Abstract

Excerpted From: Katheryn Russell-Brown, “The Stop Woke Act”: HB 7, Race, and Florida's 21st Century Anti-literacy Campaign, 47 New York University Review of Law and Social Change 338 (2023) (246 Footnotes) (Full Document)

Nine months before Rosa Parks refused to give up her seat on a Montgomery, Alabama city bus, Claudette Colvin, a 15-year-old Black high school student refused to change her seat on a different Montgomery bus. On March 2, 1955, after school ended early, Claudette walked to the bus stop. When the number 64 bus arrived, she walked onto the bus and found a seat. When more White passengers boarded the bus, the driver ordered Claudette to relinquish her seat and move to the back of the bus. Claudette did not move. The driver phoned the Montgomery Police Department. When they arrived, the officers dragged the teenage girl off the bus, handcuffed her, and took her to jail, where she remained in a cell for hours. When Claudette was later asked why she refused to move to another seat, as Montgomery's segregation laws required, she responded that she had been taught that Blacks had protections as citizens. She said that in school, “We had been studying the Constitution ... I knew I had rights.” Claudette's response underscores the value of schooling that exposes students to history and rights: the freedom in learning.

Claudette Colvin's story serves as a touchstone for this Article. It symbolizes the power of education to enlighten and expose students to myriad understandings and perspectives on individuals, groups of people, and systems. Her experience dramatizes the connection between education and democratic participatory action. Her story provides one of the many threads that links state action with anti-literacy. For centuries, legislation has been enacted to disappear educational curricula that centers on the history and rights of AfricanAmerican people. Anti-literacy laws fueled an underground literacy economy that saw enslaved Blacks risk their lives and limbs for education and possible freedom. Out of public view, Black people who learned to read and write had to hide this knowledge. Contemporary state laws that restrict educational knowledge have a deep and troubling connection to this history.

The central goal of this Article is to establish anti-literacy as a framework for understanding Florida's Stop the Wrongs to Our Kids and Employees Act (Stop WOKE), also known as House Bill 7 (HB 7), which prohibits certain forms of race-related teaching and training in the state of Florida. This Article demonstrates the clear nexus between antebellum anti-literacy laws and HB 7, the modern-era counterpart. Anti-literacy laws have been an essential way that Black people have been denied educational access. These laws, which were initially aimed at prohibiting enslaved Blacks from learning core literacy skills, have had several iterations, including the Black codes and Jim Crow laws.

This Article charts a broad historical timeline for anti-literacy legislation. At the outset, it is important to state that there are different types of literacies. This Article uses the term basic literacy to refer to reading and writing skills. Historically, anti-literacy laws began as explicit prohibitions that made it unlawful for enslaved Blacks to learn to read or write. These laws were directed at the foundational skills necessary for a person to be considered literate. White enslavers believed that Black literacy posed a potent threat to slavery. They converted this fear into anti-literacy legislation. Examples include the slave codes and Black codes. This Article also focuses on another form of literacy, substantive literacy. Substantive literacy refers to teaching and learning about specific curricula subjects and perspectives. Laws that ban or control exposure to this type of knowledge are attacks on substantive literacy. These laws are a modern-day iteration of basic literacy bans. Notably, their expanse is broader--these laws apply to all races. Florida's HB 7 legislation is an example of a substantive literacy ban.

While the format and focus of anti-literacy laws have evolved over time, in all relevant ways, the contemporary manifestations of these laws operate to achieve the same goals as their predecessors. Their shared objective is to minimize educational access to the truth about U.S. racial history and, in doing so, to reduce Black people's access to political and social power. Teasing out the common anti-literacy threads that connect past and contemporary laws enables and invites a more rigorous analysis of HB 7 and related laws. These new laws do not constitute a new problem. They are not simply a reaction to Black Lives Matter and the social protests that erupted in 2020 after George Floyd's murder. By identifying the integral connections between HB 7 and its legislative predecessors, this Article unpacks the legal framework and particular racialized harms of anti-literacy laws.

An anti-literacy framework reveals that bans on educational access are forms of state orthodoxy. They do not promote “individual freedom.” Today, “anti-literacy” refers not to slave code prohibitions against learning rudimentary skills (e.g., how to read, how to write), but instead to laws like HB 7 that are designed to keep critical histories and rigorous racial critiques at bay. This process is done by assigning the label “racist” or “Marxist” to classes, assignments, and reading materials that investigate racial issues using non-mainstream paradigms. By contrast, theories and concepts that endorse racelessness, such as “colorblindness,” are promoted as objective and thus preferable.

A critical part of understanding the anti-literacy framework is observing its trajectory. In its initial forms, exemplified by the slave codes, anti-literacy laws were primarily focused on outlawing the education of enslaved Blacks. Over the centuries, anti-literacy was reflected in the postbellum era as separate-but-equal legislation, the underfunding of Black schools, and literacy tests for Black voters. The laws were designed to block Black literacy and, in this way, to strengthen the White racial hierarchy. Today, anti-literacy laws have been expanded to include the educational curriculum taught to White children. The angry, volatile, and sometimes physically threatening responses to critical race theory (CRT) provide an example. In 2021, across the nation, mostly White politicians, parents, educators, and school boards sounded alarms regarding what their children were learning about race, racism, U.S. history, the founders, and the workings of state systems. One goal of the anti-CRT pushback has been to mute curricula that use a critical lens to evaluate American history. The aim is to keep this material away from White children, thereby maintaining the racialized status quo. While the focus has shifted and expanded to include White students, the bans which deny specific forms of educational knowledge and exposure impact students of all races.

