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The constitutional problem with Florida’s “Don’t Say Gay” bill

Florida Republicans are leveraging uncertainty to terrorize teachers and school administrators.

Demonstrators gather on the steps of the Florida Historic Capitol Museum, in front of the Florida Capitol in Tallahassee, on March 7. The state’s Republican-dominated legislature has passed the “Don’t Say Gay” bill to forbid discussions of sexual orientation and gender identity in schools, rejecting criticism from Democrats who said the proposal demonizes LGBTQ+ people.
Wilfredo Lee/AP

In the likely event that Florida’s Parental Rights in Education bill — the legislation widely known as the “Don’t Say Gay” proposal — becomes law, no one actually knows the full extent of the behaviors it forbids. Indeed, that may be the point.

The bill, which passed the Florida House in late February and the state Senate last week, imposes several vague restrictions on classroom instruction. The most notable part of the bill provides that “classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards.”

The bill, however, does not define key terms like “age appropriate” or “developmentally appropriate.” It doesn’t even define the term “classroom instruction.”

Suppose, for example, that Ms. Smith is a second grade teacher married to a woman. One evening, while Smith and her wife are shopping at the mall, she runs into one of her students and they say hello to each other. The next day, the student asks Ms. Smith who the woman she was shopping with is, and Smith responds, “Oh, that’s my wife.”

If this conversation with the student occurs in a classroom, does it constitute “classroom instruction”?

The insidiousness of Florida’s law is that teachers who won’t understand how to comply with the new law are likely to overcensor their speech in order to protect themselves from being accused of violating the law.

Under current law, the Don’t Say Gay bill isn’t just vague, it is unconstitutionally vague. In Keyishian v. Board of Regents (1967), for example, the Court struck down a web of New York laws intended to prevent communists and other “subversives” from becoming teachers or professors — one statute, which barred employment of anyone who “‘advises or teaches the doctrine’ of forceful overthrow of government” was so broadly worded that it could potentially have forbidden state-run universities from teaching the Declaration of Independence.

A statute governing classroom speech, the Court established in Keyishian, must not be so vague that people “of common intelligence must necessarily guess at its meaning and differ as to its application.” If Keyishian remains good law — and there is no guarantee that the US Supreme Court’s Republican supermajority will apply Keyishian fairly to an anti-LGBTQ law — then Florida’s Don’t Say Gay bill does not clear this bar. It’s simply too vague.

In fairness, it’s not unusual for Florida education statutes to use vague phrases like “age appropriate.” A different state law, for example, requires schools to teach “comprehensive age-appropriate and developmentally appropriate K-12 health education.”

But that same statute also itemizes several specific topics that teachers should cover, including “Mental and emotional health,” “Nutrition,” and “Substance use and abuse.” The state Education Department also writes more detailed standards fleshing out teachers’ obligations, and it even provides educators with a toolkit they can use to ensure they’re complying with the law. The state, in other words, does not require teachers “of common intelligence” to guess what the state’s health education law requires of them.

The Don’t Say Gay bill, by contrast, would take effect on July 1 if signed — one year before it requires the Education Department to update its standards to provide guidance on how to comply with the bill. That means that, even if state officials eventually provide comprehensive standards explaining when educators are allowed to mention sexual orientation or gender identity, teachers will likely have to fly blind for an entire school year.

The Don’t Say Gay bill also uses an enforcement scheme reminiscent of Texas’s SB 8 abortion ban: Under the bill, parents can bring private lawsuits against school districts that violate the ban. This means that any school district that is even suspected of violating the law could face crushing legal fees. And even if a school district complies with whatever standards the Education Department eventually comes up with, a parent may still sue — and there’s no guarantee that judges will agree with the department’s interpretation of the law.

These private lawsuits are a recipe for intimidating individual teachers into overcompliance, as the only way a school district can fully protect itself from expensive litigation is to make sure its teachers don’t say anything that angers the most sensitive parents.

The Don’t Say Gay bill deputizes the most prudish parents to enforce it

The bill, at least according to its text, seeks to prevent teachers from providing information about sexual orientation or gender identity that is not “age appropriate.” The bill’s official title, “Parental Rights in Education,” suggests that many Florida lawmakers are concerned that teachers are teaching things that some parents would prefer their children remain ignorant about.

