The Don’t Say Gay bill deputizes the most prudish parents to enforce it
These private lawsuits are a recipe for intimidating individual teachers into overcompliance, as the only way a school district can fully protect itself from expensive litigation is to make sure its teachers don’t say anything that angers the most sensitive parents. And even if a school district complies with whatever standards the Education Department eventually comes up with, a parent may still sue - and there’s no guarantee that judges will agree with the department’s interpretation of the law. This means that any school district that is even suspected of violating the law could face crushing legal fees. The Don’t Say Gay bill also uses an enforcement scheme reminiscent of Texas’s SB 8 abortion ban: Under the bill, parents can bring private lawsuits against school districts that violate the ban. That means that, even if state officials eventually provide comprehensive standards explaining when educators are allowed to mention sexual orientation or gender identity, teachers will likely have to fly blind for an entire school year.
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The Don’t Say Gay bill, by contrast, would take effect on July 1 if signed - one year before it requires the Education Department to update its standards to provide guidance on how to comply with the bill. The state, in other words, does not require teachers “of common intelligence” to guess what the state’s health education law requires of them. In fairness, it’s not unusual for Florida education statutes to use vague phrases like “age appropriate.” A different state law, for example, requires schools to teach “comprehensive age-appropriate and developmentally appropriate K-12 health education.”īut that same statute also itemizes several specific topics that teachers should cover, including “Mental and emotional health,” “Nutrition,” and “Substance use and abuse.” The state Education Department also writes more detailed standards fleshing out teachers’ obligations, and it even provides educators with a toolkit they can use to ensure they’re complying with the law. Board of Regents (1967), for example, the Court struck down a web of New York laws intended to prevent communists and other “subversives” from becoming teachers or professors - one statute, which barred employment of anyone who “‘advises or teaches the doctrine’ of forceful overthrow of government” was so broadly worded that it could potentially have forbidden state-run universities from teaching the Declaration of Independence.Ī statute governing classroom speech, the Court established in Keyishian, must not be so vague that people “of common intelligence must necessarily guess at its meaning and differ as to its application.” If Keyishian remains good law - and there is no guarantee that the US Supreme Court’s Republican supermajority will apply Keyishian fairly to an anti-LGBTQ law - then Florida’s Don’t Say Gay bill does not clear this bar. Under current law, the Don’t Say Gay bill isn’t just vague, it is unconstitutionally vague. The insidiousness of Florida’s law is that teachers who won’t understand how to comply with the new law are likely to overcensor their speech in order to protect themselves from being accused of violating the law. If this conversation with the student occurs in a classroom, does it constitute “classroom instruction”?
Smith who the woman she was shopping with is, and Smith responds, “Oh, that’s my wife.” One evening, while Smith and her wife are shopping at the mall, she runs into one of her students and they say hello to each other. Smith is a second grade teacher married to a woman. The bill, however, does not define key terms like “age appropriate” or “developmentally appropriate.” It doesn’t even define the term “classroom instruction.” The most notable part of the bill provides that “classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards.” The bill, which passed the Florida House in late February and the state Senate last week, imposes several vague restrictions on classroom instruction.
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In the likely event that Florida’s Parental Rights in Education bill - the legislation widely known as the “Don’t Say Gay” proposal - becomes law, no one actually knows the full extent of the behaviors it forbids.