Published: December 2024

By: Bryan Anderson

Imagine private employers, with a diverse employee population, that are committed to treating all of their employees fairly in hiring, pay and promotion and wanting to combat institutional racism and sexism. To this end, the employers want to institute a formalized diversity, equity and inclusion (DEI) training program that will cover topics including advancing women in business, as well as understanding gender expansiveness and institutional racism. The employers want to encourage employees to be open to this information, to reflect upon it, and to be attentive to biases in hiring, pay and promotion decisions. These were the intentions and plans of Honeyfund.com, Inc. and Primo Tampa, two Florida companies.

Is mandatory training like this something employers should be allowed to do if they choose, or should it be prohibited?

Florida’s Stop WOKE Act Prohibited Anti-Racism Training

In 2022, Florida answered this question in favor of prohibiting such training by enacting the “Individual Freedom Act”, referred to as the Stop WOKE Act.  It was one of several laws enacted in 2022 as part of the Governor DeSantis’s and Legislature’s efforts to define and prohibit “woke ideology.”  

For some, the term “woke” describes awareness particularly about history, oppression, and social justice issues.  For others, “woke” is a pejorative expression used to denounce progressive action and certain teachings about race.

Florida’s governor championed the “Stop WOKE Act” as standing up against what he called “indoctrination.”  He frequently referred to the law during his ultimately unsuccessful run for president, with the slogan that Florida was where “woke goes to die.”

How Florida’s Law Defined and Prohibited a Specific Viewpoint on Racial Justice

Without discussion of the actual prevalence or demonstration of any harms caused by anti-racist employee training, Florida’s Governor and Legislature decided it was a problem that had to be solved and acted to prohibit such.

The Florida state government’s intention to prohibit employers from teaching employees this specific point of view is clear on the face of the statute.  The law prohibits mandatory training or instruction by employers on eight concepts involving race and racial equity, including the concept of affirmative action as a remedy for racial discrimination.  The law does not, on the other hand, prohibit training that advocates against the racial equity concepts.

The Employee Training “Stop WOKE” Provisions Violate the First and Fourteenth Amendments

During August 2022, in the matter of Honeyfund.com, Inc. v. DeSantis, 622 F.Supp.3d 1159 (N.D. Fla. 2022), Chief Judge Walker of the U.S. District Court for the Northern District of Florida issued a preliminary injunction blocking the state from enforcing the “Stop WOKE” Act’s prohibitions on mandatory workplace activities and trainings, agreeing with the Honeyfund and the other plaintiffs that the Act “discriminates on the basis of viewpoint in violation of the First Amendment and is impermissibly vague in violation of the Fourteenth Amendment.” Id. at 1185.

Appealing the injunction order to the U.S. District Court of Appeals for the 11^th Circuit, the State of Florida took the position that the Stop WOKE Act provisions at issue did not improperly regulate speech, but rather prohibited unlawful conduct defined as mandatory employee meetings expressing anti-racist viewpoints listed in the statute.  The state disputed that the law violated speech rights, saying that it regulated “conduct.” Florida said businesses could still address the targeted concepts in workplace training — but couldn’t require employees to take part.

The 11^th Circuit issued its decision in Honeyfund.com Inc. v. Governor, 94 F.4th 1272 (11th Cir. 2024) on March 4, 2024 upholding the district court’s preliminary injunction order.  The court wrote that “[t]his is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law and public policy.”  Id. at 1275. The court further stated “[a]nd it is not the first time that these disagreements have seemed so important, and their airing so dangerous, that something had to be done. But now, as before, the First Amendment keeps the government from putting its thumb on the scale.” Id.

The 11^th Circuit rejected the state’s claims that it sought to regulate conduct rather than a viewpoint expressed in speech.  It described the law as the “latest attempt to control speech by recharacterizing it as conduct. Florida may be exactly right about the nature of the ideas it targets. Or it may not. Either way, the merits of these views will be decided in the clanging marketplace of ideas rather than a codebook or a courtroom.” Id.

The court wrote that “[b]y limiting its restrictions to a list of ideas designated as offensive, the act targets speech based on its content.  The court continued, “[a]nd by barring only speech that endorses any of those ideas it penalizes certain viewpoints – the greatest First Amendment sin.” Id. at 1277.

On remand in July 2024, Chief Judge Walker granted a permanent injunction against enforcement of the Stop WOKE Act’s workplace training provisions. The order granting the injunction states that the law “violates free speech rights under the First and Fourteenth Amendments to the US Constitution.”

The permanent injunction ended several years of uncertainty for Florida employers, employees, attorneys and consultants engaged in diversity, equity and inclusion training.  Honeyfund.com, Primo Tampa, LLC and other Florida employers are now free to provide such training without fear of being found in violation of Florida law.