As Florida Gov. Ron DeSantis (R), who has not yet signed the bill but has praised its general concept, claimed last week, “we’ve seen instances of students being told by different folks in school, ‘Oh, don’t worry, don’t pick your gender yet.’” According to DeSantis, it is “entirely inappropriate” when schools “won’t tell the parents about these discussions that are happening.”

Florida Gov. Ron DeSantis delivers remarks at the 2022 Conservative Political Action Conference in Orlando on February 24.
Joe Burbank/Orlando Sentinel/Tribune News Service via Getty Images

Setting aside the question of whether any Florida teacher has actually told a student to wait to “pick your gender,” the Don’t Say Gay bill does a whole lot more than simply require teachers to provide more information to parents. It effectively turns the most squeamish, anti-LGBTQ parent in any public school into the bill’s enforcer.

The bill relies on private lawsuits for enforcement. It permits parents to file a lawsuit against their child’s school district to compel compliance with the bill’s vague requirements, and those parents can potentially win money damages plus “reasonable attorney fees” if they prevail in court.

Lawsuits are expensive to defend again, especially when the defendant could be forced to pay for both its own lawyers and its opponents’. So, in the likely event that DeSantis signs this bill into law, school districts are likely to crack down on any discussion related to sexual orientation or gender identity. Any mere mention of these forbidden topics could provide fodder for litigation.

May a gay teacher display a picture of their spouse on their desk? May a straight teacher do so? Suppose that a third grade student asks a teacher who the highest-ranking openly gay official is in the US government. Is the teacher allowed to respond with the correct answer (Pete Buttigieg), or do they have to blow off the question? What if a book taught in a high school English class has a gay character? Or what if the book has no openly gay characters but a parent reads the book and concludes that it has homoerotic undertones? If a second grade student has two mothers, may a teacher casually mention this fact in the same way they might mention any other student’s parents, or is such a thing forbidden?

As mentioned above, one problem with the Don’t Say Gay bill is that it doesn’t define what constitutes “classroom instruction.” It also doesn’t define inherently subjective terms like what sorts of classroom discussions about sexual orientation or gender identity are “age appropriate” — although the state Education Department may eventually flesh out these terms when it releases new education standards a year after the bill takes effect.

Spend any time reading advice columns for parents and you’ll be bombarded by questions about what kind of activity is appropriate for children of a certain age. Is a 12-year-old girl old enough to date? Is this same child old enough to be left at home alone? Should 14-year-olds be allowed to see R-rated movies?

The reasons parents seek advice on questions like this is that there aren’t clear answers regarding what is “age appropriate” for preteens and teenagers. And there certainly aren’t answers that are clear enough that judges can consistently interpret a law requiring “age-appropriate” instruction to reach predictable results.

Within the context of individual households, it’s not really a big deal if one child is allowed to date at age 12 while the child next door has to wait until they are 14. But the Don’t Say Gay bill is likely to soon have the force of law. And that means people could face very serious consequences if they are accused of violating its vague prohibitions. Teachers need to know what sort of instruction could cost them their jobs. School administrators need to know if their district is vulnerable to lawsuits.

And if they can’t figure out what sort of instructions is allowed, they’re likely to avoid certain topics altogether — even when doing so could cause real harm to students. As American Psychological Association president Frank Worrell said in a statement on the bill, blocking discussions of sexual orientation and gender identity “is inherently wrong” and risks “stigmatizing and marginalizing children who may realize their difference at a young age.” It can also lead to “depression, anxiety, self-harm and even suicide.”

States can decide not to teach certain subjects, but they have to be clear about what teachers are and are not allowed to do

Having laid out this criticism of the Don’t Say Gay bill, I want to be precise about what the Constitution does and does not allow. Florida has fairly broad discretion to determine which subjects its teachers will cover, and which subjects they should avoid. (Florida’s state statutes include a whole 1,400-word section on required education.) But it has to offer more clarity regarding what is and is not allowed than the Don’t Say Gay bill provides.

