Abstract

Excerpted From: Katheryn Russell-Brown, The Multitudinous Racial Harms Caused by Florida's Anti-DEI and “Stop Woke” Laws, 51 Fordham Urban Law Journal 785 (March, 2024) (278 Footnotes) (Full Document)

The state of Florida has one of the largest university education systems in the country. It proudly boasts a state university system that includes 12 colleges and universities. In 2023, U.S. News and World Report ranked Florida as the number one state in the country for higher education. In 2023, three of the state's public colleges were ranked among the top 100 “national universities.” Approximately 400,000 students are enrolled in Florida's public colleges and universities.

Each year in Florida, approximately 178,000 students graduate from the state's public high schools. These students are eligible for in-state tuition benefits for the state's colleges and universities. Some high school graduates are also eligible for the state's top scholarship, the Florida Bright Futures Scholarship program.

There are more than 25,000 faculty members who teach in Florida's public college and university system. Across these institutions of higher learning, a small group of instructors teach and specialize in race-related topics or broader issues of social justice. These college instructors and their students, who are learning about race and justice issues, are the focus of this Article. Specifically, this Article examines how recent Florida laws restructure how race-related topics can be addressed in the college classroom. The analysis uncovers the myriad ways these laws impose legal, economic, and social harm.

Florida's “Stop WOKE” Act, also known as HB 7, took effect in 2022. The Stop WOKE Act mandates new rules for how and when race and social justice issues can be included in the state's public school classrooms. In another law review article, I investigate the reach of the Stop WOKE Act and establish its connection to earlier laws that made it unlawful for enslaved Blacks to achieve basic literacy. These anti-literacy laws not only punished enslaved Blacks, they also sanctioned the people who taught them to read and write (Whites and free Black people). The article examines Stop WOKE through the lens of two theories, racial threat and critical race theory (CRT). These theoretical approaches establish that HB 7 is part of a long legacy of anti-Black legislative responses. I evaluate the eight key components of HB 7 and conclude that it operates in much the same way as early anti-literacy laws. Hypothetical scenarios are used to analyze these effects as well. The discussion demonstrates the difficulty law school professors will have in determining how to comply with the new law. The piece identifies other problematic aspects of the law, namely its ambiguity, and sketches out the likely long-term consequences and harms of HB 7.

In 2023, Florida passed SB 266, a law that further curtails classroom teaching on race-related subjects, particularly when the framework applies a critical or racial analytic lens. Additionally, the law bans diversity, equity, and inclusion programs, training, and institutional frameworks in Florida public schools. The combined impact of HB 7 and SB 266 has been a wholesale restructuring of race and social justice education in Florida's public colleges and universities.

This Article is part three of my analysis of Florida legislation that targets race scholarship. The discussion identifies and analyzes both the impetus for and impact of the recent Florida laws that rewrite how race and social justice issues are taught in the state's public schools. In giving Florida residents HB 7 and SB 266, what does the Florida legislature take away? The central focal point of this piece is to identify the range of harms caused by these laws. This includes an evaluation of the social, legal, economic, and psychological harm imposed by HB 7 and SB 266. This Article analyzes the broad impact of these laws on race-related scholarship, race scholars, and students.

This Article offers an analytical update and an expansion of the issues raised in the first piece. The discussion also considers the broader harms and impacts of HB 7. Because HB 7 has been in effect for more than a year, it is possible to identify concrete harms caused by the law and to predict more accurately the future harms of SB 266. A deep dive into the reach of HB 7 and SB 266 establishes various harms, tangible and intangible. These laws may result in the devaluation of a Florida high school diploma or college degree. The central focus is on the two recent Florida laws that have essentially rewritten how K-20 public school instructors can teach certain subjects. This new educational paradigm has sweeping legal and social consequences.

There are two anchors for this discussion, the historical roots of anti-DEI legislation and the larger sociopolitical structure in which it operates. First, anti-literacy laws frame the base for HB 7 and SB 266. As analyzed in Part I, both laws are directly tied to laws from the 1700s and onward that outlawed literacy for Black people. These laws initiated harsh punishment for anyone of any race who taught enslaved Blacks the basics of how to read or write. Anti-literacy laws later evolved to ban substantive literacy. These more selective laws make it unlawful for instructors to expose children of any race to certain topics and perspectives about race. This includes narratives and material that critique racial history and American racism. Second, HB 7 and SB 266 are supported by an extensive network of laws, policies, and practices. This network, or what I would call a tangled web of laws, buoys both the Stop WOKE Act and the Anti-DEI law. In different ways, each part of this network reinforces the belief that Black people and members of other marginalized groups should have fewer civil rights, fewer constitutional protections, and less access to mainstream success. Examples include laws that reduce Black voting power, laws that reduce students' access to race-related history, books bans, and voter disenfranchisement laws.

