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State, school boards fire back in battle to block 'Don't Say Gay' law

Attorney general Ashley Moody speaks at a pre-legislative news conference, Wednesday, Jan. 30, 2019 in Tallahassee, Fla.
Attorney general Ashley Moody speaks at a pre-legislative news conference, Wednesday, Jan. 30, 2019 in Tallahassee, Fla.

Attorney General Ashley Moody’s office and four school boards are fighting an attempt to block a new state law that restricts instruction on gender identity and sexual orientation in schools.

Lawyers for the state and the school boards in Orange, Indian River, Duval and Palm Beach counties filed documents Friday urging a federal judge to reject a request for a preliminary injunction against the controversial law.

The documents disputed that the law (HB 1557) is unconstitutional and contended that the plaintiffs in the case do not have legal standing to challenge it.

Lawyers in Moody’s office said the Legislature has discretion to make choices about school curriculums.

“Schools can only teach so much, choices must be made, and the Constitution leaves those choices to the politically accountable branches,” the state’s lawyers argued in a 22-page document. “Plaintiffs do not suggest otherwise. Instead, they seek invalidation of the curricular restriction by distorting it beyond recognition.”

Attorneys for a group of parents, students and a non-profit organization filed the lawsuit in July in federal court in Orlando and followed up by requesting a preliminary injunction. The lawsuit was filed against the school boards in the four districts, but Moody’s office last week sought to formally intervene.

The plaintiffs’ motion for a preliminary injunction contended that the law, passed this year by the Republican-controlled Legislature and signed by Gov. Ron DeSantis, “was enacted with the purpose to discriminate and has the effect of discriminating against LGBTQ+ students and those with LGBTQ+ family members.” It alleged violations of speech, equal-protection and due-process rights.

“HB 1557, by design, deters speech by and about lesbian, gay, bisexual, transgender, queer, and questioning people in schools,” the motion said. “To achieve this end, the law employs undefined terms that restrict an absurdly broad scope of speech and activity, casting a broad chilling effect and leaving school officials to draw arbitrary and discriminatory lines in their attempts to implement the law.”

The law, which has drawn nationwide attention, prevents instruction on gender identity and sexual orientation in kindergarten through third grade and requires that such instruction be “age-appropriate … in accordance with state academic standards” in higher grades.

Republican lawmakers titled the measure the “Parental Rights in Education” bill. Opponents labeled it the “Don’t Say Gay” bill.

The plaintiffs in the lawsuit include Jen and Matt Cousins, the parents of four children in Orange County schools; Will Larkins, a senior at Orange County’s Winter Park High School who is president of the school’s Queer Student Union; David Dinan and Vik Gongidi, a married same-sex couple who have two children in Indian River County schools; and the non-profit CenterLink, Inc., which has members including LGTBQ community centers in Orange, Duval and Palm Beach counties.

The state’s lawyers said in their document filed Friday that the law’s restrictions on instruction in kindergarten through third grade have taken effect. But they said the restrictions in higher grades will not take effect until state standards are approved, a process that might not be done until 2023.

That distinction has spurred part of the contention that plaintiffs do not have legal standing. For example, Larkins and two of the children in the Cousins family are in higher grades and, Orange County attorneys contend, are not affected this year by the law.

“The alleged fears that OCSB (the Orange County School Board) will, in the future, implement HB 1557 (in grades 4 and above) in a way that deprives these plaintiffs of a constitutional right is speculation at best given that the Department of Education has not yet issued its guidance on how school boards should implement HB 1557 in grades 4 and up,” Orange County attorneys wrote. “In fact, Will Larkins will likely have graduated from high school by the time the Department of Education promulgates the requisite guidance necessary for OCSB’s implementation of the bill in his classroom.”

Moody’s office also argued that the law is “neutral and limited.”

But the plaintiffs, represented by attorneys from Lambda Legal Defense and Education Fund, Southern Legal Counsel, the Southern Poverty Law Center and the international law firm of Baker McKenzie, said in last week’s motion that the law “impermissibly chills” speech in violation of the First Amendment and is unconstitutionally overbroad and vague.

The case has been assigned to U.S. District Judge Wendy Berger, who was named to the federal bench by former President Donald Trump after serving as a state appellate and circuit judge.

Opponents also have challenged the constitutionality of the law in a separate federal lawsuit filed in Tallahassee against the State Board of Education, the Florida Department of Education, Education Commissioner Manny Diaz Jr. and several school boards. That case is pending.