Alabama?!  Why not a nice beachside hotel or an Orlando resort?  People were puzzled.  Why had I chosen the civil rights sites in Alabama as the destination for the annual retreat of the ADR Section of The Florida Bar?  My explanation came from the heart: voluntary bar organizations can and should do more to offer members deeper shared experiences that teach, inspire, connect and renew.  So, in September, fifteen of us set out on a four-day trip to Montgomery, Birmingham, and Selma.

Day 1, Montgomery.  Our trip began at Dexter King Memorial Church, where Rev. Dr. Martin Luther King, Jr. served as pastor from 1954 to 1960.  Our guide was the Hon. Vanzetta Penn McPherson,[1] a retired federal magistrate judge and a member of the congregation.  Judge McPherson wove her own story as a child in Montgomery with deep love of her church and her knowledge and passion for the law into an unforgettable experience.

Day 2, Birmingham.  We walked through Kelly Ingram Park, where in 1963, marchers—including the young marchers of the Children’s Crusade—were attacked by police with tear gas, dogs, and water cannons.  Our tour of the Birmingham Civil Rights Institute (BCRI) provided a history lesson on national and local events.  Over a delicious BBQ lunch, our historian-guide, Mr. Charles Woods III, facilitated a thought-provoking discussion about the difference between being “non-racist” and “anti-racist.”[2]  Our day concluded with a tour of the 16th Street Baptist Church.  Its 1963 bombing killed four little girls, and the horrified response helped drive the passage of the 1964 Civil Rights Act.  Three members of the Ku Klux Klan were convicted, but justice took years; one man was found guilty of the bombing in 1977 and two more were convicted in 2001.[3]

Day 3, Selma. Together, we walked across the Edmund Pettus Bridge, the launch point for the five-day Selma to Montgomery march and site of Bloody Sunday, March 7, 1965, where marchers were attacked by police and firefighters with water cannons and dogs.  Next year will mark the 60^th anniversary[4] of this pivotal event.

That afternoon, we visited the Equal Justice Initiative’s (EJI) “Legacy Sites,”[5] an incredible, internationally recognized museum complex consisting of the Legacy Museum, the National Memorial for Peace and Justice, and the Freedom Monument Sculpture Park.  The Legacy Sites connect the terror and injustice of slavery, lynching, segregation, and mass incarceration, with a powerful belief that reconciliation and healing require truth and justice.  “[The Legacy Sites are] a must see for any lawyer who believes in the rule of law and the promises in our Constitution,” said Ret. Judge Lester Langer.  The most powerful elements of the Legacy Sites highlight the moments where the promises of the 13^th, 14^th, and 15^th amendments of the Constitution were not upheld.  Included in the Memorial were the names of two men lynched in Palm Beach County:  Henry Simmons (June 7, 1923) and Samuel Nelson (September 26, 1926),[6] along with jars of soil from the sites here in our county where they were murdered.

On our final morning in Montgomery, we had the privilege of viewing the city through the eyes of Wanda Battle.  Now 68 years old, Ms. Battle grew up in West Montgomery and was a child during the civil rights era.  Among her neighbors were Rosa Parks, the local NAACP’s Secretary and seamstress whose arrest in 1955 inspired the organization of the Montgomery Bus Boycott, which catapulted the 26-year-old Dr. King into leadership, lasted 381 days and involved around 40,000 members of the community. Ms. Battle also shared her personal history of “the aftermath” when her family was displaced in the 1970s by urban renewal, their home purchased for $3,500 and destroyed by the construction of a highway routed through West Montgomery.  With a deep generosity of spirit, she guided us through a conversation about how we each experience segregation in our own lives, and when we connected with people beyond our own community.

Travel can be transformative, and plant seeds that grow for the rest of our lives. Ashlee Pouncy, who travelled with her mother, said “[T]here is no comparison to standing in the place where history was made[. …] This trip was more than a retreat, it was a lesson in finding a way forward, even when it seems impossible – a valuable lesson for all ADR professionals.”

The ADR Section plans to organize this trip on an annual basis. It will be open to any member of the Bar who wishes to participate.

Ana Cristina Maldonado is the 2024-2025 Chair of the ADR Section of The Florida Bar.  A full time neutral for 13 years, she is currently Associate Professor at Nova Southeastern University’s Shepard Broad College of Law.

[1] https://www.almd.uscourts.gov/oral-histories-profiles/judge-vanzetta-penn-mcpherson

[2] A non-racist believes in the equality and rights of all races but looks away when injustices occur, or derogatory language is used against blacks or non-whites. An anti-racist calls out that behavior and seeks to change it.  Woods challenged us to be anti-racist and to speak out.

[3] A 2017 panel with the attorneys who prosecuted the 16^th Street Church bombing is available at https://www.youtube.com/watch?v=oiGf1RCvguw

[4] https://www.selmajubilee.com/

[5] https://legacysites.eji.org/

[6] https://pbcremembrance.org/history.htm