While HB 7 applies much more broadly, the primary focus of this Article is on HB 7's impact on race-related instruction in undergraduate, graduate and professional school classrooms, with particular attention to the law school classroom. The article also examines how this law impacts law professors and legal instruction. As HB 7's focus on post-secondary instruction makes it distinctive, its particular role in higher education is important to analyze. While the Article makes references throughout to the First Amendment, the free speech limitations of HB 7 are not a main focal point. HB 7 does, however, raise a host of First Amendment issues and concerns.

This Article is presented in five Parts. Part I focuses on the history of anti-literacy laws. The discussion reviews the evolution of anti-literacy laws, beginning with the slave codes. During slavery, these slave codes prohibited teaching enslavedBlack people to read and write; they also punished the publication and transportation of abolitionist literature that would stir enslaved Blacks to seek freedom. These anti-literacy laws punished enslaved Blacks, free people of color, and Whites. Over time, the seeds of these early literacy bans could also be seen in the Black codes and in other postbellum attempts to deny equal school funding for Black children, which caused low Black literacy rates. After the Thirteenth Amendment was passed, literacy tests were used to minimize the number of Black voters. Anti-literacy campaigns also flourished in the JimCrow era.

Part II uses two theoretical approaches to analyze the anti-literacy laws. The first is the racial threat hypothesis. At its core, this theory predicts that the increase in size of the Black population will impact how Whites view punitive criminal legal policies. That is, there is a positive correlation between an expanding Black demographic and the popularity of White support for harsh criminal sanctions. The second theoretical lens is CRT. The discussion is a consideration of the role of interest-convergence and interest-divergence in the passage of anti-literacy laws. As the discussion establishes, over time anti-literacy laws developed beyond basic prohibitions against learning to read and write. They expanded to regulate classroom subject-matter and remove or reduce certain historical and political perspectives. This section examines CRT scholarship that investigates how race impacts educational policy. It also examines backlash and “frontlash,” as explanations for contemporary educational bans.

Part III identifies the sections of HB 7 that focus on college and university instruction. Seven hypothetical scenarios are presented to highlight both the ambiguity and problematic breadth of HB 7. These hypotheticals raise questions that are particularly relevant to law school professors and the law school classroom. This Part also addresses the broad range of sanctions-- against individuals and universities--put in place for violations of the law. The litigation sparked by HB 7 is noted in this section. The discussion examines the wide web of Florida laws that support HB 7 and enhance its power to expand the anti-literacy climate.

Part IV explores the potentially long-term and far-reaching impact of HB 7 on the educational curriculum available at Florida universities. Specifically, this Part looks at how the presence of HB 7 exists as a threat to instructors who teach courses that address subjects within its legislative bullseye. These threats may manifest in a rising decline by instructors to teach these subjects and, most worrying, the ultimate removal of “controversial” race-related courses from the university curriculum. HB 7 is a legislative attempt to delegitimize race scholars and race scholarship. Thus, the law determines not only which courses are offered, but whether professors who teach particular subjects remain at Florida universities.

Part V, the final section, considers the role of alternative and supplemental educational spaces as channels for learning and sharing the histories of marginalized racial groups, outside of the formal educational context. Over generations, these spaces have played a vital role in keeping these histories alive. These spaces have a notable contemporary resonance--in view of the legislative attempts to ban racial history from the public school and university classroom.

[. . .]

A fully operational HB 7 will enable a purge of race scholarship and race scholars in Florida's colleges and universities, as a result of the law's targeting of these scholars and their scholarship. This attrition will also impact university scholars who do not teach race-related issues in their courses--scholars who believe that, if state orthodoxy is allowed to substitute for rigorous academic inquiry, the mission of the university cannot be met. The harm extends beyond any punishments received by individual instructors. HB 7 determines which race-related knowledge students will carry with them out into the world. There is great danger when the state unilaterally decides to ban the teaching of certain types of knowledge. HB 7 is anti-literacy masquerading in freedom's clothing.

This article identifies a critical throughline. HB 7, which dictates whether and how race issues can be taught in college classrooms in Florida, is a legacy of antebellum prohibitions against literacy for Black people. This revelation uncovers the deep, historical roots of anti-literacy legislation. It also highlights the myriad forms of anti-literacy laws and the common rationales offered to sustain them. Most importantly, it establishes a holistic framework for understanding the intersection of anti-literacy and race.

Hopefully the analysis undertaken in this Article will be of value to both practitioners and academics. For legal practitioners, being able to evaluate HB 7 and similar laws within the larger historical context of anti-literacy laws may create an opportunity for richer and stronger pleadings that incorporate a review of law, history, and theory. Understanding HB 7 as the most recent iteration of generations of anti-literacy efforts may also aid practitioners in developing novel legal challenges or defenses. A broad examination avoids a constrained look at how race is treated under a current law. It allows for an analysis that connects the dots between a contemporary law on race and its legal predecessors. Academics may also benefit from the approach taken in this article by incorporating similar socio-legal-historical frameworks in their scholarship. The author particularly hopes this piece will prompt other legal scholars to consider applying racial threat theory in their analysis of race-related legislation.

When fifteen-year-old Claudette Colvin asserted her right to remain in the seat of her choosing on a segregated public bus in 1955, she relied on her school lessons. The bus driver who instructed her to move from her seat represented one narrative of the American racial order. However, one of her high school teachers had presented Claudette with a compelling, alternative narrative. She was a citizen and she had rights under the United States Constitution. It was Claudette's exposure to the U.S. Constitution and American history that motivated her to challenge JimCrow rules requiring racial segregation in public transportation. This exposure illuminated an essential fact: Education is an instrument of freedom.

Levin, Mabie & Levin Professor of Law and Director of the Race and Crime Center for Justice at the University of Florida, Levin College of Law.