Limiting lessons: Alexander Chen of Harvard Law’s LGBTQ+ Advocacy Clinic says Florida’s Parental Rights in Education bill likely will face First Amendment and Equal Protection Clause challenges

Professor Chen, founding director of the LGBTQ+ Advocacy Clinic, spoke with Rachel Reed of Harvard Law Today about the effects, and legal limitations, of the Florida bill. The original copy of this interview published in Harvard Law Today can be found here.

Harvard Law Today: What is this bill about? What does it say?

Alexander Chen: It’s being called the “Don’t Say Gay” bill, which is a catchy title, but a little misleading because there are two different important components to it. One component is curricular, and what it actually says is a little confusing. In the preamble, it says that from kindergarten through third grade, you can’t discuss sexual orientation or gender identity in the classroom. And then the legislative text says you can’t “instruct” on sexual orientation or gender identity. And beyond third grade, you can’t discuss those things in a manner that is not “age appropriate” or developmentally appropriate for students.

I think it’s impossible to understand what’s going on in this component without understanding that historically one of the ways in which LGBT people have been discriminated against is this idea that their identities, or their lived experiences, are sexual or inappropriate in some way. It’s this fundamentally homophobic and transphobic idea of “don’t flaunt it.” What they mean is that it’s somehow inappropriate to talk about being gay or lesbian or bisexual or transgender because you’re talking about sex. That’s why for many years, it was impossible to be out as gay in the teaching profession. The idea was that if you were openly gay, it was inappropriate, coming from the pernicious narrative that gay people were pedophiles or in some way grooming children. Of course, it’s not about sex, per se. It’s about the fact that this is your lived experience. You want to be able to talk about your life openly in the same way that others can. And that just puts people in the position where they can never really be their full selves, and they’re afraid of revealing to other people who they are because they could be seen as being inappropriate.

I’m not sugarcoating this, because the reality is that the way that opponents of LGBT rights have talked about this has been really ugly. I will also say that this is not unique to the LGBT community — using narratives of sexual threat to oppose the civil rights of a minority group is a really common playbook in American history. It was weaponized to prevent African Americans from doing things like sharing swimming pools and rest rooms with white people.

HLT: You mentioned that there is a second component to the law.

Chen: There is also a parental notification piece. The bill says that the school has to adopt procedures for notifying parents if there’s a quote “change in the student’s services or monitoring related to the student’s mental, emotional, or physical health or well-being and the school’s ability to provide a safe and supportive learning environment for the student.” What that actually means is, if a kid tells the school that they’re getting bullied by other kids for being LGBT — maybe they’re being called the “f” word — that implicates the school’s ability to provide a safe and supportive learning environment, and they have to tell the parent.

This is a problem because if a kid is getting bullied at school because they are LGBT, and their parents are not supporting them, now they can’t tell the school either, because they’ll know that the school will have a statutory responsibility to tell their parents. It is legitimating anti-LGBT bullying. The school can no longer just make a safe space for a student, because the bill is expressly designed to make sure they can’t do that. The bill also prevents schools from adopting any procedures or student support forms that prohibit school district personnel from notifying a parent about his student’s mental, emotional, or physical well-being.

To make this explicit, the bill says parents can make the school tell them what their policies are, and if the school doesn’t respond within a certain timeframe, the state may appoint a special magistrate to go and investigate the school and report back. Parents can also sue the school for damages and attorney fees. It is empowering parents to go after the school districts. The whole thing is designed to silence and intimidate, to create a culture of fear for educational professionals who want to support LGBT kids, and for the kids themselves who will feel like there is no one they can go to for help. It’s really about forcing LGBT youth back into the closet.

HLT: There is some controversy over whether the bill prohibits “discussion” or “instruction” of sexual orientation in classrooms, because as you mentioned, both words are included in the current version of the bill. Why might this distinction matter?

Chen: It’s entirely possible that the lack of distinction between the “discussion” and “instruction” language is just a mistake. But I think that the other explanation is that it’s designed to sow confusion and fear. Because “discussion” means you can’t say that a famous historical figure was gay. You can’t even mention it. It discourages people from talking about LGBT history or literature or facts that are relevant. One of the things that contributes to a sense of invisibility for LGBT students and other LGBT people, is not seeing LGBT people as part of the fabric of American history. When you pretend that LGBT people don’t exist or are not an important part of our history, it contributes to LGBT young people feeling like they have no place, and that they are not legitimate.

Studies show that LGBT youth have higher rates of depression and suicidality and anxiety, but also that when they are affirmed by their families and by society, they have developmental outcomes that are equivalent to their non-LGBT peers. The effect of this law will be to decrease the chances that a kid who does not have support at home finds that one person to talk to at school about themselves and what they’re experiencing. Because where are you going to meet an adult who’s affirming you, if not at home or at school?

HLT: What kind of legal challenges could this bill face, now that it’s been signed by Gov. DeSantis? How are courts likely to think through these arguments?

