Plaintiffs challenging a new Florida law that limits discussion of certain gender and race issues in higher education classes cannot subpoena state lawmakers to determine their motives in approving the measure, a federal appeals court decided.
The 11th Circuit Court of Appeals ruled on Oct. 30 that the plaintiffs who oppose the Stop WOKE Act – seven professors and a student from several universities – cannot subpoena the state legislators because the elected officials have a legislative privilege, or immunity, from the discovery requests.
The plaintiffs, who are represented by the ACLU of Florida, had argued the state law, also called the Individual Freedom Act, violated the Ku Klux Klan Act, which was enacted during the later half of the 19th century but is still used widely to protect citizens from possible civil rights violations by local and state governments. They wanted to subpoena 14 lawmakers who are not party to the lawsuit for documents and records in order to determine whether their support for the law was racially motivated.
The state lawmakers, however, argued that the subpoenas amounted to a fishing expedition.
The appeals court panel found that the lawmakers’ common-law immunity against such legal actions prevailed in this case, even though the Ku Klux Klan Act (Section 1983 of the U.S. Code) has been used extensively in civil rights lawsuits, including disputes over free speech, religious freedoms, the right to bear arms, equal protection under the law and due process.
“Because factual documents are within the scope of the privilege, which is unqualified in this kind of lawsuit, we reverse and remand with instructions to quash the subpoenas,” the 11th Circuit panel said in a 2-1 decision authored by Chief Judge William Pryor.
An ACLU of Florida staff attorney, Jerry Edwards, called the ruling an outlier among the nation’s federal appeals courts and overly broad.
“We are disappointed in the decision,” Edwards told the Florida Record. “And while it certainly makes it harder to prove claims, especially equal protection claims, there are alternative pathways for us to try to access at least some of the documents we were seeking from the Legislature.”
With the plaintiffs’ discovery powers limited by the appeals court, Edwards said plaintiffs’ attorneys would turn to other avenues, such as the Florida Public Records Law, to determine lawmakers’ frame of mind in passing the Stop WOKE Act.
“The better thing in Florida is we do have, at least for now, a robust public records law,” he said.
The plaintiffs’ attorneys are also considering an en blanc appeal to the full 11th Circuit to challenge the panel’s 2-1 decision on subpoenaing lawmakers, according to Edwards.
“We are considering asking the entire 11th Circuit to review whether the decision of the two judges’ opinion … is appropriate," he said.
More than a dozen states have enacted laws that restrict discussions by educators and students about issues surrounding race and gender in classrooms, according to the ACLU. Some of these issues have been tied to what state lawmakers call “critical race theory.”
In a dissent, Circuit Judge Jill Pryor pointed out that the majority opinion considers the legislative privilege absolute based on the circumstances of the Florida lawsuit.
“In so holding, the majority opinion adopts the outlier position that the legislative privilege never yields in cases arising under 42 U.S.C. 1983, the paradigm federal civil rights statute,” Pryor said. “I disagree because the Supreme Court has instructed that the legislative privilege held by state legislators is a qualified one: It may yield in the face of important federal interests.”