Federal judge allows educators, student to challenge Florida's law restricting race instruction

A federal judge Friday ruled a university professor, two teachers and a student can move forward with a challenge to a new Florida law that restricts the way race-related concepts can be taught in classrooms and workplace training.

Chief U.S. District Judge Mark Walker rejected parts of a request by the state to dismiss a constitutional challenge to the law — dubbed by Gov. Ron DeSantis as the "Stop WOKE Act."

Walker, however, agreed to dismiss claims by the president of a consulting firm that provides diversity training and dismiss DeSantis as a defendant.

In the 23-page ruling, he allowed Robert Cassanello, an associate history professor at the University of Central Florida, to pursue claims against the state university system’s Board of Governors. He also allowed teachers Donald Falls and Jill Harper and an incoming kindergarten student identified by the initials RMJ to pursue claims against the State Board of Education.

The plaintiffs filed the lawsuit April 22 after DeSantis signed the law (HB 7), arguing that it violated First Amendment rights and was unconstitutionally vague. They also challenged rules approved last year by the State Board of Education that included banning the use of critical race theory, which is based on the premise that racism is embedded in American society and institutions.

Walker on June 27 rejected requests by the teachers, student and consultant Tammy Hodo for a preliminary injunction to block the law from taking effect July 1. He did not rule on an injunction request by Cassanello, ordering attorneys to file additional briefs. Denial of a preliminary injunction does not end an overall lawsuit.

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The state’s motion to dismiss the case focused heavily on whether the plaintiffs had legal standing to challenge the law. Lawyers for the state argued, in part, that the plaintiffs could not show they had suffered an "injury" from the law.

In Friday’s ruling, Walker acknowledged plaintiffs had established standing at this stage in the case by the "thinnest of reeds."

"To survive further stages of this litigation with more demanding burdens of proof, plaintiffs must supplement the record with evidence supporting standing as this case progresses," he wrote in a footnote.

But Walker gave detailed explanations about standing for each of the plaintiffs. As an example, he pushed back against arguments by the state that Cassanello, Falls and Harper lacked standing because the Board of Governors and State Board of Education could not directly punish them for violating the law.

"Without question, a defendant can chill speech even if it lacks the power to punish," Walker wrote. "For example, a defendant could threaten to refer the plaintiff to an entity that has the power to punish the plaintiff. Or a defendant could imply that they will use their official powers — whatever they may be — to retaliate against the plaintiff for speaking. Thus, while defendants raise a relevant consideration, the boards’ lack of authority to directly punish is hardly decisive. At this stage, that makes all the difference. The teachers allege that the boards can pressure their institutions to punish them for speaking. At the motion to dismiss stage, that’s enough."

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Walker, however, agreed with the state’s standing arguments involving Hodo, president of the consulting firm All Things Diverse.

"In her complaint and declaration, plaintiff Hodo has only referenced past clients, and hypothetical future clients, without alleging that she presently has clients impacted by the law," he wrote.

The law, which was heavily debated during this year’s legislative session, lists a series of race-related concepts that would constitute discrimination if taught in classrooms or in required workplace-training programs.

As an example, part of the law labels instruction discriminatory if it leads people to believe that they bear "responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin or sex."

As another example, the law seeks to prohibit instruction that would cause students to "feel guilt, anguish or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin or sex."

Three businesses have filed a separate constitutional challenge to the law. That case also is pending before Walker.