Chen: There are a couple different challenges to the various components of the law. I think there are serious First Amendment concerns with the way that this bill would limit the ability of educators to make a determination of what is appropriate education for young people. Educators’ rights are a complex topic and historically there have been a number of different cases about what teachers can or cannot teach. Different circuits have different standards for how they look at this question, because there’s a balance between considering the school’s interest in being able to control the curriculum versus the teacher’s. Regardless, we have a strong concern in our constitutional tradition against governmental censorship, and for academic freedom and the free exchange of ideas. In Tinker [v. Des Moines], the Supreme Court said that students in school had a fundamental right to express themselves in a way that was not disruptive to other students. There’s also dicta in that case which says teachers have some right to expression as well.

There are a number of cases about teachers and what kinds of things they can teach, and there is not an absolute right to teach whatever they want. But at the same time, we are concerned as a nation with government attempts to stifle speech. We, as a free democratic society, need the free exchange of ideas, and we need for those ideas to be shared in the classroom, so that students can learn how to deal with competing ideas. I think it is fundamentally an unconstitutional approach to try to regulate educators in this way when the topics we are talking about are not something like obscenity — with this bill, we’re talking about people’s lived identities and an important part of the American community.

I also want to mention that there are some complexities of how a First Amendment challenge would actually unfold in the courts, since the 11th Circuit [where Florida is located] and the Supreme Court are relatively conservative at the present time. But I think as a normative matter, if you look at the arc of our First Amendment jurisprudence, and what values it’s supposed to serve, this is completely unconstitutional.

HLT: What other legal challenges do you anticipate?

Chen: There’s also a very strong argument that these bills are unconstitutional because they violate the Equal Protection Clause. There is a strong body of law that says that when laws are passed out of a sheer desire to harm a particular group, or out of animus towards that group, it is unconstitutional. Take Romer v. Evans, for example, where the Supreme Court invalidated a Colorado constitutional amendment that prevented gays, lesbians, and bisexuals from being able to get civil rights protections at the state level. The Court said it had been passed solely out of a desire to harm those groups.

Proponents of this law will argue that there is some legitimate reason why children should not be taught these things or why parents should be allowed to find these things out about their children. But at the same time, I think there’s a lot of evidence in the legislative history here that shows the bill is primarily motivated by politically-driven animus. That’s a very strong argument for why it’s unconstitutional.

Another challenge to the law could be on privacy grounds, and this relates to the student support component. This piece is trickier, because historically there has been tension between the ways courts have balanced the fundamental rights of parents to direct their children’s upbringing with a student’s right to privacy. There is at least one case from a lower court that has recognized that the Constitution protects against forced disclosure of a person’s sexual orientation. And I think that there is doctrinal basis for the idea that students have some privacy rights. But there is also caselaw that says that the school has to tell a parent why their child is being punished, and that might conflict with the student’s own privacy interests. There’s not a clear cut way this challenge would go; I would say that this is a developing area of the law.

HLT: You mentioned this tension between parental rights and children’s rights. Can you say more about that?

Chen: As a practical matter, children can’t sue by themselves. So in practice, who’s going to sue on their behalf? It’s their parents. I think that is the structural reason why our jurisprudence has historically focused on parental rights. The other thing I’ll say is that the parental rights component has been important to LGBT advocates in some cases. For example, a number of national groups have sued to stop Texas Governor Greg Abbot’s order [to open abuse investigations into parents who affirm their transgender children]. It has been temporarily enjoined, and the state courts have said there’s a really strong chance that it’s unconstitutional because it interferes with parental rights. That’s an example of a way in which this parental rights argument is being used to protect trans youth.

HLT: Are there any historical precedents for this type of law?

Chen: One case I’d mention is Meyer v. Nebraska, which involved a Nebraska law that prohibited the teaching of foreign languages. This was during World War I, when anti-German animus was really strong. The Supreme Court said this violated the Fourteenth Amendment, because there was interference not only with the teachers, but also the opportunities of students to acquire knowledge, and the power of parents to control the education of their own children. Another historical analogy is prohibiting teaching of communism and Marxism in the context of the McCarthy era.

Broadly speaking, curricula wars are a really prominent feature of fights over education in our country, because it is essentially fighting over the future. If you can affect what kids learn, then you can affect how they act going forward.

But the reason that we have a balance of powers and a judiciary and a Constitution is that they are supposed to be a bulwark against those kinds of passions overtaking our ability to sustain the systems that allow us to have the government that we have. I’m not saying that means that teachers can teach absolutely anything they want. It’s that I think that we should allow the profession of education to decide and police itself about what is appropriate.

And one final thing I just want to add about all this — for some of us, this law flashes us back to being 11 years old and trying to figure out who we are. The proponents of this law want kids to not be exposed to LGBT history and historical figures because they believe it makes kids gay — but studies show that they already know that they are gay or trans or bisexual or lesbian at a young age. And those kids are looking for something that tells them that they’re okay, that their life is going to be okay, that there is nothing wrong with them. This bill, and ones like it, are trying to remove every possible source of support and comfort for those kids.