The Problem With DeSantis' 'Stop WOKE' Act

Our institutions have been infected by "the woke mind virus," Florida Gov. Ron DeSantis (R) told an audience at the National Conservatism conference in Miami this September. "Some of these big corporations are now exercising quasi-public power."

Is it time to fight fire with fire? To wield government power to stop a dangerous ideology from destroying America's vital institutions? DeSantis thinks so.

"We're not just going to sit idly by if you're trying to circumscribe people's freedoms," he said in the same speech. "And that's true if it's government. It's also true if it's big business."

DeSantis, a likely presidential candidate and favorite of the conservative movement, seeks to jettison the libertarian idea that the government shouldn't meddle in the affairs of private business.

Earlier this year, DeSantis and Republicans in the Florida Legislature retaliated against Disney for opposing a state law prohibiting the discussion of sexuality and gender identity in kindergarten through third-grade classrooms. Critics attempted to make the new education law a national issue and dubbed it the "Don't Say Gay Act," and DeSantis' communications team responded by routinely calling the law's critics "groomers."

Now DeSantis, who declined our interview request, has signed into law the Individual Rights Act, which he formerly referred to as the Stop WOKE Act.

A U.S. District Court judge struck down part of the law on First Amendment grounds. That portion of the law prohibited private companies from holding any mandatory training that "espouses, promotes, advances, inculcates, or compels [employees] to believe" eight concepts, such as that "members of one race, color, sex, or national origin are morally superior to members of another race, color, sex," and that your inherent characteristics make you "inherently racist, sexist, or oppressive."

It also banned trainings that promote the idea that these characteristics determine one's moral status as privileged or oppressed or mean that you bear personal responsibility for past injustices, that concepts like "merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist," or that trying to be colorblind and treat people without regard to race is wrong.

Banning workplace trainings that tell people that their race or sex makes them morally culpable might sound reasonable to many Americans. A recent Rasmussen poll found just 29 percent of Americans think corporate diversity trainings actually improve race relations.

But opponents say laws banning a broad set of ideas set a dangerous precedent.

The state made the concepts "seem terrible," says Jerry Edwards, a staff attorney with the American Civil Liberties Union of Florida, who is challenging a separate part of the law that applies to universities. He calls the bill a "wolf in sheep's clothing" because anytime a government bans broad categories of speech, it gives politicians the ability to define the terms of acceptable discourse. This, he says, should be concerning to Americans of all political stripes.

"If you're a person who's conservative and you agree with the idea that that affirmative action is wrong, if you give the state the power to say that you can only hold that belief, you also give them the power to say that you can't hold that belief," says Edwards. "We can't allow the state this power to regulate speech."

The left also craves state power to impose its cultural preferences. Nation writer Jeet Heer recently tweeted that we should use state power "for good," like expanding the scope of civil rights law and defending the LGBT community. "The only objection to DeSantis," Jeer wrote, "is that he wants to use state power to push big business to do bad things."

Of course, from the perspective of DeSantis and his allies, the Individual Rights Act is an expansion of civil rights law meant to force businesses to do what they think is "good" for Americans, in this case by removing identity politics from mandatory workplace trainings.

But the more power politicians have to determine which type of speech is good and, therefore, legal and which type is bad and, therefore, illegal, the more the sphere of acceptable discourse is likely to shrink as both sides of the political spectrum hem in those boundaries to promote their subjective notions of the "common good," a phrase that's become a guiding principle of the new brand of national conservatism that's aiming to both refine and expand upon the populism that former President Donald Trump injected into the GOP.

"The state should not be banning ideas," says Edwards.

LeRoy Pernell, a law professor at Florida A&M University (FAMU), a historically black college and plaintiff in the ACLU's case challenging the higher education component of the law, says that this amounts to the state attempting to "control thought."

"That [kind of control is] reminiscent of societies and governments that we supposedly fought wars against," says Pernell. 

The part of DeSantis' law that hasn't been struck down pertains to universities that receive state funding. It bans college professors at such colleges from promoting any of the eight forbidden concepts.

Pernell is afraid that the law will outlaw discussions of systemic racism, which he says is part of FAMU's institutional history. The state created the law school in 1949 to accommodate two black law students who applied to the racially segregated University of Florida. In 1966, the state forced it to cease admitting new students until former Florida Gov. Jeb Bush signed a law to reopen it in 2000.

Pernell worries that if instructors were to characterize that history as "systemically racist," they'd run afoul of the law's restrictions around teaching the concept.

"I do now live with the idea that at any moment, the state can come and take negative action against me because of my thought," says Pernell.  

Pernell also worries that the law would prohibit him from teaching material from his own book about systemic racism in the U.S. legal system, a book that denies the premise that racial "color blindness" is a useful concept.

"It is impossible to understand criminal procedure and understand the issues that arise in criminal procedure without understanding that the history has not been colorblind," says Pernell.

