The Don’t Say Gay Settlement: A Papier-Mâché Shield

Note to readers: This guest column was written by Donald J. Murdaugh, Class of '25 at the University of Florida Levin College of Law.

As many readers of this blog are aware, in 2022, during the heat of his war against “woke,” Florida Governor Ron DeSantis signed into law the bill known colloquially as Don’t Say Gay. A little over two weeks ago, a group of plaintiffs who had challenged the law’s constitutionality in federal court signed a Settlement Agreement (the “Settlement”) with the Florida Department of Education (“DoE”). The group of plaintiffs, comprising students, parents, educators, and pro-LGBTQ advocates, hailed the Settlement as a victory that protects civil liberties for LGBTQ students and educators. Specifically, their attorney claimed that the Settlement “safeguards against hate and bullying” and said, “Simply put, the State of Florida has now made it clear that L.G.B.T.Q.+ kids, parents and teachers in Florida can, in fact, say they are gay.”

Given the optimism of that statement, it is surprising that DeSantis claimed victory as well. In a statement from the Governor’s office, DeSantis asserted that the Settlement – by allowing the law to remain on the books – was a win for children who must be “protected from radical gender and sexual ideology in the classroom." But if DeSantis is happy (or at least says that he is), and the law remains in place, what exactly did the Settlement accomplish?

The New York Times, echoing what appears to be the general consensus, offered this summary of the settlement:

The settlement language, which the state must share with Florida’s 67 public school districts, makes clear that the law does not restrict "literary references to a gay or transgender person or to a same-sex couple" in public school classrooms. It says that L.G.B.T.Q. references are not prohibited in literature, classroom discussions, students’ academic work or its review. Nor are such references prohibited when it comes to teachers’ spouses or partners, or any other context outside of instruction.

The Times goes on to list examples of clarifying language that emphasize that the statute was designed to apply neutrally to both hetero- and non-heterosexual students and educators. As a believer in affirmative action, I view neutrality in a culture war statute as already a bit concerning, given the historical vulnerability of the gay community in America and the demonstrable harm that comes from facially neutral laws that are not neutrally enforced. Colorblindness, for example, has worked wonders for racial minorities, hasn’t it? If you’re not convinced, read Eduardo Bonilla-Silva’s Racism Without Racists for an in-depth empirical analysis of how colorblindness masks racist ideology and erodes interracial relations.

But how much legal force is actually attached to the clarifying language that the LGBTQ community is currently celebrating? Put another way, how secure should LGBTQ students, parents, and educators (or non-LGBTQ folks who simply wish to discuss real life on a school campus) be in feeling that they are no longer being targeted by Florida’s government?

The answer -- which every news organization missed, and which the plaintiffs’ attorneys are likely trying to avoid admitting publicly -- is not at all. I am normally a glass-half-full type of person, but it is frankly impossible to find a victory in this Settlement for the plaintiffs and the LGBTQ community. Sadly, this Settlement was unequivocally a victory for DeSantis, with no genuine compromise on his part. The real result of the Settlement is that DeSantis (1) successfully removed a group of plaintiffs from this and future potential litigation, (2) allowed Florida Republicans to leave the Don’t Say Gay statute in place and untouched, and (3) created an opening for DeSantis to claim that he’s somehow moderating his views.

Regarding the first point, paragraph (1) of the Settlement requires that the plaintiffs drop the current case and “[r]elease and forever discharge” the defendants for any actions that the plaintiffs “raised or could have raised” in this case, including any future challenges to the law’s constitutionality. Written so broadly, this provision at least arguably estops the named plaintiffs from bringing any challenge not just to the Don’t Say Gay law itself but also to its enforcement. Cross those potential future plaintiffs off the list.

Regarding the second point above, the Don’t Say Gay law remains in place and untouched. I emphasize that word because there is no provision in the Settlement that could lead anyone to reasonably believe that the Settlement requires any substantive change either to the law or its enforcement.

As a threshold matter, private contracts, even if mediated by a District Court, do not have the force of law. The purportedly clarifying language in the Settlement can therefore have no effect on how the statute will be interpreted by a federal or state court. At most -- and this point is in fact the only positive impact that the Settlement could have on civil liberties – the Settlement sets out certain concessions that the State’s executive made during this litigation as to its own interpretation of the legislature’s intent. That, however does not preclude the DoE from reinterpreting the language in the future; it does not stop a future judge from concluding that the law means something else entirely; and the conceded policy interpretations will likely have very little, if any, persuasive (much less precedential) value in any future challenges to the law. A hypothetical plaintiff might claim, for example, that the DoE has erroneously defined the term “classroom instruction” because the definition set forth in the Settlement created some sort of “executive custom” that was not codified into policy. Unfortunately, no judge will be required to take that claim seriously, unless the judge chooses to use it to craft their own definition that then becomes law. And barring any subsequent legislative action, this Settlement does nothing to change the plain meaning of the statute itself.

