Pernell v. Lamb

Florida is one of several states in the U.S. that have enacted laws designed to censor discussions related to race and gender in the educational setting. Florida House Bill (HB) 7—also known as the Stop Wrongs to Our Kids and Employees Act (“Stop W.O.K.E. Act”) unconstitutionally prohibits viewpoints that acknowledge systemic inequality and emphasize the importance of diversity, equity, and inclusion in university classrooms. As such, it restricts educators, including professors and teaching assistants, from advocating for certain “woke” concepts, while simultaneously allowing them to criticize these ideas. Consequently, the Stop W.O.K.E. Act limits students’ exposure to important discussions on issues such as privilege, colorblindness, racism, and sexism.

Facts

Contrary to the Florida State University System’s commitment to free expression, Governor Ron DeSantis enacted the Stop W.O.K.E. Act on April 22, 2022. Section 2(4)(a) of the Stop W.O.K.E. Act provides that it “shall constitute discrimination” to subject a student to instruction that “espouses, promotes, advances, inculcates, or compels such student” to believe any of eight enumerated concepts: including that a person’s status as “either privileged or oppressed is necessarily determined by his or her race, color, national origin, or sex” and that “[such] virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist.”

The Act allows an “aggrieved” person to pursue a private right of action, including fees, for any alleged violation. The Act also gives the Florida Board of Governors the power to declare universities and colleges ineligible for competitive state grants for noncompliance. Upon the Stop W.O.K.E. Act becoming law on July 1, 2022, the Florida Board of Governors proposed a new regulation. If the Board determines an instructor violated the Act, the Board is mandated to correct the violation, issue disciplinary measures if necessary, and terminate the responsible employees if they fail to comply. Essentially, instructors could be fired for expressing viewpoints disfavored by the legislature.

The Boards of Trustees at each university within the State University System of Florida have the responsibility of ensuring compliance with the Stop W.O.K.E. Act on their campuses. Instructors, including the plaintiffs, fear they could be penalized for teaching widely accepted and research-supported foundational principles such as implicit bias, privilege, or inequity.

For decades, law enforcement agencies in Florida have deemed training on human diversity and implicit biases essential for preparing officers to serve, especially in diverse communities. In Florida, such training has been mandated for over 30 years, requiring both new recruits and veteran officers to develop “interpersonal skills” with an emphasis on cultural differences.

Florida’s law enforcement agencies heavily depend on state higher education institutions for training both future and current officers. Anyone seeking to become a law enforcement officer in Florida must complete a “basic recruit training program,” and most of these programs are delivered by Florida’s public higher learning institutions. Out of Florida’s approximately 367 local law enforcement agencies, only a few have their own training academies. The majority rely on 31 regional training academies situated in community colleges, junior colleges, or vocational or technical institutions.

Legal Background

First Amendment (viewpoint-based discrimination): The Stop W.O.K.E. Act violates the First Amendment of the United States Constitution because it imposes viewpoint-based restrictions on instructors and students in higher education. These restrictions infringe upon the freedom of expression and speech that are guaranteed by the First Amendment and apply to all public universities.

Fourteenth Amendment (void-for-vagueness): The Fourteenth Amendment guarantees due process, which prohibits laws that are too vague to understand. The Stop W.O.K.E. Act includes ambiguous language, which leaves the government with excessive discretion to decide whether an instructor has violated the law. This discretion might be applied in a viewpoint-based way, violating due process.

Fourteenth Amendment (Equal Protection Clause): The Equal Protection Clause of the Fourteenth Amendment states that any official action taken with the purpose of discriminating on account of race is illegitimate under the Constitution. The Act is claimed to have been enacted, at least partially, with the intention of discriminating against Black instructors and students by limiting their speech about race and inequality. The law explicitly targets concepts related to race and racism, which would disproportionately impact Black instructors, who are more likely to teach on these topics, and Black students, who are more likely to benefit from these discussions. This would also potentially expose Black students and other students of color to increased harassment and discrimination.

