- January 15, 2023
Attorneys for 14 Florida House members went to a federal appeals court this week after a judge ordered the legislators to turn over some documents related to a controversial law restricting the way race-related concepts can be taught in universities.
Chief U.S. District Judge Mark Walker on Feb. 22 rejected part of a state request to quash subpoenas seeking information about the law, which Gov. Ron DeSantis dubbed the “Stop Wrongs To Our Kids and Employees Act,” or “Stop WOKE Act.”
Plaintiffs in a constitutional challenge to the 2022 law subpoenaed documents from the House members as part of an effort to determine if the measure (HB 7) was passed with a racially discriminatory purpose, according to court documents.
The House filed a motion in January to quash the subpoenas, arguing that they violated a legal concept known as legislative privilege. In his Feb. 22 order, Walker agreed that legislative privilege shielded documents such as lawmakers’ communications “with their staff, other members of the Florida Legislature and their staff, and third parties regarding their motivations and mental impressions concerning the formulation of HB 7.”
But he ordered that the lawmakers turn over certain “factually based information” to the plaintiffs.
“Certainly, communications or documents setting out the legislators’ or their staff members’ motivations and mental impressions regarding HB 7 fall squarely within the legislative privilege,” Walker wrote in the 21-page order. “But purely factual documents, including bill drafts, bill analyses, white papers, studies, and news reports provided by or to the legislators and their staff members, do not fall within the scope of this privilege.”
Attorney General Ashley Moody’s office and House attorneys filed a notice Tuesday that was a first step in appealing the order to the 11th U.S. Circuit Court of Appeals. The notice, as is common, does not provide detailed arguments.
But in a separate motion Tuesday seeking a stay of Walker’s order, the state’s attorneys outlined objections to lawmakers having to turn over documents such as bill drafts and bill analyses.
“Those materials capture the preliminary views of legislators and staff no less than a discussion by e-mail—which the court’s order protects—and are vital to the process of crafting, proposing, and revising legislation,” the motion for a stay said.
Walker granted the stay Wednesday, effectively putting his order on hold while the appeal moves forward.
The law was one of the most-controversial issues of the 2022 legislative session and has drawn at least four federal-court challenges. It seeks to restrict how race-related issues can be addressed in higher education and in workplace training.
The law lists a series of race-related concepts and says it would constitute discrimination if students are subjected to instruction that “espouses, promotes, advances, inculcates or compels” them to believe the concepts.
As an example, the law labels instruction discriminatory if students are led 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.”
The subpoena fight is playing out in a lawsuit filed by instructors and a student from six universities. Walker in November issued a preliminary injunction against the law in that case and another challenge, finding that the law violated First Amendment and due-process rights.
The state has appealed the preliminary injunction to the Atlanta-based appeals court. But the case also has continued before Walker, with the plaintiffs contending that the law violates equal-protection rights.
The plaintiffs issued the subpoenas as part of the equal-protection claim. In a Jan. 27 legal memorandum, the plaintiffs’ attorneys cited “racial justice protests” that happened across the country after a Minneapolis police officer killed George Floyd, a Black man, in 2020.
“Part of plaintiffs’ theory for their equal protection claim is that the backlash to this racial justice movement inspired the Stop WOKE Act and other pieces of discriminatory legislation from the Florida Legislature in the past two years,” the memorandum said.
The memorandum said the subpoenas seek “communications discussing the Stop WOKE Act, critical race theory, Black Lives Matter, racial justice protests, and any reports, studies, or similar documents evaluating the law that the legislators reviewed.”
The subpoenas were issued to 13 co-sponsors of the bill — Rep. Melony Bell, R-Fort Meade; Rep. David Borrero, R-Sweetwater; Rep. Juan Alfonso Fernandez-Barquin, R-Miami-Dade County; Rep. Randy Fine, R-Brevard County; Rep. Randy Maggard, R-Dade City; Rep. Ralph Massullo, R-Lecanto; Rep. Stan McClain, R-Ocala; Rep. Toby Overdorf, R-Palm City; Rep. Bobby Payne, R-Palatka; Rep. Rick Roth, R-West Palm Beach; Rep. Jason Shoaf, R-Port St. Joe; Rep. Tyler Sirois, R-Merritt Island; and Rep. Keith Truenow, R-Tavares — and Rep. Alex Andrade, R-Pensacola.
The lawmakers are not defendants in the case, which was filed against numerous state education officials.