Think of it this way: Suppose that Mr. Lopez is hired to teach high school algebra, but he decides instead to spend all of his classroom instruction time lecturing about Japanese art history. There’s nothing inherently wrong with teaching high school students about Japanese art, but Florida may decide that algebra is part of the high school curriculum and art history is not. And if Mr. Lopez refuses to teach what he was hired to teach, he may be fired.

States may also choose not to teach politically controversial topics, even if there are real concerns that avoiding those topics causes harm to students. During the second Bush administration, for example, the federal government tried to pressure states into adopting abstinence-only policies that did not include lessons about contraception in the state’s sex education curriculums.

As a matter of policy, abstinence-only education is a terrible idea. According to a 2017 paper published in the Journal of Adolescent Health, abstinence-only policies “have little demonstrated efficacy in helping adolescents to delay intercourse,” while simultaneously denying students information they may need to avoid pregnancy or sexually transmitted infections.

Nevertheless, abstinence-only education, while ill-advised, is also constitutional. The Constitution generally permits the government to determine what messages it will convey to others, and that includes the instruction that teachers provide to students. Thus, so long as a state’s abstinence-only law is drafted clearly enough that teachers understand what they are and are not allowed to teach, it should not be vulnerable to a vagueness challenge under decisions like Keyishian.

Finally, and most significantly for the future of the Don’t Say Gay bill, an unconstitutionally vague statute may be rescued if courts or other bodies with the power to interpret a statute narrow its meaning and offer additional clarity about what sort of behavior it forbids. In the Keyishian case, for example, the Court specifically noted that it did “not have the benefit of a judicial gloss by the New York courts enlightening us as to the scope of” New York’s anti-sedition laws.

Florida state Sen. Dennis Baxley, right, sponsor of the Parental Rights in Education bill, speaking right before the bill was voted on during a legislative session at the Florida State Capitol on March 8.
Wilfredo Lee/AP

Florida’s courts, in other words, might rescue the Don’t Say Gay bill from a lawsuit claiming it is unconstitutionally vague by providing clear definitions for terms like “classroom instruction” and “age appropriate” that would allow a person “of common intelligence” to determine what sort of instruction is allowed and what kind of instruction is forbidden. The state Education Department could potentially do so as well, when it gets around to updating its standards to explain how teachers can comply with the Don’t Say Gay bill — although, again, it is possible that state court judges will reject these standards and substitute their own interpretation of the Don’t Say Gay bill’s language.

In the meantime, any parent could potentially sue their kid’s school district if a teacher even alludes to the concept of homosexuality in a classroom discussion. That’s likely going to terrorize teachers into avoiding discussions of sexual orientation and gender identity altogether.

It’s also worth noting that Florida’s Supreme Court is dominated by Republicans — every one of its seven members was appointed by a Republican governor, including three by DeSantis. So even if the Florida Supreme Court effectively rewrites the Don’t Say Gay bill to make it constitutional, the rewritten law could still be quite awful for LGBTQ students and teachers.

There’s no guarantee that the US Supreme Court will enforce decisions like Keyishian against Republican lawmakers

One other worrisome thing about the Don’t Say Gay bill is that there is no guarantee that the Supreme Court will enforce decisions like Keyishian that restrict excessively vague laws, at least when enforcing those decisions would go against many of the conservative justices’ sense of morality.

In Whole Woman’s Health v. Jackson (2021), for example, the Supreme Court held that Texas could effectively immunize SB 8, its ban on abortions prior to the sixth week of pregnancy, from federal judicial review. If taken seriously, Jackson could permit any state to negate any constitutional right, simply by drafting a law similar to SB 8. But it’s exceedingly unlikely that this Court’s Republican majority would permit a state to nullify the Second Amendment using an SB 8-style law — or any other constitutional right that Republicans approve of.

Similarly, the Court has often protected “religious liberty” selectively, giving expansive rights to conservative Christians while denying similar rights to Muslims.

It’s unclear whether the void-for-vagueness doctrine will receive the same selective treatment if LGBTQ rights groups invoke it to challenge Florida’s Don’t Say Gay bill. But, given this Court’s recent history of applying one set of rules to conservative litigants and a different set of rules to liberals, no one can be sure whether this Court will strike down an unconstitutionally vague law that hurts LGBTQ students.