Stopping “Woke” Culture at the Expense of Free Speech
September 2023 | Kevin Xu (Staff Writer) & Annie Vong (Editor-in-Chief)
As the 2024 election cycle ramps up, one of the main Republican contenders, Florida Governor Ron DeSantis, has waged a war on “woke” culture. Parts of “woke” culture that have been scrutinized are feminist studies, gender and sexuality studies, and black and african american studies. [1] In June 2021, the Board of Education in Florida banned Critical Race Theory, putting it in the same category as the Holocaust for being “theories that distort historical events.” [2] In March 2022, the Florida legislature passed the Don’t Say Gay Bill. [3] In January 2023, the AP course on African and American studies was banned in Florida high schools. [4]
In April 2022, the Individual Freedom Act, also nicknamed Stop Wrongs to Our Kids and Employees (WOKE) Act, was signed by DeSantis. With this act, any instruction that makes certain parties feel “personal responsibility” for historic events is illegal for businesses and teachers. The most widely advertised component of the Stop WOKE Act is its alleged ability to eliminate the teaching of Critical Race Theory (CRT) in K-12 education and corporate employee training programs in the state of Florida. [5] The acronym itself may be reminiscent of an old blocky television, but in this context, CRT refers to a legal theory used by university scholars to analyze how American laws and the systems that enforce them may contain remnants of our centuries-old racial discrimination that still affect the lives of people to this day. [6] For example, the study of CRT may entail discussing the history of how segregation led to redlining and the formation of “the hood,” as well as the widespread poverty caused by minority families’ inaccessibility to real estate loans and properties relative to white families. [7] In other words, CRT is a collegiate-level academic topic that isn’t typically a required component of elementary, middle, or high school curriculum, nor is it explicitly used in any type of corporate training.
However, proponents of the Stop WOKE Act argue that any teaching of American history or sociology that implies racism to be a form of systemic discrimination qualifies as CRT education, even if it’s not deliberately advertised as such. [8] However, the central tenets of CRT are to analyze the subtle traces of racism found in American politics and institutions beyond laws explicitly targeting Black populations.
So, how does the Stop WOKE Act work? In 1992, a law called the Florida Civil Rights Act banned discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. [9] The Stop WOKE Act expands the definition of an unlawful employment practice to include instruction of any of the following concepts: [10]
“Members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex.
A person by virtue of his or her race, color, national origin, or sex is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
A person’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin, or sex.
Members of one race, color, national origin, or sex cannot and should not attempt to treat others without respect to race, color, national origin, or sex.
A person, by virtue of his or her race, color, national origin, or sex bears 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.
A person, by virtue of his or her race, color, national origin, or sex should be discriminated against or received adverse treatment to achieve diversity, equity, or inclusion.
A person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must 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 sec.
Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindedness are racist or sexist, or were created by members of a particular race, color, national origin, or sex to oppress members of another race, color, national origin, or sex.”
However, if businesses do not create a diverse and inclusive environment, they could be violating Title VII of the Civil Rights Act of 1964, [11] attracting the attention of the Equal Employment Opportunity Commision (EEOC), leaving them in a legal limbo between state and federal law.
The law was first challenged in Honeyfund et al. v. Ron DeSantis (2022) in Florida’s District Court in Tallahassee. [12] Some of the plaintiffs that challenged the law are Honeyfund, a company that manages honeymoon registries; Ben & Jerry’s, an ice cream company; and Collective Concepts, a workplace diversity consulting firm. [13] The preliminary injunction for this case states, “Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.” [14] Additionally, the judge pointed out how the law deems instruction on race and gender permissible only if it is “objective.” The term “objective” [15] is not defined in the law, making it vague and open to be interpreted and twisted in a number of ways. [16]
The law was challenged in Pernell v. Lamb (2022), [17] with the plaintiffs, Pernell and American Civil Liberties Union (ACLU), arguing that it violates the 1st and 14th Amendments for both teachers and students. [18] The ACLU argued that the law violates the Equal Protection Clause in the 14th Amendment on the basis that it “was enacted with a racially discriminatory purpose and will have a disparate impact on Black educators and students.” [19] Additionally, the ACLU argues that the law violates the strict scrutiny standard set forth by the Supreme Court. Strict scrutiny is a standard that is applied in cases involving fundamental rights, such as freedom of speech. If the government is alleged to infringe on a fundamental right, the burden of proof falls on them, they must have a “compelling interest” for infringing on it, and the law itself must be “narrowly tailored.” The Court has allowed justifications for an infringement on free speech if it is in pursuit of national defense. For example, the Court allowed the government to crack down on speech that criticized the draft in the Vietnam War in United States v. O’Brien (1968) [20] and the Court upheld the decision to intern Japanese Americans citing the compelling governmental interest of national security in Korematsu v. U.S. (1944). [21] Florida would have to bring forth a compelling interest in order to keep the law. Strict scrutiny is a standard that is strict in theory, but fatal in practice. In November 2022, U.S. District Judge Mark E. Waller blocked the enforcement of the law with a preliminary injunction. [22]
Simply put, any education, in school or the workplaces, that describes racism as anything other than the malicious acts of individuals, qualifies as CRT under the Stop WOKE Act. Educators would be allowed to teach that racism is bad and that racist people are bad, but not the idea that racism is inherent to certain institutions and laws. [23] The stated purpose behind this, of course, is evident in the wording of the law itself — to prevent the ‘guilt, anguish or any form of psychological distress’ of students. [24] In other words, proponents of Stop WOKE Act believe that CRT should be banned because they oppose the idea of racism perpetuated through systemic institutions and that it is something anyone can accidentally be a part of. They believe this is an idea that may cause people paranoia and distress in their daily lives. They favor the idea that racism is a malicious, individual act. In that sense, the Stop WOKE Act is a law intended to prevent panic and disorder in the same way that the First Amendment does not protect people who cry of fires in crowded theaters. However, those who oppose the Stop WOKE Act believe that the prevention of guilt and sadness among specific individuals is not enough reason to create an entire law controlling the contents of Florida state curriculum.
