations in classrooms, many of which are cited as precedents in cases related to HB 1557. One of the hallmark Supreme Court cases concerning First Amendment rights is Tinker v. Des Moines, which ruled that students do not “shed their constitutional rights at the schoolhouse gate,” establishing the grounds for student free speech rights. 

In another case, Sweezy v. New Hampshire, Chief Justice Earl Warren, referencing the First Amendment, issued the plurality opinion that the “essentiality of freedom in the community of American universities is almost self-evident” and that “teachers and students must always remain free to inquire, to study and to evaluate…” This ruling indicates that the ability of American schools to provide quality education depends on a free environment where students have the freedom to engage in the full scope of academia without governmental interference. 

Viewpoint Discrimination and Violation of the Fourteenth Amendment 

The Florida government’s stated interest in its recent legislation is to “fight back against woke indoctrination.” With such wording, others have claimed that the bill’s motive is to censor certain viewpoints ideologically. Specifically, the director of Free Expression and Education Programs at PEN America argued that the bill is an effort to “exert ideological control over public education” and “suppress stories about and expression by LGBTQ+ people.” However, the Supreme Court has repeatedly ruled that viewpoint discrimination violates the First Amendment. In Rosenberger v. Rector and Visitors of the University of Virginia, the Court held that “discrimination against speech because of its message is presumed to be unconstitutional” and that “viewpoint discrimination is an egregious form of content discrimination.” 

The Court, therefore, has established that the government must not regulate speech when the rationale for the restriction is the ideology or opinion of the legislator. Such precedent demonstrates that suppressing sexuality and gender discussion solely because it does not align with the governor’s political beliefs violates the Constitution. The law not only attempts to undermine constitutional legislation in state governments but also prohibits students from engaging in diverse discourse, which the First Amendment was written to protect. 

Furthermore, the law creates differential experiences for LGBTQ+ students in the classroom. The plaintiffs in the Cousins case argue that HB 1557 violates the Equal Protection Clause of the Fourteenth Amendment by “discriminating against educators and families based on sex, sexual orientation, gender identity, and transgender status.” Through this violation, the suit claims that HB 1557 has severe complications regarding the protection of LGBTQ+ students, as the language of the law creates a “culture of silence and non-acceptance” in classrooms, causing minority individuals to be viewed as inferior and stigmatized, thus denying them of equal status and opportunities in schools. 

Why It Matters 

As the Parental Rights in Education bill/law takes effect, the rights of students are constrained and the state government sends the message that particular identities should be left out of classrooms. Using the law in such a way is not only threatening to the mental and emotional health of youth, but it creates a frightening case of unconstitutional legislation and threatens democracy. 

Suppressing voices, particularly those of minority groups, is a dangerous element of democratic backsliding, in which a constitutional democracy is undermined by state-led attempts to diminish fundamental constitutional rights. With the reinforcement of civil rights serving as a basic principle in the safeguarding of a democracy, HB 1557’s attempt to silence minorities is a direct threat of constitutional retrogression, in which incremental democratic erosion subtly undermines the protections guaranteed by the Constitution. The use of legal tactics rather than overt violence to silence opposition voices is a strategic action seen in hybrid regimes and stealth authoritarianism globally, revealing DeSantis’s steps to intersect politics dangerously undermine democracy and constitutionalism. DeSantis has applied some of the traditional authoritarian models of governance, encouraging silence and censorship through legislation. The weaponization of Florida law to drive cultural and societal shifts in civic discourse has brought the United States into the emerging threatening patterns of global democratic decay.