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Appeals Court Rules Florida Cannot Bar Corporate DE&I Training

“This is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law, and public policy. And it is not the first time that these disagreements have seemed so important, and their airing so dangerous, that something had to be done. But now, as before, the First Amendment keeps the government from putting its thumb on the scale.”

That is the first paragraph in 11th U.S. Circuit Court of Appeals Judge Britt C. Grant’s written opinion holding that Florida’s “Stop Woke Act” violated the First Amendment of the U.S. Constitution. The three-judge appellate panel—two of whom were appointed by former U.S. President Donald Trump—unanimously upheld a federal judge’s 2022 ruling.

The act says it was an “unlawful employment practice” to subject “any individual, as a condition of employment, membership, certification… to training, instruction, or any other required activity” that promotes or advances any of a number of concepts. Among those concepts are that racism or sexism is inherent, “whether consciously or unconsciously,” and that “an individual’s… status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.”

The act later says the topics themselves were not barred, but rather any corporate backing or endorsement of the concepts at a session mandatory for employees was forbidden.

Florida argued that the law does not ban speech, which is protected by the First Amendment, rather that it bans a conduct: mandatory training where a prohibited viewpoint is endorsed. To that, the court said:

“We cannot agree, and we reject this latest attempt to control speech by recharacterizing it as conduct. Florida may be exactly right about the nature of the ideas it targets. Or it may not. Either way, the merits of these views will be decided in the clanging marketplace of ideas rather than a codebook or a courtroom.”

The Hill reported that “Florida officials, since introducing the ‘Stop WOKE Act’—in which ‘woke’ is an acronym for ‘Wrongs to Our Kids and Employees’ — have argued that the legislation is intended to combat alleged indoctrination in schools and workplaces.”

Indeed, most of the act’s 30 pages deal with what Florida’s schools, both K-12 and higher education, can teach students. That part of the act was not part of the case before the appellate court and remains in force.

Florida Governor Ron DeSantis frequently cites the law as a success for this administration and it was a mainstay of his stump speeches prior to the suspension of his campaign for the Republican nomination for president.

Politico reported that Jeremy Redfern, Desantis’s press secretary, issued a statement that said, “We disagree with the Court’s opinion that employers can require employees to be taught—as a condition of employment—that one race is morally superior to another race. The First Amendment protects no such thing, and the state of Florida should have every right to protect Floridians from racially hostile workplaces.”

In an analysis piece written before the appeals court ruling, a National Law Journal article called the Florida law “the boldest salvo fired by states so far” in attempts to limit diversity, equity, and inclusion (DEI) policies by employers.

Noting the challenge to the law, the analysis piece said, “Even so, it’s only a matter of time before other states pass laws tailored to address DEI concerns, said Scott Shepard, director of the Free Enterprise Project at the National Center for Public Policy Research, a conservative group fighting to rein in DEI efforts. ‘Legislators in some states are considering additional legislation to make sure that facially discriminatory corporate activities are unquestionably illegal if undertaken by companies doing business in their states,’ he said.”