Florida’s laws preventing the free speech of private companies and teachers, is one of the first dominos to fall. Other states are following suit to Florida’s educational censorship laws. Tennessee is one of many states to enact a law that restricts teachings on race and gender. Students in these states will grow up to find their recount of history as completely different from their peers. Ultimately, to neglect racism’s influence on modern-day institutions is to do a disservice to the communities that make up states like Florida. Laws that prevent schools from teaching students about the accurate history of this country means that the next generation will be doomed to repeat the worst parts of it. Though it’s technically passed into law, the Stop WOKE Act still faces heavy resistance every day from teachers confused by its vague wording and activists not willing to let education of true history be censored. The right to free speech is threatened everyday, with the government targeting activists, protestors, journalists, and teachers. Laws like this need to be challenged because they pose imminent danger to the right to free speech not only for this generation, but for generations that will live beyond the lifespan of governors like Ron DeSantis.
Sources
Harriot, Michael. “War on wokeness: the year the right rallied around a made-up menace.” The Guardian. December 21, 2022.
Ali, Safia Samee. “Florida Board of Education passes rule banning critical race theory in classrooms” NBC News. June 10, 2021.
Woodhouse, Britannia. “Saying ‘Gay’: Out of Class or Out of Mind?” UNLV Undergraduate Law Review. April 2022.
Contorno, Steve. “Florida gives its reasons for rejecting proposed AP African American Studies course.” CNN. January 20, 2023.
Reilly, Katie. “Florida’s Governor Just Signed the 'Stop Woke Act.’ Here’s What It Means for Schools and Businesses.” TIME. April 22, 2022.
Waxman, Olivia. “'Critical Race Theory Is Simply the Latest Bogeyman.' Inside the Fight Over What Kids Learn About America's History.” TIME. July 16, 2021.
Townsley, Andres, and Nowlin. “The Lasting Impacts of Segregation and Redlining.” Indy Midtown Magazine. July 16, 2021.
Khaled, Fatma. “DeSantis Bans CRT From K-12 Classrooms Despite Absence From
Curriculum.” Newsweek. April 22, 2022.
United States. Florida Legislature. Florida Civil Rights Act of 1992. Florida Statutes. Chapter 760, Section 760.01. Adopted 1992.
United States. Florida Senate. Individual Freedom Act. Florida Statutes. Adopted 2022.
United States. United States Congress. Title VII of the Civil Rights Act of 1964. Public Law 88-352. Statutes at Large 78 Stat. 241. Adopted 1964.
Honeyfund et al. v. Ron DeSantis. (2022) Case No.: 4:22cv227-MW/MAF.
Ibid.
Ibid.
Ibid.
Ibid.
Pernell v. Lamb (2022) Case No.: 4:22-cv-00304.
“Pernell v. Lamb.” American Civil Liberties Union. July 7, 2023.
Ibid.
United States v. O’Brien (1968). 391 U.S. 367.
Korematsu v. U.S. (1944). 323 U.S. 214.
Vile, John. “Stop W.O.K.E Act (Florida) (2022).” Free Speech Center at Middle Tennessee State University. August 10, 2023.
Mudde, Cas. “What is behind Ron DeSantis’s Stop-Woke Act?” The Guardian. February 6, 2023.
Smith, Kyle. “The White-Guilt Cult.” National Review. June 18, 2020.