Cousins v. Sch. Bd. of Orange Cnty.

636 F.Supp.3d 1360

Jennifer COUSINS, Matthew Cousins, P.C., M.C., S.C., N.C.,Will Larkins, David Dinan, Vikranth Reddy Gongidi, K.R.D.,R.R.D. and CenterLink, Inc., Plaintiffs, v. The SCHOOL BOARD OF ORANGE COUNTY, FLORIDA,the School Board of Indian River County, Florida,the School Board of Duval County,Florida and the School Board of Palm Beach County, Florida, Defendants.

Case No. 6:22-cv-1312-WWB-LHP

United States District Court, M.D. Florida, Orlando Division

Signed October 20, 2022

Angela Vigil, Baker & McKenzie, Miami, FL, Bacardi L. Jackson, Samuel T.S. Boyd, Southern Poverty Law Center, Miami, FL, Camilla B. Taylor, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Chicago, IL, Jennifer Vail, Pro Hac Vice, Southern Poverty Law Center, Montgomery, AL, Jodi Lynn Siegel, Simone Michelle Chriss, Southern Legal Counsel, Inc., Gainesville, FL, Kell L. Olson, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Tucson, AZ, L. Andrew S. Riccio, Debra A. Dandeneau, Baker & McKenzie, LLP, New York, NY, Paul David Castillo, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Dallas, TX, Scott Daniel McCoy, Southern Poverty Law Center, Tallahassee, FL, for Plaintiffs.

Howard S. Marks, Sheena A. Thakrar, Burr & Forman LLP, Orlando, FL, for Defendant The School Board of Orange County, Florida.

Matthew Joseph Carson, Jeffrey Slanker, Robert Jacob Sniffen, Terry Joseph Harmon, Sniffen & Spellman, PA, Tallahassee, FL, for Defendant The School Board of Indian River County, Florida.

Jon Robert Phillips, Laura J. Boeckman, City of Jacksonville Office of General Counsel, Jacksonville, FL, for Defendant The School Board of Duval County, Florida.

Anna Patricia Morales-Christiansen, Jon Erik Bell, Sean Fahey, Palm Beach County School District, Office of The General Counsel, West Palm Beach, FL, for Defendant The School Board of Palm Beach County, Florida.

Daniel Bell, Henry Charles Whitaker, Anita J. Patel, Florida Attorney General's Office, Tallahassee, FL, for Defendants Thomas R. Grady, Ben Gibson, Monesia Brown, Esther Byrd, Grazie P. Christie, Ryan Petty, Joe York.

ORDER

WENDY W. BERGER, UNITED STATES DISTRICT JUDGE

Plaintiffs challenge the constitutionality of Chapter 22-22, 2022 Laws of Florida (H.B. 1557), codified as amended at Fla. Stat. § 1001.42, and seek injunctive relief, as well as nominal and compensatory damages, against each Defendant. (See generally Doc. 79). The cause is currently before the Court on Plaintiffs' Motion for Preliminary Injunction (Doc. 45), Defendants' Responses (Doc. Nos. 49, 50, 54, 55), intervenor, the Attorney General of Florida's Opposition (Doc. 52), and Plaintiffs' Reply (Doc. 67).¹

I. BACKGROUND

Plaintiffs consist of a group of parents and their school-age children that attend school in Orange and Indian River Counties (collectively, "Parent and Student Plaintiffs") and a non-profit group, CenterLink, Inc. ("CenterLink"), that has members operating in Orange, Duval, and Palm Beach Counties. (Doc. 79, ¶¶ 13-16). In 2022, Florida enacted House Bill 1557, which took effect on July 1, 2022, and amended section 1001.42, Florida Statutes. (Id. ¶¶ 1, 21). As relevant to this dispute, the newly enacted provisions of section 1001.42 prohibit "[c]lassroom instruction by school personnel or third parties on sexual orientation or gender identity" for children in kindergarten through third grade and provide that such instruction must be age and developmentally appropriate for children thereafter. (Id. ¶ 21 (quoting Fla. Stat. § 1001.42(8)(c)(3))). In addition, the law requires school boards to "adopt procedures for notifying a student's parent if there is a change in the student's services or monitoring related to the student's mental, emotional, or physical health or well-being and the school's ability to provide a safe and supportive learning environment for the student[,]" bars school boards from implementing any procedures that prohibit school district personnel from notifying a parent regarding the same or "have the effect of encouraging a student to withhold from a parent such information[,]" and bans school district personnel from discouraging or prohibiting parental notification of and involvement in decisions regarding a student's mental, emotional, or physical health or well-being unless "a reasonably prudent person would believe that disclosure would result in abuse, abandonment, or neglect[.]" (Id. ¶ 22 (quoting Fla. Stat. § 1001.42(8)(c)(1)-(c)(2))). Defendants, the School Board of Orange County ("Orange County"), the School Board of Indian River County ("Indian River County"), the School Board of Duval County ("Duval County"), and the School Board of Palm Beach County ("Palm Beach County"), are the governing bodies charged with implementation of the new law. (Id. ¶¶ 17-20).

