JACKSONVILLE, Fla. – At the heart of a lawsuit filed July 25 against the school boards in Duval, Orange, Palm Beach and Indian River counties, is the concept that a law cannot be valid if there’s no objectively consistent way to follow, enforce or even define it.
The lawsuit argues that a new state statute resulting from House Bill 1557, -- which was titled the ‘Parental Rights in Education’ bill by supporters and nicknamed the “Don’t Say Gay” bill by some critics, -- was built upon a foundation of ill-defined terms and subjective ideas including “well-being,” “appropriate,” “gender identity” among others.
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The conversation echoes that which surrounded a 1972 decision from the U.S. Supreme Court in the case of Papachristou v. City of Jacksonville. In that case, the court ruled the city’s vagrancy ordinance was unconstitutionally vague.
The suit was filed on behalf of eight defendants who had been arrested under the ordinance - which outlawed 20 different types of “vagrancy.”
“Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses.”
Jacksonville, Fla., Ordinance Code § 26-57 [RULED VOID]
“It is really impossible to read the legislation and be able to put any definite meaning on virtually anyone of the various subparts,” said attorney Samuel Jacobson, who argued before the Supreme Court against the ordinance.
Jacobson said that earlier case law had established that any law imposed on people must pass three tests, which News4JAX has paraphrased for clarity:
- The law must be clear enough so that the people know how to follow it.
- The law must also be clear enough so that those charged with enforcing it can do so consistently.
- The law can’t be so broad that it causes people to shy away from exercising their rights, for fear of accidentally violating it.
This is how Jacobson put it in his argument before the Supreme Court on December 08, 1971:
“It would seem to us that the requirement that there be definiteness in a criminal statute or a statute of this sort, really is necessary for basically three functions.
One, to provide notice to affected persons, two, to provide ascertainable standards of enforcement for the people who are charged with enforcement and, three, to provide a breathing space or to eliminate chill with people who would wish to exercise preferred rights or constitutionally guaranteed rights.”
Samuel S. Jacobson, December 08, 1971 [Papachristou v. City of Jacksonville]
The supreme court’s decision was handed down on February 24, 1972, which unanimously ruled that the ordinance was both too vague to be constitutionally sound and placed far too much discretionary arresting power in the hands of police.
“The Jacksonville vagrancy ordinance, under which petitioners were convicted, is void for vagueness, in that it ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,’ it encourages arbitrary and erratic arrests and convictions, it makes criminal activities that, by modern standards, are normally innocent, and it places almost unfettered discretion in the hands of the police,” Associate Justice Supreme Court Justice William Douglas wrote as the opinion.
Similarly, in the lawsuit over HB 1557, the plaintiffs argue that the law effectively discourages -- or “chills” -- conversations in schools about gender identity and sexual orientation, aspects of humanity that some inaccurately describe as “liberal ideologies.”
Florida’s Attorney General Ashley Moodey asked a U.S. District Judge to toss out the constitutional challenge, arguing that the state has the right to set curriculums for public schools.
“Falsely dubbed by its opponents the “Don’t Say Gay” bill, HB 1557 is nothing of the sort,” the state’s motion said. “Far from banning discussion of sexual orientation and gender identity, the legislation expressly allows age- and developmentally appropriate education on those subjects. Consistent with that modest limitation, the law prohibits classroom instruction on sexual orientation and gender identity for the youngest children, neutrally allowing all parents, no matter their views, to introduce those sensitive topics to their children as they see fit.”
The state’s motion failed to address the lack of definition in the law, nor did it address concerns over the litigious environment that vagueness creates. Plaintiff argues the law’s intent and its effect are clear.
“HB 1557 piles one [constitutional] violation on top of another,” the lawsuit said. “It offends principles of free speech and equal protection by seeking to censor discussions of sexual orientation or gender identity that recognize and respect LGBTQ people and their families. It offends due process by using broad and vague terms to define its prohibitions – thus inviting discriminatory enforcement and magnifying its chilling effect on speech. And it arises from discriminatory purposes and outdated sex-based stereotypes that offend deeply rooted constitutional and statutory requirements.”
Like in the Papachristo case, which the court found gave police officers too much discretionary arresting power, plaintiffs suing over HB 1557 law say it places far too much discretionary power in the hand of parents to sue the district. The result of which is a school environment shaped by the family principles of the most restrictive parent in that school, as a means of avoiding a costly lawsuit on the taxpayer’s dime.
On Monday, the Judge overseeing the case against the four school districts recused himself and a new judge was assigned. No court dates or hearings are scheduled as of the publication of this article.