ATLANTA (CN) — A group of university students and professors argue Florida's new law dubbed the Stop Woke Act is intentionally discriminatory. They want to subpoena 14 Sunshine State lawmakers in hopes of showing what they say were the true motivations behind the law.
A federal judge refused to quash those subpoenas earlier this year, but the lawmakers are fighting back, arguing they shouldn't have to produce the requested documents under the principle of legislative privilege. A panel of the 11th Circuit, which heard arguments in the case on Tuesday, could ultimately decide whether the documents are released.
The legal challenge comes amid separate litigation involving the law whose official name is the Individual Freedom Act. Signed by the governor last year, the legislation would restrict how employers and educators discuss race, gender and inequality. Chief U.S. District Judge Mark Walker issued a November order, however, that temporarily blocked portions of the law from being enforced in public universities, calling it “positively dystopian.”
Florida is appealing and asked to enforce the law in the meantime. An 11th Circuit panel turned it down in March.
The professors and students who want to subpoena various government officials have argued the information could show that members of the Florida Legislature enacted the law for a racially discriminatory purpose, in violation of the First and 14th Amendments.
They seek communications about the law between the lawmakers and other officials, including fellow members of the state Legislature, Republican Florida Governor Ron DeSantis and the right-wing activist Christopher Rufo. A trustee at the New College of Florida, Rufo is credited with helping to create the debate around critical race theory.
Communications discussing critical race theory, Black Lives Matter and racial justice protests were also requested in the subpoenas, as well as committee reports, studies, draft bills and documents evaluating the law, all of which were reviewed by legislators.
A panel of the 11th Circuit met in Atlanta on Tuesday to hear arguments from the lawmakers fighting back against these information requests.
Florida Chief Deputy Solicitor General Daniel Bell told the judges that the subpoenas "misapprehended the scope of the members’ legislative privilege," a legal principle which shields legislators from indirect liability for their actions in proposing, formulating and passing laws.
“Legislators are immune from inquiry into legislative acts and the motive for them,” Bell told the panel — and yet "the sole purpose of the subpoena[s] here was to explore the legislators’ motive in passing the challenged law.”
He pointed to In re Hubbard, a 2015 decision in which the 11th Circuit found legislative privilege exempted Alabama lawmakers from subpoenas probing their motivations for an ethics and payroll law. This precedent, according to Bell, showed that "none of the documents" involved in this case were "outside the scope of the privilege.”
Jerry Edwards with ACLU of Florida urged the panel to affirm the ruling that authorized the subpoenas. Edwards said the privilege was "qualified, not absolute," and that "important federal interests" — in this case, concerns about possible constitutional violations — could overcome the privilege.
“We have plaintiffs seeking to vindicate public rights, not just their own personal private rights," Edwards said. "They’re seeking to vindicate the rights of thousands of Floridians." Edwards acknowledged it was "rare" for court orders to pierce legislative privilege but argued the record in this case justified the move.
The 11th Circuit panel did not indicate when it would issue a decision in the case. During the Tuesday hearing, however, at least one judge on the panel seemed skeptical of Edwards’ arguments.
Chief U.S. Circuit Judge William Pryor suggested that there may not be legal precedent for Walker’s effort to balance the lawmakers’ privilege against the federal interest.
Allowing lower courts to apply a balancing test here could "eviscerate" legislative privilege, the George W. Bush appointee added. He said this was exception was not justified by any "reported decision of either the [U.S.] Supreme Court or any court of appeals."
Even without the subpoenaed documents, the plaintiffs could cull publicly available sources for evidence. In court Tuesday, Bell noted that the information ordered up by the subpoena is “overwhelmingly” public already and argued lawmakers should not have to produce it themselves.
Pryor suggested the court could take public statements by lawmakers into account for its ruling. Edwards protested, saying it would be “extraordinarily difficult” to show legislators knew the law would be discriminatory "without being able to show the factual information before the legislators at the time they made their decision."
In another hint of how the 11th Circuit might ultimately rule, Pryor pushed back on this argument. The "subjective motivation of the lawmakers" was circumstantial evidence, he said, and "precisely what [the precedent in] Hubbard said you don’t get."
Pryor was joined on the three-judge panel by U.S. Circuit Judge Jill Pryor, a Barack Obama appointee. U.S. District Judge L. Scott Coogler, another George W. Bush appointee, sat on the panel by designation from the U.S. District Court for the Northern District of Alabama.
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