The Settlement also contains two glaring curiosities that, shockingly, seem to have gone unnoticed. The first is that the clarifying language – the safeguards that Floridians are supposed to use as their shield against discriminatory educational practices – appear only in the recitals of the contract. I am a current law student who took Legal Drafting last semester, so I remember clearly that the recitals in a contract are unenforceable as a matter of law. The purpose of recitals is merely to introduce background material to help illuminate the purpose of the agreement. Any statement in the recitals cannot be held against a party to the contract without in some way being incorporated by an actual provision in the contract.

Even worse, the only substantive provision in the Settlement that might change the actions of DoE states, in its entirety:

2. Through counsel, the Florida Department of Education shall provide a copy of this Agreement, including the Recitals set forth above, to the school board of each of Florida’s school districts. In so doing, counsel shall note that Recital F [the 5-page recital that encompasses all clarifying language] above sets forth considered positions the State of Florida has taken in court about the scope and meaning of the Statute and shall encourage the school districts to send a copy of this Agreement to the principals of the schools within their respective districts.

That’s it. Every other paragraph within the enforceable section of the contract relates to the standard general provisions. This is the only provision that requires any action on the part of the DoE – and what it requires is nothing at all.

Let’s discuss what the provision does not do. It does not require the State to amend the DoE’s policy to codify the language in the recitals. In fact, it does not require the State to amend any policy at all. It does not issue an instruction that the recitals shall be conceded in any future litigation challenging the statute. And it does not bar the DoE from taking action against educators or students who may rely on the interpretations set out in the clarifying language. For example, if an educator had some sort of “safe space sticker,” as referenced on page 5 of the Settlement under the Bullying heading, this Settlement does not stop the State from requiring the removal of the sticker, even though such an enforcement action flies directly in the face of this Settlement.

Equally as appalling as what is not contained in that paragraph is what is actually included. The only action that DoE must take is to send the Settlement to the school districts, informing them that the language in the recitals “sets forth considered positions” that Florida has taken in court about the statute’s interpretation. But that is devoid of any real meaning. A “considered position” is as forceful to a board in shaping its policy guidelines as it would be for the President, say, to tweet that the Vice President should unilaterally overturn the results of an election. What is law is law, and an executive’s opinion means nothing if it will not be enforced.

Even if these “considered positions” were somehow supposed to shape policy at the district level, however, the terms of the Settlement do not require them to be taken seriously. There is nothing that could stop a district board member from hitting “send to junk” after receiving this Settlement in an email from the DoE. The DoE is supposed to “encourage” school districts to forward the Settlement to principals, but there is absolutely no incentive to comply – and no consequence for failing to comply – with the provision.

The reality is that this settlement agreement is a promise to do nothing, and it’s even more hollow than that. It’s not merely not a victory for the plaintiffs; it gives DeSantis cover to appeal to moderates. He continues to claim that his “war on woke” is not as big of a deal as it is, and this Settlement allows him to pretend to have extended an olive branch to people who have fought him the hardest. News reports about the settlement have been very both-sides-y, claiming that each side got something it wanted. In fact, however, only one side won, and now DeSantis can say to America that the Don’t Say Gay governing philosophy is acceptable even to the people who sued him.

Being the eternal optimist that I am, I am trying to convince myself that DeSantis’s DoE might actually abide by the language set forth in the Settlement. He would certainly seem to have an incentive to order them to do so, given that his political career is now as cold as a crisp morning in an Arctic winter. He was never supposed to act against the woke mob; he was only supposed to yell and scream about it. His poll numbers after suing Disney, banning books, and passing this very bill are proof of that. Indeed, this Settlement hands him the kind of toothless platitude that his platform thrives on: he gets to keep the bill intact for his conservative supporters, even as he claims that he's much more moderate, likeable, and human than everyone thought.

But if the political soil in Florida ever again becomes fertile ground for right-wing extremism (if it ever wasn't), this Settlement will provide no obstacle to prevent DeSantis (or his successor) from re-launching an assault against his favorite scapegoats.