By: Jasmine Gamboa
On March 28, 2022 Governor Ron DeSantis signed the Parental Rights in Education, House Bill 1557 (HB 1557) into law.[1] The law expressly prohibits Florida public schools from discussing sexual orientation or gender identity in kindergarten through the third grade.[2] It also bans discussion of the same subject matters if it is done “in a manner that is not age-appropriate or developmentally appropriate for students”. [3]
The law creates potential lawsuits as it allows a parent to sue the school district, subject only to the requirement the parent give the school district 30 days’ notice.[4] Any parent with a concern that the school district violated the law by discussing sexual orientation or gender identity to their child may sue their school district for injunctive relief, seek damages and be awarded court costs and attorneys’ fees.[5] The law fails to define “gender identity or sexual orientation” the very subject matter of the speech it prohibits. It also fails to clarify the meaning of “classroom instruction” or “classroom discussion”. The personnel whose speech is restricted is also not defined. “School personnel” could be a teacher, school nurse, janitor, principal or guidance counselor, and “third parties” could be other parents or after school care personnel.
Because HB 1557 applies to any grade where classroom instruction is not age-appropriate or developmentally appropriate in accordance with state standards, the prohibition extends to instruction well outside of the third grade. Yet again, in line with its other vague terminology, the law does not define what those state standards are. The Department of Education is not required to review and update these standards until June 30, 2023, almost a full year after the law goes into effect.[6]
The negative effects of this law are impossible to ignore. HB 1557 is a government censorship bill that silences students and school personnel from speaking about their LGBTQ family members, friends, neighbors and acquaintances in class. More importantly, it prohibits LGBTQ students from discussing their own lives and experiences. If the issue to be remedied by this legislation is the classroom discussion of sexuality in an inappropriate way, Florida law already does this.[7] It requires that teachers who address human sexuality, “provide instruction and material that is appropriate for the grade and age of the student”.[8] The state’s teachers union, Florida Education Association, confirmed that elementary school teachers do not teach curriculum regarding sexuality.[9]
This law is simply an infringement on teachers’ freedom of speech and First Amendment rights. If the courts decide any type of public support of LGBTQ topics is equivalent to classroom discussion, the districts could incur costly legal fees for a single teacher who chooses to exercise their right to freedom of expression. Teachers will be forced to remove any symbol of LGBTQ support, including pride flags, rainbows and photos of LGBTQ public figures in the classroom. Teachers are rightfully concerned they will be limited in their ability to teach their students, because they are at a loss as to what they are permitted to discuss. For example, a History teacher could assign independent research assignments to his students and let them choose a past or present event to report on, but if a student highlights an LGBTQ civil rights event or LGBTQ public figure, the teacher could then be sued, disciplined or fired. English teachers typically allow their students to do creative writing assignments where they are free to write on any topic. This law restricts teachers from providing feedback to any student who writes about anything related to the LGTBQ subject matter.
This law is also requiring school officials to review and edit school district policies and curriculum. This behavior becomes unlawful when officials exercise their discretion over curricular decisions “in a narrowly partisan or political manner”.[10] Certain legislators in Florida have made it very clear this prohibition is supported along party lines and have publicly expressed that the purpose of this law is to bar discussion of LGBTQ topics.[11] In fact, the sponsor of the bill in the Senate, Senator Dennis Baxley, made it clear that the law is being created to address parents’ concerns surrounding discussions of LGBTQ students’ sexual orientation and gender identity.[12] He stated “All of a sudden, overnight, they’re a celebrity when they felt like they were a nobody…I know parents are very concerned about the departure of the core belief systems and values.”[13]
This law is nothing more than an infringement on students’ rights to receive information and freedom of speech. Tinker v. Des Moines established students do not lose their constitutional right to freedom of speech when they attend school, “students do not ‘shed their constitutional rights of freedom to speech or expression,’ even ‘at the school house gate.”[14] This law is unconstitutional because it bar students from speaking on gender identity or sexual orientation simply because they are in a classroom setting. A student’s written or spoken expression is considered protected unless it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”[15] The LGBTQ students in Florida aren’t “materially disrupting classwork” by speaking to their peers about their sexual orientation, any more than their two heterosexual classmates exchanging love notes in the back of the classroom.[16]
In 1988 the Supreme Court held that laws restricting school curriculum and instruction violate students’ First Amendment rights to receive information, where they are not “reasonably related to legitimate pedagogical concerns”.[17] Florida legislators have failed to point out any pedagogical concerns of the state’s curriculum on gender identity or sexual orientation. Their concerns are focused on the “departure of core belief systems and values.”[18] This law violates students’ right to receive information concerning sexual orientation and gender identity, despite this information serving a crucial pedagogical purposes for all students. There is no doubt that when HB 1557 goes into effect on July 1, 2022 it will only negatively affect and stigmatize an entire generation of students. One can only hope Congress or the judiciary will step in to remedy the violation of these constitutional rights.
[1] H.B. 1557, 124th Reg. Sess. (Fla. 2022).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Fla. Stat. § 1003.46(2)(d) (2021).
[8] Id.
[9] New Law Promotes Falsehoods About Schools, Will Aggravate Shortage Of Teachers And Staff, Fea (March 28, 2022),https://feaweb.org/release/new-law-promotes-falsehoods-about-schools-will-aggravate-shortage-of-teachers-and-staff/.
[10] Bd. of Educ. v. Pico, 457 U.S. 853, 870 (1982).
[11] Tim Craig, Florida legislature passes bill to restrict LGBTQ topics in elementary schools, The Washington Post (March 8, 2022, 11:47 a.m.), https://www.washingtonpost.com/nation/2022/03/08/florida-bill-lgbtq-schools/.
[12] Id.
[13] Id.
[14] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
[15] Id. at 513.
[16] Id. at 513.
[17] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).
[18] Tim Craig, Florida legislature passes bill to restrict LGBTQ topics in elementary schools, The Washington Post (March 8, 2022, 11:47 a.m.), https://www.washingtonpost.com/nation/2022/03/08/florida-bill-lgbtq-schools/.
As a third-grade public school teacher, I have been recently noticing the evolution of my students’ natural acceptance of a person’s sexual orientation. For instance, when a third-grade child called another “gay”, immediately a group of third-grade observers responded by chastising the name-caller with comments like, “What’s wrong with that?”, “He’s not, but so what if he was”, and Don’t pick on someone for something they can’t change”. These comments did not come from any of my prior lessons or comments, but they are receiving this somewhere. I was pleased to see progress in the acceptance and tolerance narrative begin to shift at this level. They did this without the need for teacher intervention, but so many interactions call for a mature adult response.
Thank you for the clarity of this article. It could be a field of landmines out there this school year.