This Article is divided into five parts. Part I provides an overview of the legislation under analysis, HB 7 and SB 266. These laws identify specific perspectives and approaches that are not permissible, including Critical Race Theory (CRT) and programs that promote DEI. Part I also includes a review of HB 551: the legislation that addresses the mandated K-12 African American History in Florida. The discussion indicates how the new laws intersect with other laws, such as voting rights and book bans. Part II examines how these laws impact the generation of race-related scholarship. Part III considers how this legislation affects the research and teaching of race scholars, specifically curriculum development, classroom discussion, and belongingness within the university community. Part IV assesses the larger impact of these harms, beyond scholarship and beyond the university classroom. The analysis reveals that the individual weight of each identified harm is significant. Collectively, the weight of these harms is immense and cannot be dismissed. A devastating picture emerges: HB 7 and SB 266 have resulted in a significant devaluation of a Florida college degree. Part V uses this finding as a point of entry for analyzing the nature of the harm wrought by these laws. A novel theory of harm through the Fifth Amendment's Takings clause is used to explore this issue. This Part applies the Takings Clause to Florida's Bright Futures Scholarship Program. While the argument would not be successful in court, a takings analysis dramatically illustrates the intertwining economic and social costs triggered by HB 7 and SB 266.

It is important to make two preliminary notes. One, the primary focus of this Article is on how HB 7 and SB 266 regulate race-related curriculum and scholarship. These laws, however, apply to other academic subjects, including gender studies, social justice, ethnicity, and religion. Two, while these laws apply to K-20 public education, this Article focuses on the impact of these laws at the college level.

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This Article shines a spotlight on two Florida laws, Stop WOKE and Anti-DEI. Together HB 7 and SB 266 have fundamentally changed how race can be taught in Florida's college classrooms. They mandate substantive and pedagogical boundaries around race-related curriculum. These laws have historical roots in anti-literacy legislation.

For centuries, there have been various bans on literacy. During slavery, it was illegal for enslaved Blacks to learn to read and write. There was acute concern that enslaved Black people did not have access to material or narratives of freedom and independence. Following the Civil War, strategies were implemented to prevent Black people from achieving racial equality. For instance, schools for Black children were burned down. In the early to mid-1900s, states took broad measures to control the curriculum Black school children would receive. In some instances, the local school board provided an educational template for Black teachers, which outlined the subjects and perspectives they could and could not teach. Educators who did not comply were punished. Anti-literacy and anti-Blackness have firm roots in the U.S. education system. Florida's HB 7 and SB 266 are legislative legacies of this history.

By design, both HB 7 and SB 266 ensure that Florida college students will know less about critical racial perspectives of U.S. history. With each subsequent piece of legislation, it seems, Florida builds a higher barrier, and thereby reduces the scope of knowledge about race and history more broadly. College educators who teach race-related subjects and college students who are interested in race and social justice issues will feel the greatest sting from HB 7 and SB 266. However, the reach of these laws extends much further. It includes professors who teach subjects that may intersect with race issues. It includes their students. The laws may also impact which students apply to Florida universities for undergraduate and graduate programs. They may also affect the pool of candidates who apply for faculty positions at Florida universities. Based on the discussion, we are all only a few degrees of separation from the impact of these laws.

The many harms caused by these laws should be taken seriously. In response to unclear legislative boundaries, educators are wary. Some educators are afraid to teach and are afraid to speak openly about the new rules. To avoid reprisals from state or university officials, some professors have excised race material completely from their courses. As a result, students are not being exposed to material that professors had previously determined were essential to meet core competencies. Students are rethinking majors that focus on race. There is growing evidence of an academic exodus out of Florida. The impacts of HB 7 and SB 266 have been bolstered by other anti-civil rights legislation, including book bans, re-drawn electoral voting districts, more stringent rules for the formerly incarcerated to have their voting rights restored, post-tenure review for university faculty, and relaxed gun laws.

In case there was any doubt about the breadth of harm caused by HB 7 and SB 266, the Fifth Amendment takings analysis crystalizes their harms. The takings discussion evaluates how these laws impact the Bright Futures scholarship. Though it would be an unsuccessful legal claim, the takings issue provides a unique framework and highlights what is at stake. It provides a coherent framework for examining harm. Specifically, it shows how the HB 7 and SB 266 legislative shift take away a benefit without providing compensation. The takings assessment provides a structure for calculating how these new laws, ostensibly designed to benefit the public, actually cause injury and loss.

A complete transformation of Florida's public education system is well underway. The radical legislative changes that punish race education are occurring in plain sight. If the past is prologue, we can expect to see more laws like HB 7 and SB 266. The harms of this educational earthquake are multitudinous. In the absence of rapid and broad interventions, education as we have known it will be a matter of history. Under the current regime, future educators may be banned from teaching about HB 7 and SB 266 in their college classrooms.

Levin, Mabie & Levin Professor of Law and Director of the Race and Crime Center for Justice, at the University of Florida, Levin College of Law.