Proceedings

In August 2022, a diverse group of educators and a student from colleges and universities across Florida filed a lawsuit in the United States District Court for the Northern District of Florida against the Stop W.O.K.E. Act. They claimed that the Act violated the First and Fourteenth Amendments of the United States Constitution, as it discriminated on the basis of viewpoint and was unconstitutionally vague. They further contended that the law violated the Equal Protection Clause as it was enacted with a racially discriminatory purpose and would disproportionately impact Black educators and students. They also requested an injunction to prevent the enforcement of the Act within higher education

On November 17, the Florida district court sided with the educators and partially granted their motion for a preliminary injunction. The court referred to the law as “positively dystopian,” stating, “[i]f liberty means anything at all, it means the right to tell people what they do not want to hear.” The court affirmed that the law indeed prohibited professors from expressing certain disfavored viewpoints in university classrooms while allowing the unrestricted expression of opposing viewpoints.  It also ruled that the Act’s terms were unconstitutionally vague, and the factors that permit a preliminary injunction were in favor of the educators. Within two weeks of this ruling, the Florida Board of Governors appealed against the injunction at the United States Court of Appeals for the Eleventh Circuit.

On March 16, 2023, the Eleventh Circuit kept the preliminary injunction issued by the lower court in effect until it could issue a decision on the merits of the injunction.

Open Society Justice Initiative Involvement

The Justice Initiative filed an amicus curiae brief in the case before the United States Court of Appeals for the Eleventh Circuit on behalf of policing and criminal justice organizations and scholars. It argues that the district court did not abuse its discretion in preliminarily enjoining the Act, including because of the adverse effects it would have on Florida law enforcement’s ability to carry out its mission.

Arguments

Educating and training law enforcement on human diversity and implicit biases improve their ability to fulfill their mission, as Florida has long recognized.

Obtaining community trust and legitimacy requires treating individuals of that community with dignity and respect, understanding the negative impacts of explicit and implicit bias on police-community relations, and proactively putting in place a comprehensive system that prevents discrimination, including by educating and training officers on how to recognize and mitigate biases at all levels.

The job of law enforcement is a dangerous one: police are expected to run toward danger, and they are also equipped and empowered to use deadly force, in limited circumstances. Additionally, the history of law enforcement in Florida and the United States more generally is replete with patterns of bias and discrimination that have undermined community trust and legitimacy.

Thus, the role and reality of law enforcement in the United States—particularly in states as diverse as Florida—demand educating and training officers on the real-world challenges of building trust and legitimacy with diverse communities and promoting fair and unbiased policing. Reflecting these challenges, nearly all law enforcement agencies in the United States now incorporate to some degree education and training on issues of diversity and implicit bias.

Training on implicit bias, now a common practice in areas like Florida, enhances officers’ comprehension of common biases, awareness of their personal biases, and understanding of how biases influence decision-making. In fact, the State of Florida recognized the need for diversity initiatives and training in the law enforcement context more than 30 years ago. In 1991, its Legislature directed the Criminal Justice Standards and Training Commission (“the Commission”)—which certifies law enforcement officers in Florida—to develop mandatory training and retraining focused on “interpersonal skills relating to racial and ethnic minorities,[…] with an emphasis on the awareness of cultural differences.” The Legislature also established the Florida Criminal Justice Executive Institute to identify and address training needs in racially and ethnically sensitive areas, for the purpose of improving law enforcement interaction and intervention. These mandates remain active today.

The preliminary injunction serves the public interest because the Act undermines the ability of law enforcement across Florida to fulfill its critical mission of protecting the public.

The district court’s decision to preliminarily enjoin the Act is not an abuse of discretion as it potentially undermines Florida law enforcement’s capacity to fulfill its public safety mission. Florida’s law enforcement heavily relies on state higher educational institutions for the education and training of both aspiring and current officers. The Act puts these law enforcement agencies, executives, and instructors in a paradoxical position where they are expected to provide diversity-focused training—as mandated by Florida law—while also avoiding content that could violate the Act’s prohibitions.

The Act’s ambiguities could suppress essential elements of modern law enforcement training such as instruction on implicit bias and the benefits of a diverse police force. The Act may also deter discussions around the experiences of marginalized communities and the historical relationship with law enforcement. The district court’s correct judgment that the Act would chill covered concepts supports the assertion that it hampers educators’ ability to prepare students for law enforcement careers. This deprives agencies and communities of the benefits of comprehensive training. Consequently, without the injunction, Florida’s police officers would be notably less prepared for their roles, making them and their communities notably less safe. The prevention of this is clearly in the public interest.