Florida’s Parental Rights in Education Act Violates Teachers’ Constitutional Rights

About the Author: Sarah Jane Rogers is a first-year law student at American University Washington College of Law. Sarah studied Political Science at Florida State University, graduating in 2020. She wants to pursue a career in policy.

Florida’s Parental Rights in Education Act[1] (“the Act”), widely known as the “Don’t Say Gay” act, is unconstitutional in its effect.[2] The asserted intent of the bill is to give parents the final say in their children’s education and “reinforce the fundamental right of parents to make decisions regarding the upbringing and control of their children”.[3] However, First and Fourteenth Amendment issues arise from the Act as it states: “[c]lassroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in any manner that is not age appropriate or developmentally appropriate for students in accordance with state standards.”[4]Additionally, the Act gives parents the power of enforcement by permitting them to bring suit directly against the school district if violations arise.[5]

The Fourteenth Amendment’s Due Process Clause requires that statutes governing classroom speech are not so vague that people of common intelligence have to guess its meaning and differ in its application.[6] The Parental Rights in Education Act imposes unconstitutionally vague restrictions on classroom instruction in the previously stated section.[7] Since the bill does not define key terms like “age appropriate,” “developmentally appropriate,” or “classroom instruction,” teachers and impacted parties are unable to understand how to properly comply with the Act because interpretations of the terms will vary.[8] Florida has another education statute which uses the ambiguous “age appropriate” term; however, unlike the Parental Rights in Education Act, it provides detailed standards to ensure educators understand how to comply with the law, and it does not require teachers of “common intelligence” to assume what the statute requires.[9]

The Florida Department of Education (“FDOE”) is required to provide compliance guidelines for the Act.[10]However, these standards possibly will not be provided until June 2023, and the bill is effective on July, 1 2022.[11]So, during the potential thirteen-month interim, teachers and third parties must guess on how to comply with the bill and how far it will reach. Further, even though FDOE will not provide guidance until June 2023, parents can begin bringing suit to enforce the bill once it goes into effect in 2022.[12]

The Act’s vagueness during this time is dangerous for educators. It creates a situation where an educator could possibly lose their job due to lawsuits brought by parents.[13] However, due to its vagueness, interpretations of the Act will vary, and teachers who believe they are complying with the Act’s requirements may differ from a parent in their interpretation of the language, possibly subjecting the school district to a lawsuit. Further, because of its vagueness, there is no clear standard on how a court will interpret the Act. Therefore, the Act does not inform a person of common intelligence of what the bill will require and thus, the Act is unconstitutionally vague; especially in the context of its enforcement possibly leading to depriving educators of their jobs.

Because the Act is vague, it will inevitably result in educators self-censoring protected speech to avoid violating the Act.  Thus, it violates the First Amendment.[14] Courts grant protections against anticipated free speech regulations. Therefore, if the Parental Rights in Education Act causes teachers and third parties to refrain from engaging in constitutionally protected speech because they fear a lawsuit, this self-censorship creates a legal claim.[15] It is important to note that public school teachers have limited First Amendment rights while teaching a curriculum as a government employee.[16] However, when informally speaking, teachers have the full free speech protections given to ordinary citizens.[17] Thus, because the bill does not define the scope of aforementioned terms, teachers are likely to self-censor their speech regarding gender identity and sexual orientation to an extent that creates a cognizable First Amendment injury.[18]

The pending lawsuit Equality Florida v. DeSantis, which alleges the Parental Rights in Education Act violates the First and Fourteenth Amendments will bring light to the issues discussed.[19] The decision from this lawsuit has the potential to determine if the Act’s vagueness violates the Fourteenth Amendment and if the possible self-censorship will be sufficient to violate the First Amendment. Equality Florida’s decision will hopefully provide guidance on the reach of the state legislatures and vague statutory language.

[1] H.R. 1557, 2022 Leg., Reg. Sess. (Fla. 2022).

[2] John Kennedy, LGBTQ groups, Parents File Federal Lawsuit Opposing Florida’s ‘Don’t Say Gay’ Law, Herald-Tribune, (Apr. 2, 2022, 10:54 PM), https://www.heraldtribune.com/story/news/state/2022/03/31/lawsuit-filed-against-desantis-florida-dont-say-gay-parental-rights-law/7230135001 (referencing Equality Florida v. DeSantis).

[3] Amber Phillips, Florida’s Law Limiting LGBTQ Discussions in Schools, Explained, Wash. Post (Apr. 2, 2022, 10:28 AM), https://www.washingtonpost.com/politics/2022/04/01/what-is-florida-dont-say-gay-bill/, (referencing the Parental Rights in Education bill).

[4] See Kennedy, supra note 2 (referencing Equality Florida v. DeSantis); H.R. 1557.

[5] H.R. 1557.

[6] Ian Millhiser, The Constitutional Problem with Florida’s “Don’t Say Gay” Bill, Vox, (Mar. 15, 2022, 12:30 PM), https://www.vox.com/2022/3/15/22976868/dont-say-gay-florida-unconstitutional-ron-desantis-supreme-court-first-amendment-schools-parents (citing Keyishian v. Bd. of Regents, 385 U.S. 589 (1967)); see also Keyishian v. Bd. of Regents, 385 U.S. 589 (1967).

[7] H.R. 1557

[8] Millhiser, supra note 6.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] H.R. 1557

[14] Brooke Migdon, Does Florida’s ‘Don’t Say Gay’ Bill Violate the First Amendment?, The Hill, (Mar. 5, 2022), https://thehill.com/changing-america/respect/equality/596981-does-floridas-dont-say-gay-bill-violate-the-first-amendment/.

[15] Kara Ingelhard, et. al., LGBT Rights and the Free Speech Clause, Am. Bar, (Apr. 14, 2020), https://www.americanbar.org/groups/gpsolo/publications/gp_solo/2020/march-april/lgbt-rights-free-speech-clause/.

[16] Pleasant Grove City v. Summum, 555 U.S 460, 467-68 (2009) (holding First Amendment protections do not apply to government speech).

[17] Id.

[18] Migdon, supra note 13.

[19] Kennedy, supra note 2 (referencing Equality Florida v. DeSantis).