By: Taylor Weathers
Annual Banned Books Week came early this year in Florida. As students and teachers returned from winter break, some classroom staples notably did not return. Several counties in Florida, including Manatee and Duval, instructed teachers to “remove or wrap up their classroom libraries.”[1] This is a result of Governor DeSantis-backed legislation, HB 1467, which could make it a felony to distribute “harmful materials” to minors.[2] This is because HB 1467 stacks on top of a previous law, Florida Statute 847.012, which makes it a third-degree felony to “knowingly distribute to a minor on school property” any material that is sexually explicit.[3] Florida Statute 847.012 defines “school property” as “the grounds or facility of any kindergarten, elementary school, middle school, junior high school, or secondary school, whether public or nonpublic.”[4] HB 1467, passed March of 2022, says that district boards must discontinue use of material that is prohibited under statute 847.012.[5]
The concern is that these laws provide little clarity “around enforcement and around what titles might become outlawed” but dispense the strictest of penalties for guessing wrong.[6] A few books that may violate the above Florida statutes are Brave New World,[7] Speak,[8] Fahrenheit 451,[9] and To Kill a Mockingbird.[10] All of which have become syllabus staples in English literature classrooms across the U.S. but have also earned their spot on the list of banned books over the years. Because districts do not know which books could land them or their staff in hot water, teachers are being instructed to simply remove all the books until each one can be evaluated.[11] As such, videos of empty public-school library shelves have gone viral. For example, one Jacksonville teacher posted a video of an entire school library with rows and rows of empty shelves with the caption “since y’all wanna play the ‘this isn’t really happening’ game.”[12]
Books are not the only thing on the chopping block in Florida. During the 2022 legislative session, multiple bills were enacted that heavily restrict what can be taught in Florida public schools.[13] Namely, the Stop Wrong to Our Kids and Employees (W.O.K.E.) Act and, what has been widely named, the Don’t Say Gay bill.[14] These bills have been the subject of recent litigation. In Pernell v. Florida Board of Governors of the State University System, public university professors and students sought an injunction against Florida’s public university system arguing First and Fourteenth Amendment violations.[15] The judge in the case, Chief Judge Mark Walker, granted part of the injunction. In an ongoing case, Cousins et al v. School Board of Orange County et al, plaintiffs seek a similar injunction to prevent the Orange County School Board from enforcing the Don’t Say Gay bill because “it fosters a culture of silence and nonacceptance of LGBTQ+ students and LGBTQ+ families.”[16]
These lawsuits generally get analyzed under the same umbrella of in-school curriculum/speech cases. However, courts typically hold that the necessity for academic freedom is lower in the K-12 context than in public universities. In one case, Mailloux v. Kiley, a Massachusetts District court held that K-12 schools more clearly act in “loco parentis with respect to minors,” so the provided materials are more representative of the local community.[17] However, in the context of banning books, the decisions are split. In one case, Parducci v. Rutland, a district court in Alabama held that a high school English teacher was wrongfully dismissed after she assigned Kurt Vonnegut’s Welcome to the Monkey House to her eleventh-grade class.[18] Several parents called to complain and the school fired the teacher for assigning material that had a “disruptive effect.”[19] The court held that “[w]ith the greatest of respect to such parents, their sensibilities are not the full measure of what is proper education.”[20] Conversely, in American Civil Liberties Union of Florida, Inc. v. Miami-Dade County School Bd., the Eleventh Circuit held that the school board did not violate the First Amendment by removing Vamos a Cuba from school libraries.[21] The court in that case held that the school board had discretion over which books to make available.[22]
Until these vague book and curriculum restrictions get hashed out in court, teachers and students are going to be the ones paying the price.[23] Meanwhile, Governor DeSantis accepts praise for being the “most anti-woke governor in our nation.”[24] Ray Bradbury’s world where people hide books behind walls and in bushes to avoid persecution may not be fiction anymore.[25] The fear is tangible and headlines like “Hide your books to avoid felony charges, Fla. schools tell teachers”[26] and “Florida teachers forced to remove or cover up books to avoid felony charges”[27] are becoming more common. It is unsure where we are headed but one thing is certain, “[t]his is positively dystopian.”[28]
[1] Hannah Natanson, Hide your books to avoid felony charges, Fla. schools tell teachers, The Washington Post (Jan. 31, 2023, 6:00 AM), https://www.washingtonpost.com/education/2023/01/31/florida-hide-books-stop-woke-manatee-county-duval-county-desantis/.
[2] Fla. HB 1467 (2022).
[3] Fla. Stat. § 847.012(5-6) (2022).
[4] Id. at 5.
[5] Fla. Legis., HB 1467: K-12 Education (2022).
