August 26, 2022 | Scott Cole
On August 18, Mark Walker, Chief United States District Judge of the U.S. District Court for the Northern District of Florida, issued a Preliminary Injunction blocking enforcement of Florida’s Individual Freedom Act (IFA), known by some as the “Stop WOKE Act.” The plaintiffs who filed the lawsuit are two employers who intend to conduct mandatory employee training on some of the topics banned by the IFA and two consulting firms that conduct training on those topics.
The IFA makes the following acts an unlawful employment practice under state law:
Subjecting any individual, as a condition of employment, membership, certification, licensing, credentialing, or passing an examination, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin under this section.
The statute lists the following eight prohibited concepts:
1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
3. An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.
4. Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.
5. An individual, by virtue of his or her race, color, sex, or national origin, bears 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, sex, or national origin.
6. An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
7. An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin.
8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.
The plaintiffs named as defendants Governor Ron DeSantis, Attorney General Ashley Moody, and the individual commissioners of the Florida Commission on Human Relations. The court found the plaintiffs had standing to seek injunctive relief against the Attorney General and Commissioners, as they have the legal authority under the IFA to enforce the statute, but not against Governor DeSantis, who does not have that authority.
The plaintiffs claimed the IFA violates the First Amendment of the U.S. Constitution as it constitutes a viewpoint-based restriction on their speech. The defendants argued:
1. The IFA only restricts conduct, not speech, so it is permissible under the First Amendment;
2. Even if it does restrict speech, it does so only incidentally to regulating conduct;
3. Even if it directly regulates speech, it should be analyzed under an intermediate scrutiny standard; and
4. If not, the court must find it meets the strict scrutiny standard because finding otherwise would make Title VII unconstitutional as well.
As to the first defense, the court found that the IFA directly regulates speech, not conduct. It noted the law only bans training that endorses certain concepts. Training that rejects or takes no position on those same concepts is allowed. In other words, the only way to determine if there is a violation of the statute is to look at the viewpoint expressed in the training. The court found this is a restriction directly on speech in violation of the First Amendment.
The defendants then argued that even if the IFA burdens speech, it does so only incidental to its regulation of conduct, which is permissible under the First Amendment. The court rejected this argument, finding that the IFA does not regulate mandatory training in general (the conduct) but only training that endorses the prohibited concepts. Therefore it directly regulates speech.
Furthermore, the court rejected the argument that the IFA need only meet the intermediate scrutiny standard of review (there is a rational basis for the law’s restrictions on speech). The court found that because the IFA targets only those viewpoints to which the state disagrees, it must be analyzed under the strict scrutiny standard, meaning the law is narrowly tailored to serve a compelling state interest.
Finally, the court distinguished the IFA from Title VII because the latter does not regulate speech. Instead, it targets discriminatory conduct by employers that affects compensation and terms, conditions or privileges of employment. Therefore, it only incidentally burdens speech.
Having found the law is subject to a strict scrutiny review, the court then addressed whether the IFA is narrowly tailored to serve a compelling state interest. The court rejected the defendant’s argument that it prevented employers from “foisting speech that the state finds repugnant on a ‘captive audience’ of employees,” stating that the state cannot censor speech, even to a captive audience, because it finds it repugnant. The court stated: “Under our constitutional scheme, the ‘remedy’ for repugnant speech is more speech, not enforced silence.”
The court also found the IFA to be impermissibly vague in violation of the Due Process Clause of the Fourteenth Amendment. The court stated that a law can be impermissibly vague for two distinct reasons: “If it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits, or, if it authorizes or even encourages arbitrary and discriminatory enforcement.” After analyzing the actual language used in the IFA, the court determined that it was impermissibly vague and violated the Due Process Clause.
What does this mean for colleges and universities that have either put diversity training programs on hold or made modifications based on the law’s prohibitions?
For now, the law cannot be enforced and employee training on the prohibited concepts can be conducted. However, it is very likely the ruling will be appealed, so there is a possibility IFA could be enforced in the future. Unfortunately, it may take a long time for the issue to reach a final, non-appealable ruling in the federal court system and other more tailored laws could be passed in the upcoming legislative session. Colleges and universities will need to evaluate their current training needs and risk tolerance to determine their specific course of action.*
Contact GrayRobinson Shareholder Scott Cole or a member of the Higher Education Team.
*Note: On August 18, a group of State University System of Florida faculty members filed suit in the federal district court in Tallahassee seeking to set aside another aspect of the IFA prohibiting faculty from espousing, promoting, advancing, inculcating, or compelling in their classrooms the eight prohibited concepts. See Pernell v. Florida Board of Governors, Case number 4:22-cv-304; United Stated District Court for the Northern District of Florida. That case has raised many of the same arguments addressed in Judge Walker’s opinion, including the First Amendment violation for being view-point based and vague, and in violation of the equal protection clause.