Florida’s ‘Parental Rights in Education Act’ is unconstitutional, unnecessary, and bigoted

On March 28, Gov. Ron DeSantis (R-Fla.) signed HB 1557, the euphemistically entitled “Parental Rights in Education Act.” The legislation prohibits “instruction [and in the preamble, “classroom discussion”] related to gender identity or sexual orientation” in kindergarten through third grade classes or instruction by school personnel or third parties “in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards.” The bill bans public school personnel from preventing disclosure to parents of “critical decisions” affecting students’ “mental emotional, or physical health and well-being.” It authorizes private citizens to enforce the law by filing suits against school districts for damages and attorneys’ fees.

According to DeSantis, the bill will end the practice of “sexualizing kids in kindergarten,” enabling schools to “‘transition’ students to a different gender,” and impose a “woke gender ideology” on first graders. The legislation will stop “different folks in school,” from telling students, “Oh, don’t worry, don’t pick your gender yet.”

DeSantis did not mention that the Florida Board of Education has indicated that sexual orientation and gender are not part of the K through 3^rd grade curriculum.

DeSantis has rarely identified any of the “folks” he alleges are indoctrinating schoolchildren. And the story he has told about a decision made by “some of the people” at a school without parental consent to change “the name and pronouns” of a student because she “was really a boy” is inaccurate.

The governor’s decision to sign the bill at Classical Preparatory School in Spring Hill, Fla., despite the fact that it does not apply to charter schools, is another sign that his principal purpose is political: serving red meat to a MAGA base.

Appropriately dubbed “Don’t Say ‘Gay,’” the legislation is unconstitutional, unnecessary, and bigoted.

HB 1557 is grotesquely vague and broad. The terms “instruction related to gender identity or sexual orientation,” “classroom discussion,” “age appropriate,” “developmentally appropriate,” “critical decisions,” and “third parties” are not defined. And the clause about age and developmentally appropriate instruction could apply to grades 4 and beyond. Moreover, the law goes into effect on July 1, 2022, one year before the Florida Board of Education is required to provide guidance on compliance. 

Would a gay teacher — or, for that matter, a heterosexual one — violate the law if she referred to her spouse? Must a teacher remain silent if a student says he has two moms and someone else asks what that means? Must all books and periodicals with gay or transgender characters, homoerotic undertones, or, say, references to Secretary of Transportation Pete Buttigieg, be banned from public schools in Florida? Must school districts inform parents that their child has asked questions related to sexual orientation or gender identity?

The Supreme Court has declared that a statute must not be so vague that people “of common intelligence must necessarily guess at its meaning and differ at its application.” The High Court has also decreed that to pass constitutional muster, the government must show “a compelling state interest in restricting the content of the speech and that the restriction is narrowly tailored to achieve that end.” The Court has indicated as well that students of every age have free speech rights under the First Amendment of the U.S. Constitution.

Suits have already been filed against HB 1557, and they make a compelling case that the legislation invites arbitrary enforcement by “roving censors” that violate Title IX prohibitions on discrimination based on sexual orientation or gender identity and that the bill is intended to force school districts to reduce their liability by telling teachers to say and do nothing that might arouse the ire of “sensitive” (i.e., anti-LGBTQ) parents.

Along with their constitutional arguments, critics maintain that treating gay and transgender people — who already experience high rates of bullying, harassment, and assault — as “outcasts, or their allies as outlaws, by punishing schools where someone dares to affirm their identity and dignity,” constitutes “a grave abuse of power.” Blocking discussions of sexual orientation and gender identity, according to Frank Worrell, President of the American Psychological Association, “risks stigmatizing and marginalizing children who may realize their differences at a young age.” It can lead to “depression, anxiety, self-harm, and even suicide.”

As he lavished praise on the so-called “Parental Rights in Education Act” it’s worth noting, DeSantis threatened to end “legal privileges” for the Disney Corporation, which publicly opposed the bill. And he pushed for “Free Speech for Health Practitioners” bills that would block medical boards from sanctioning physicians who recommended COVID-19 treatments not approved by the CDC — unless they could prove “beyond a reasonable doubt that they led to direct physical harm” of their patients.

An advocate of free speech megaphones for those who agree with him — and gags for those who don’t, this governor, it seems clear, speaks with a forked tongue.

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of “Rude Republic: Americans and Their Politics in the Nineteenth Century.”