On July 27, 2022, lawyers from Kaplan Hecker & Fink LLP filed an opposition to Florida’s motion to dismiss a challenge brought on behalf of Equality Florida, Family Equality, and Florida students, parents, and teachers that seeks to invalidate Florida House Bill 1557 (widely known as the “Don’t Say Gay” law).
In the lawsuit, which was filed in March of this year shortly after HB 1557 was passed, the plaintiffs assert that the law violates due process because it deliberately employs broad and vague terms, ostensibly barring any discussion or reference to LGBT identities or issues. The law also invites arbitrary and discriminatory enforcement by giving any parent with a “concern” the right to sue and subject school districts to costly proceedings and potentially damages based on any violation. Beyond that, HB 1557 violates students’ First Amendment rights to receive information and to speak because it censors and chills discussions about sexual orientation or gender identity in Florida public schools, not only for grades K-3 but for any grade where such discussions are deemed not to be “age-appropriate.” The law also violates the Equal Protection Clause and Title IX because it was motivated by discriminatory animus against LGBT people, as the statements of its supporters (including Governor DeSantis and both legislative sponsors) make clear, and it has a disparate (and negative) effect on LGBT people’s educational experiences.
Florida’s motion to dismiss, filed on June 27, effectively seeks to rewrite the statute to cover only curriculum, a word that appears nowhere in the statute’s text, and to claim that everyone’s reaction to the law—which has included broadly silencing LGBT persons and topics and removing LGBT-friendly materials from schools—is based on hysteria. The State also claims there are no constitutional limitations on its ability to regulate curriculum because it is “government speech,” apparently believing that it could teach the next generation that one gender or race is better than another, and courts would be powerless to lift a finger.
The State additionally argues that the plaintiffs “have not come close to showing that the Legislature acted out of animus against LGBTQ individuals”, waving away the extensive evidence that lawmakers and supporters were motivated by a desire to stamp out LGBT identities and references in schools, and the extensive evidence of concrete harms faced by many in the LGBTQ community as a result of HB 1557. As the plaintiffs argue in their opposition:
“The State has unquestionable authority to regulate public school curriculum within constitutional limits. It also has the power to and does regulate teaching about human sexuality. But in form and effect, that is not what HB 1557 does. In fact, several proposed amendments that would have directed HB 1557 toward those permissible ends were all rejected in favor of something broader and more sinister: a law that aims not at curriculum, but at speech; not at sexuality, but at identity; and not at particular lesson plans, but at a particular group of people perceived to be different and wrong. The State’s message has been heard loud and clear: schools are transforming themselves into institutions where inequality, bullying, and censorship are not only permitted, but encouraged, and in some cases mandated.”
Kaplan Hecker is proud to represent our extraordinary plaintiffs in their fight against this blatantly unconstitutional law and to lead the push against rank discrimination and censorship in Florida, which is already threatening to spread to many other states. The Kaplan Hecker team includes partners Roberta Kaplan, Joshua Matz, John Quinn, Kate Doniger, and counsel Brandon Trice.
Read the full filing here.