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Tuesday, June 28, 2022

No standing and no Injunction in Florida CRT suit

From the lawsuit filed in April challenging Florida's HB 7, the anti-CRT law: The district court denied a preliminary injunction, finding that plaintiffs failed to show standing for different reasons:

• Public-school teachers cannot show traceability or redressability as to the Board of Education because it has not done anything to enforce the law. Any restrictions on what they can teach come from the local school board and the school, acting out of the threat of loss of funds. The court refused to find standing to enjoin the Board (from enacting regulations and stripping funds) based on the layers of inferences of from the threat of funds to what school boards and schools might do. I see the point--the Board does not create the constitutionally violative rules. but it allows standing to ignore common sense and economics and force plaintiffs to wait longer to litigate their rights.

• The rising kindergartner has not show injury-in-fact because he cannot show what material he will not be taught in kindergarten because of this law, as opposed to in an AP History class he may take 8-10 years from now. And although the court does not address it, this claim should fail on traceability and redressability for the same reason the teachers' claims fail--the removal of any material was by the school or a teacher, not the Board, and the court already said school action based on Board threats is insufficient for a suit against the Board.

• The private DEI consultant has not shown an injury at the first step of third-party standing on behalf of his customers.

• The court reserved ruling as to the final plaintiff, a prof at Central Florida.

• The court concluded the opinion--in which he never touched the First Amendment merits--with a long block-quote from Barnette, preceded by this: "For those who applaud state suppression of ideas that the government finds displeasing--such as the 1619 Project--this Court offers the following observation." I am as forgiving of judicial tangents as anyone, but this is inappropriate and absurd. If we call out judges such as Justin Walker and James Ho for including gratuitous culture-war rants in their opinions, we should call out Mark Walker for including rants with which I might agree.

Posted by Howard Wasserman on June 28, 2022 at 08:58 AM in Constitutional thoughts | Permalink


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