[6] Natanson, supra note 1 (quoting a spokeswoman from the Florida Department of Education as saying violations of HB 1467 may result in “up to five years in prison and a $5,000 fine” or “’penalties against’ an educator’s teaching certificate”).
[7] Aldous Huxley, Brave New World (Chatto & Windus, 1932) (discussing a future world where “everyone belongs to everyone else”).
[8] Laurie Halse Anderson, Speak (Farrar Straus Giroux, 2011) (about a high school girl who becomes selectively mute after suffering a rape at a party).
[9] Ray Bradbury, Fahrenheit 451 (Ballatine Books, 1953) (about a fireman living in a dystopian world where those caught with books have their houses burned down and are committed to psychotherapy).
[10] Harper Lee, To Kill a Mockingbird (J. B. Lippincott & Co, 1960) (about a lawyer who defends a Black man accused of raping and beating a White woman).
[11] Natanson, supra note 1.
[12] @JagsFanBrian, Twitter (Jan. 27, 2023, 9:23 AM), https://twitter.com/jagsfanbrian/status/1618977880696041474?s=46&t=_Q33XZVq7h3duVWnPIme0g.
[13] Fla. HB 7 (2022)(prohibiting certain topics, like African American history/stories, that are not considered “objective”); Fla. HB 1557 (2022)(prohibiting discussion of “sexual orientation or gender identity” in grades K-3 and requiring school boards to adopt procedures notifying parents of changes to their child’s mental/physical health, or more directly put, outing children’s sexual orientation to their parents).
[14] Fla. HB 7 (2022); Fla. HB 1557 (2022).
[15] Pernell v. Florida Bd. of Governors of State Univ. Sys., —F.Supp.3d—, 2022 WL 16985720 (N.D. Fla. Nov. 17, 2022).
[16] Cousins et al v. School Board of Orange County et al, 6:22CV01312.
[17] Mailloux v. Kiley, 323 F. Supp. 1387, 1392 (D. Mass. 1971), aff’d, 448 F.2d 1242 (1st Cir. 1971); in loco parentis, Legal Information Institute, https://www.law.cornell.edu/wex/in_loco_parentis#:~:text=A%20Latin%20term%20meaning%20%22in,elder%20law (last visited Feb. 3, 2023) (defining in loco parentis as “the legal responsibility of some person or organization to perform some of the functions or responsibilities of a parent”).
[18] Parducci v. Rutland, 316 F. Supp. 352, 353 (M.D. Ala. 1970); Kurt Vonnegut, Welcome to the Monkey House (Delacorte, 1968) (a collection of short stories that satirically address societal issues).
[19] Parducci, 316 F. Supp at 354.
[20] Id. at 356.
[21] Am. Civil Liberties Union of Florida, Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1230 (11th Cir. 2009).
[22] Id. at 1228.
[23] Natanson, supra note 1 (writing “educators are “distressed” by the idea of possibly receiving a third-degree felony conviction for providing books to children” and “[t]he kids don’t understand it’s just so sad”).
[24] Governor Ron DeSantis Signs Legislation to Protect Floridians from Discrimination and Woke Indoctrination, FL Gov (Apr. 22, 2022), https://www.flgov.com/2022/04/22/governor-ron-desantis-signs-legislation-to-protect-floridians-from-discrimination-and-woke-indoctrination/; Woke, Merriam-Webster, https://www.merriam-webster.com/dictionary/woke (last visited Feb. 6, 2023) (defining “woke” as “aware of and actively attentive to important societal facts and issues”).
[25] Bradbury, supra note 9.
[26] Natanson, supra note 1.
[27] Erum Salam, Florida teachers forced to remove or cover up books to avoid felony charges, The Guardian (Jan. 24, 2023, 12:06 PM), https://www.theguardian.com/us-news/2023/jan/24/florida-manatee-county-books-certified-media-specialist.
[28] Pernell v. Florida Bd. of Governors of State Univ. Sys., —F.Supp.3d—, 2022 WL 16985720, *1 (N.D. Fla. Nov. 17, 2022).
This article defines a compelling free speech concern for all Floridians. In modern times, no U.S. Governor has banned classic novels from State school libraries, and Governor DeSantis’ recent authoritarian actions strikes at the soul of American democracy. The pretext DeSantis puts forth for banning classic novels that have been published for decades is the same communal ideology used by al-Qaida Islamists, Hitler, and the Puritans. As portrayed in Fahrenheit 451, when society accepts the banning or burning of books, citizens’ ability to independently think for themselves is eroded. DeSantis’ belief in his superiority that only he knows best what books Floridians can and cannot read is a true mark of a tyrannical Governor and an assault on everyone’s freedom of speech protections.