Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Florida’s most recent anti-“WOKE” legislation places diversity-related work and diversity-focused positions on state campuses under threat.
House Bill 999 (Postsecondary Educational Institutions), which was approved in a 12-5 party-line vote on March 13, follows a movement in the state led by Republican Governor Ron DeSantis to limit discussions on race, gender identity and sexuality in schools. It is the latest installment in a series of similar bills that have been enacted in Florida. Last year, the governor signed into law the “Stop WOKE” Act (which is currently pending appeal), which seeks to restrict how conversations about race and gender take place at colleges and in workplaces by barring any discussion that would make people feel “guilty” or “uncomfortable” about past wrongs.1
HB 999 specifically bans state colleges and universities from financially supporting any programs or campus activities that “espouse Diversity, Equity, or Inclusion (DEI), or Critical Race Theory (CRT) rhetoric” – even though the bill does not define CRT rhetoric. The bill also prohibits any “direct-support organizations from expending state or federal funds on Diversity, Equity, and Inclusion (DEI) programs or activities unless required for compliance with federal law or regulations or in support of specified access programs.” Furthermore, the bill bans courses “based on unproven, theoretical or exploratory content” as well as majors in women’s and gender studies.
The reach of the bill over both academic and non-academic employment is expected to be widespread. If enacted, it would have a significant impact on DEI officers and DEI program staff members—programs Governor DeSantis has said cost $34 million across the state’s college and university system. HB 999 would also impact professors given that the legislation prohibits any forms of “political identity or ideological filters” as part of any hiring, disciplinary, or evaluation processes, commonly included as part of application processes for promotion and tenure. To that end, the legislation includes a watchdog provision by allowing each university’s Board of Trustees (whose members are appointed by political appointees) to order a review of a faculty member’s tenure status at any time, and without any need for “cause.” This provision marks a significant departure from the concept of “tenure” as it is modernly understood.
Given the uncertainty for higher education institutions in Florida as to the scope of the law, those with DEI initiatives may wish to review the range and potential relevance of their current DEI commitments, programs, and procedures as well as the contents of other potentially applicable workplace practices, with counsel.
The state senate is debating the proposed legislation this week. If it succeeds, the bill’s enactment is slated for July 1, 2023.
We will continue to keep readers apprised of developments.
1 For more information on this law and its legal challenges, see Nancy A. Johnson and Cindy-Ann L. Thomas, Can Even Stranger Things Still Happen? Florida is Blocked From Enforcing “Stop-WOKE” Law… For Now, Littler Insight (Aug. 22, 2022); Jim Paretti, Nancy A. Johnson, Cindy-Ann L. Thomas, Down But Not Out: U.S. District Court Denies Preliminary Injunction Against Florida “Stop-WOKE” Law, Littler Insight (June 28, 2022); Nancy A. Johnson and Cindy-Ann Thomas, First Lawsuit Against Florida’s “Stop WOKE” Bill Filed, Littler ASAP (Apr. 26, 2022); Jim Paretti, Cindy-Ann Thomas, and Nancy Johnson, Florida Limits Permissible Workplace Training on Diversity, Implicit Bias, and Systemic Racism, Littler ASAP (Apr. 22, 2022).