By Jim Saunders ©2023 The News Service of Florida
TALLAHASSEE — A federal appeals court sounded skeptical Tuesday of arguments that 14 current and former Florida lawmakers should be required to turn over documents in a legal fight about a 2022 state law that would restrict the way race-related concepts can be taught in universities.
A three-judge panel of the 11th U.S. Circuit Court of Appeals held a hearing in the Legislature’s appeal of a Feb. 22 ruling by Chief U.S. District Judge Mark Walker. That ruling rejected part of a state request to quash subpoenas seeking information about the controversial law (HB 7), which Gov. Ron DeSantis dubbed the “Stop Wrongs To Our Kids and Employees Act,” or “Stop WOKE Act.”
The key issue in the appeal is whether what is known as “legislative privilege” shields lawmakers from having to turn over information to attorneys challenging the constitutionality of the law.
Walker agreed that legislative privilege shielded documents such as lawmakers’ communications “with their staff, other members of the Florida Legislature and their staff, and third parties regarding their motivations and mental impressions concerning the formulation of HB 7.”
But he ordered that the lawmakers provide certain “factually based information” to the plaintiffs. He wrote that “purely factual documents, including bill drafts, bill analyses, white papers, studies, and news reports provided by or to the legislators and their staff members, do not fall within the scope of this privilege.”
Members of the appeals-court panel, however, questioned Tuesday whether legal precedent supported Walker’s ruling. They also questioned plaintiffs’ attorney Jerry Edwards about whether the requested information could be obtained without subpoenaing lawmakers.
“Could you not get the same information the district court ordered from other sources?” Judge L. Scott Coogler asked.
But Edwards said being “able to show the factual information they (lawmakers) considered could be crucial” to the challenge to the law. Plaintiffs attorneys are seeking, at least in part, to determine whether the law was passed with a racially discriminatory purpose, according to court documents.
Daniel Bell, an attorney for the lawmakers, argued that much of the requested information could be obtained from sources such as legislative committee records.
“Overwhelmingly, we think most of the evidence would be available publicly,” Bell told the panel.
The law, which drew at least four federal-court challenges, seeks to restrict how race-related issues can be addressed in higher education and in workplace training.
The law lists a series of race-related concepts and says it would constitute discrimination if students are subjected to instruction that “espouses, promotes, advances, inculcates or compels” them to believe the concepts.
As an example, the law labels instruction discriminatory if students are led to believe that they bear “responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin or sex.”
As another example, the law seeks to prohibit instruction that would cause students to “feel guilt, anguish or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin or sex.”
The subpoena fight is playing out in a lawsuit filed by instructors and a student from six universities. Walker in November issued a preliminary injunction against the law in that case and another challenge, finding that the law violated First Amendment and due-process rights.
The state has appealed the preliminary injunction to the Atlanta-based appeals court, but parts of the case also have continued before Walker.
The three-judge panel, which also was made up of Chief Judge William Pryor and Judge Jill Pryor, did not indicate Tuesday when it could rule on the subpoenas issue.
The subpoenas were issued to 13 co-sponsors of the bill — Rep. Melony Bell, R-Fort Meade; Rep. David Borrero, R-Sweetwater; former Rep. Juan Alfonso Fernandez-Barquin, R-Miami-Dade County; Rep. Randy Fine, R-Brevard County; Rep. Randy Maggard, R-Dade City; Rep. Ralph Massullo, R-Lecanto; Rep. Stan McClain, R-Ocala; Rep. Toby Overdorf, R-Palm City; Rep. Bobby Payne, R-Palatka; Rep. Rick Roth, R-West Palm Beach; Rep. Jason Shoaf, R-Port St. Joe; Rep. Tyler Sirois, R-Merritt Island; and Rep. Keith Truenow, R-Tavares — and Rep. Alex Andrade, R-Pensacola.