But the state has argued that it does have a say over what's taught at taxpayer-subsidized schools.

"Teaching kids to hate their country and to hate each other is not worth one red cent of taxpayer money," DeSantis said in March 2021.

Pernell's response to the criticism of race-conscious instruction is that it's"just silly" and that "to understand that there are racial differences" is not "a negative thing" because "different races, different communities bring different things to the table." 

You might disagree with Pernell. Maybe teaching law students to celebrate racial identity and differences isn't the best use of classroom time. But the relevant policy question is not what goes on in the classroom, the boardroom, or the break room, but who gets to decide?

"Diversity is good for business in many ways," says Sara Margulis, who co-founded with her then-husband Honeyfund, a business that administers online cash wedding registries in Clearwater, Florida. She is a plaintiff in the case against Florida, which argues that the law restricts the freedom of business owner to provide diversity training seminars to his or her employees.

DeSantis' office declined our interview requests, but a press representative responded by email that because the concepts covered in mandatory trainings are "forced on employees as a condition of employment," they are "designed to force individuals to believe something" and "adopt a certain proscribed ideology" and, therefore, "the law is designed to prohibit forced indoctrination in these concepts because doing so is discriminatory" under Florida civil rights law.

But Honeyfund's attorney Shalani Agarwal of the nonprofit Protect Democracy says the existence of civil rights law implies the opposite: Anyone who feels personally targeted by a diversity training workshop is already protected.

"Our current employment discrimination law that preceded the Stop WOKE Act already covers hostile work environments," says Agarwal, whose argument was supported by the judge who ruled against the state. When an employee faces persistent, offensive comments related to his or her identity in the workplace, that employee can file a harassment claim under current civil rights law. But Agarwal believes "the Stop WOKE Act creates a whole set of pretty flimsy and vague standards that make it kind of impossible for an employer to figure out how to proceed." 

In practical terms, the state can't really banish ideas. It can make people more hesitant to speak openly and honestly through threat of punishment, which might be an effect of the Florida law. But hampering real communication that way makes solving hard problems even harder. And there are a lot of hard problems left to solve.

Some so-called "woke" ideas really are pernicious because reducing every injustice to an identity-based formula flattens nuance, cultivates grievances, and can create tension where none existed before, as borne out by studies that find diversity training quite often makes people more prejudiced. This simplistic and counterproductive approach only further clouds our view of real solutions and real progress.

But is the situation really so dire as portrayed by political operatives like Chris Rufo, who stood beside DeSantis as he introduced the law and who calls critical race theory and similar teachings "neo-Marxism"?

Even some libertarians have come to look at the issue as a high-stakes fight against communism. The Libertarian Party's official account tweeted that "Soon, parents will be required to help enforce the state's Marxist, queer theorist, critical race agenda at home. Parents who fail to adequately indoctrinate their kids will have them taken away."

And when you believe you're fighting an existential domestic threat, it can justify all sorts of very un-libertarian, authoritarian behavior. The party account defended Joseph McCarthy while approvingly quoting anti-woke academic James Lindsay saying it's "time to deal with American communists for real."

Communism was a serious enemy of human prosperity throughout much of the 20th century, and politicians were right to be concerned about Soviet infiltration of the U.S. government. But McCarthy in the Senate and the Committee on Un-American Activities in the House went overboard in their hunts for communist spies, eventually expanding the scope of the search to target actors, writers, poets, musicians, and teachers.

And we're not even talking about Soviet espionage here, which is what kicked off McCarthy's crusade. We're talking about professors teaching what they believe college students need to hear, and employers training their workers in ways they think will help create a more harmonious workplace, virtue signal to customers, and, ultimately, help their bottom line.

We're talking about a state government regulating the free exchange of ideas. That is a bigger threat to our liberty and to American values than "wokeness" ever will be.

This isn't the way to "stop woke." Does that mean opponents have to just roll over and take it? After all, as conservatives will point out, the progressive left has no problem using civil rights law to push its ideas into the workplace and onto the college campus. Why shouldn't the American right pick up that tool and use it for its own ends?

One reason for caution is that sharpening a legal tool can be fatal once your opponents have the opportunity to turn it against you. Instead, you could be blunting or even dismantling it. If existing laws are part of the problem, limit or repeal the laws. Also, build, improve, and support alternative institutions, ones that reflect your values. Don't work for or buy from companies that disrespect you or attend colleges that spend a lot of time on issues of little value. They'll get the message. Some already are.

If you think woke ideas should be stopped, be wary of shortcuts. The long, hard path is the one more likely to bring enduring change: Criticize, resist, and, when need be, opt out.

 

Correction: The text has been edited to note that Sara Margulis co-founded Honeyfund with her "then-husband" and that they are no longer married.

Produced by Zach Weissmueller; edited by Danielle Thompson; graphics by Thompson. Sound editing by Ian Keyser.

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