The Parent and Student Plaintiffs allege that as a result of Orange and Indian River Counties' implementation or contemplated implementation of the new provisions of section 1001.42, certain books, materials, and school activities may become unavailable and their speech and that of others will be chilled. (Id. ¶¶ 51-53, 59, 68, 75-78, 80-81). As support for these propositions, the Parent and Student Plaintiffs allege that Orange County has used training memorandums for staff that state that certain books may run afoul of the new laws and will need to be reviewed, that safe space stickers should be removed in certain classrooms, and that teachers should not display family photos with same-sex partners or wear clothing with messages supporting gay rights. (Id. ¶¶ 51, 57). With respect to Indian River County, the Parent and Student Plaintiffs allege that the County has discussed rescinding a lesbian, gay, bisexual, transgender, queer, and questioning ("LGBTQ + ") Administrative Resource Guide and the Superintendent plans to make proposed changes to the current guide. (Id. ¶ 81).

CenterLink is a non-profit organization that provides support for its members, which consist of LGBTQ + community centers across the country, including in Orange, Duval, and Palm Beach Counties. (Id. ¶¶ 16, 82). CenterLink alleges that a number of its members work with youth and provide trainings in schools. (Id. ¶¶ 87-88). As relevant to this litigation, CenterLink has a member that works directly with Duval County through a subcontract to provide various parent and teacher trainings, collaborate on policies and procedures for student support and anti-bullying, and provide support for students referred by school district staff. (Id. ¶ 92). CenterLink alleges that since the passage of the amendments to section 1001.42, its Duval County member has not received any student referrals, its standing monthly meetings with Duval County have been canceled, and teachers are no longer attending its meetings. (Id. ¶¶ 93-94, 96). CenterLink also alleges that its member in Palm Beach County has seen a drop in student referrals from teachers concerned about how the new law will be implemented. (Id. ¶ 100).

As a result of the foregoing, on July 25, 2022, Plaintiffs filed the Complaint (Doc. 1), alleging claims against Defendants for Deprivation of Freedom of Speech and Expression, and Overbreadth under the First Amendment (Count I), Deprivation of Due Process of Law under the Fourteenth Amendment (Count II), and Deprivation of Equal Protection of the Laws under the Fourteenth Amendment (Count III). (See generally id.). Over a month later, Plaintiffs filed the Motion for Preliminary Injunction. (Doc. 45 at 25). The Florida Attorney General, Ashley Moody, ("Attorney General") filed an Unopposed Motion to Intervene (Doc. 51), which was granted. (Doc. 62 at 6). Thereafter, Plaintiffs filed the First Amended Complaint, asserting the same claims against Defendants and also including claims for nominal and compensatory damages. (See generally Doc. 79).

II. LEGAL STANDARD

"The grant or denial of a preliminary injunction is within the sound discretion of the district court[.]" Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002). A district court may only grant injunctive relief if the moving party establishes: "(1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest." Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). "In this Circuit, '[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the burden of persuasion' as to each of the four prerequisites." Id. (quoting McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998)).

III. DISCUSSION

Plaintiffs seek a preliminary injunction enjoining Defendants from enforcing or taking actions to enforce section 1001.42(8)(c), Florida Statutes during the pendency of this litigation.

A. Evidentiary Hearing

Along with their Motion, Plaintiffs filed a Request for Oral Argument and Evidentiary Hearing (Doc. 46). Thereafter, the Court ordered the parties to submit a joint notice to inform the Court if an evidentiary hearing was necessary to resolve the merits of Plaintiffs' Motion, including identifying with particularity any disputed issue of material fact or credibility determination that would impact the Court's resolution of the Motion. (Doc. 47 at 1). In the Joint Notice (Doc. 59), Plaintiffs again requested a hearing "because there are disputed material facts." (Id. at 2). Defendants and the Attorney General argue that no evidentiary hearing is necessary because their responses to the Motion fail to raise any new issues of fact. (Id. at 3-6). Having reviewed the parties' submissions, the Court finds that Plaintiffs have failed to state with sufficient particularity any material issue of fact necessitating an evidentiary hearing. Therefore, the Court...