You'd think our Glorious Union has had enough of laws seeking to dictate what is or is not taught in public schools. The infamous Butler Act, adopted by the State of Tennessee nearly 100 years ago, led to the Scopes Trial, which led to the humiliation of William Jennings Bryan (and possibly his death mere days after the trial concluded) by Clarence Darrow, to some blistering articles by H.L. Mencken, and made the United States the laughing-stock of a good portion of the Western World, is perhaps the most notable law which sought to do so in modern times. Or at least it was, until recently.
The Butler Act at least had the virtue of clarity. That law stated in pertinent part "[t]hat it shall be unlawful for any teacher in any of the universities, normals and all other public schools of the State which are supported, in whole or in part, by the public school funds of the state, to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals." I know, the use of the word "story" in the law is amusing. The legislators of Tennessee were apparently unaware of the implications of that word.
But now the State of Florida has adopted a law which similarly seeks to regulate what takes place in classrooms, which not only lacks clarity but seems to flaunt its vagueness. This is the so-called "Don't Say Gay" law, officially Florida SB 1834." It states, also in pertinent part:
"A school district may not encourage classroom discussion about sexual orientation or gender identity in primary grade levels or in a manner that is not age-appropriate or developmentally appropriate for students. A parent of a student may bring an action against a school district to obtain a declaratory judgment that a school district procedure or practice violates this paragraph and seek injunctive relief. A court may award damages and shall award reasonable attorney fees and court costs to a parent who receives declaratory or injunctive relief."
Defenders of the law like to point out that it provides that discussion of sexual orientation or gender identity is only contrary to the law in kindergarden to third grade, according to its terms ("primary grade levels"). Who would object to that, really? I doubt anyone does. But that's not all the law says. It also says discussion of such topics may not be encouraged "in a manner that is not age-appropriate or developmentally appropriate for students." So, the law clearly applies to students of other grade levels.
A reading of the law raises several serious questions:
How does one encourage classroom discussion? Must the discussion take place in a classroom for the law to be violated, and a cause of action arise? What is "sexual orientation or gender identity"? Does the fact that the law refers to a "school district procedure or practice" indicate that encouragement (whatever that may be) by a single, "rogue" teacher or other school district employee (a janitor?) wouldn't be actionable? Is it necessary that a policy or procedure, sanctioned by the school district expressly or by implication, as an entity, exist? What do "age appropriate or developmentally appropriate" mean? Is that left to the courts and the lawyers who litigate claims to decide? Just what kind of damages are available to a parent in the action created by this law?
What is "age appropriate or developmentally appropriate" is clearly subjective, and would vary from student to student. Florida's legislature probably gave parents the right to sue under the law in an effort to avoid enforcement of the law being considered "state action" for constitutional purposes. But that would leave interpretation of the law undetermined until precedent could be established through the courts, and that won't happen anytime soon. In the interim, school districts and teachers will be justly terrified of being sued by some parent or another who thinks wrong words are being spoken in classrooms. They may therefore be inclined to take fairly drastic steps to avoid litigation, e.g. refusing to require the reading of any books the subject matter of which involve sexual relations, prohibiting the use of certain words in classrooms, disciplining teachers, etc.
In short, it's a shoddy law, and will be difficult and expensive to implement. The cynic in me wonders if the law was adopted purely to discourage talk of sex in the classroom, especially talk of particular kinds of sex. Sex is something which has always frightened Americans, especially when it comes to the task of making children aware of it. I think most of them would like if others had that task. It may even be, ultimately, a form of posturing by politicians, always interested in obtaining popular support (at least when it doesn't interfere with monetary gain).
The law is alleged to be one protecting parental rights. But do parents have a legitimate interest in making certain their children under the age of majority don't hear certain words of learn what other people are in terms of gender or sexual orientation? Is it possible, indeed, that they think students won't otherwise learn of such things or speak about them unless they're "encouraged" to do so by teachers? Only a fool would think that.
For my part, I think most parents are detriments to education, generally speaking. They recognize that basic skills such as reading, writing and 'rithmatic (as the old song goes) must be acquired, though they probably would prefer that the use of the legendary "hickory stick" be reserved to themselves. But otherwise, I think the preference of most is that their children think like them, be like them, talk like them and act like them until they become adults, at which time parents can claim that they're beyond their control and influence. The sad fact is that most parents would prefer that their children not learn more than their parents have, at least in cultural or social matters in my opinion, and it may be that this law is an expression of that fact.
Justice itself isn't blind, but the law is, in the sense that the law may be good or bad, wise or stupid. This particular law is stupid. But it is a law nonetheless, just as the Butler Act was law, and may wreck all the havoc it did, and more.
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