The American Civil Liberties Union of Florida has hired two more lawyers and is planning to add another to help handle an expected workload increase resulting from the Republican-led Legislature’s recently ended session, reports Bill Kaczor of the Associated Press.
The ACLU, unions and some liberal and non-partisan groups are gearing up for potential legal challenges to legislation as well as at least one of Gov. Rick Scott’s executive orders. They are reviewing measures that they say violate privacy, free speech, voting, due process, collective bargaining and other constitutional rights and requirements.
“I didn’t realize at the time of the election that when Gov. Scott said ‘Let’s get to work,’ he was referring to the lawyers in the state, but that seems to be the way it’s working out,” Tallahassee attorney Ron Meyer said. His clients include the Florida Education Association, the statewide teachers union, which is considering challenges to several measures.
“This legislative session has been maybe the biggest disaster for personal freedoms and human rights, and the list is long,” said Howard Simon, ACLU of Florida’s executive director.
Some of the same measures that Simon and other critics say would curtail various rights do just the opposite in the eyes of their Republican supporters.
“The Legislature passed multiple measures which stand up for Floridians’ freedoms,” Senate Majority Leader Andy Gardiner, R-Orlando, said in a statement Thursday. “Anyone who files suit following the passage of laws has every right to do so. At the end of the day, we can only do what we know in good conscience is best to ensure our children have a bright future.”
The ACLU is targeting several changes to the state’s election law that it believes would suppress minority voting and a measure that requires welfare applicants to get drug tests, saying it would violate privacy rights. The ACLU also may challenge a state constitutional amendment that would repeal Florida’s ban on using public funds to aid churches and other religious organizations.
Simon said the passage of legally questionable legislation was no surprise. He said the ACLU began planning to beef up its legal staff shortly after the election in November of Scott, a Republican, and overwhelming GOP majorities in the House and Senate.
No final decisions have been made, but Meyer said “it’s a relative certainty” the teachers union will sue over a new law linking teacher pay to student test scores and eliminating tenure for new hires.
“It expressly, in some instances, prohibits collective bargaining,” Meyer said.
That includes limiting consideration of advanced degrees in setting salaries and requiring that half of teachers’ performance evaluations be based on how much each of their students improves on standardized tests. Those evaluations will be used to decide which teachers get merit raises. The law also says seniority cannot be a factor in deciding which teachers will be laid off if cuts are made.
Meyer said those are issues for collective bargaining, a right the Florida Constitution says “shall not be denied or abridged.”
One of the bill’s sponsors, Rep. Eric Fresen, R-Miami, said it simply modifies factors already in state law and won’t prevent bargaining over the final details.
“The fundamental principles of collective bargaining weren’t touched,” Fresen said.
The League of Women Voters and ACLU may challenge an election bill sponsors say would prevent fraud. Critics say the real intent is to discourage minorities and others who tend to vote Democratic from casting ballots.
The league has decided to discontinue voter registration drives in Florida if the bill goes into effect. Members of groups such as the league and Boy Scouts would be required to register with election officials before conducting such drives. They also would have to file regular reports and turn in completed registration forms within 48 hours or else face a $50 fine for each late form.
“It’s almost as if they expect that every volunteer will have a secretary to keep track of every form,” said Deirdre Macnab, the league’s Florida president.
Other provisions would cut early voting hours and require provisional ballots for voters who make address changes at polling places on Election Day. They later would have to prove their identity before their ballots could be counted.
“There is clear evidence that it has a racially retrogressive impact by requiring more minority voters, who move at a greater rate than majority voters, to use provisional ballots, which are counted less,” the ACLU’s Simon said.
A lawsuit may unnecessary. The ACLU and others plan to ask the U.S. Justice Department to determine under the federal Voting Rights Act if the bill discriminates against minorities. If so, it cannot be enforced.
The election bill’s sponsor, Rep. Dennis Baxley, R-Ocala, said opponents are overreacting to the new registration requirements because penalties would apply only to willful violations. He said the fact some provisional ballots go uncounted proves they are effective in preventing fraud.
The welfare drug screening bill would require applicants for federally funded temporary assistance to pay for the tests themselves although those who pass would get reimbursed.
Simon said ACLU may challenge the bill and Scott’s order to screen new hires while randomly testing existing state employees. Such screening violates their privacy rights, he said.
The U.S. Supreme Court has allowed blanket suspicion-less drug testing only if “the risk to public safety is substantial and real.”
The bill’s sponsor, Rep. Jimmie Smith, R-Inverness, prefaced his comments by acknowledging “I’m not a lawyer,” a frequent refrain in the Legislature, before saying studies show a greater percentage of welfare recipients abuse drugs than the general population. Opponents dispute that claim.
“That is a public safety concern,” Smith said.
He also noted that federal law doesn’t prevent states from drug testing participants.
Federal courts, though, struck down a Michigan program in the only legal test of suspicion-less drug screening of welfare recipients.
Simon said ACLU may challenge the religious aid ban repeal because the constitutional amendment’s title, “Religious Freedom,” is misleading.
Instead, he said, it would do just the opposite by adding new language to the Florida Constitution allowing state funding of religious activities.
Another amendment that raises legal questions would ban public funding of abortions and exempt abortion from the Florida Constitution’s strong privacy right. Simon said the funding ban is deceptive because that’s already prohibited by law. It’s aimed at getting the privacy right exemption passed because the latter would probably fail on its own, he said.
Planned Parenthood also is looking at possible challenges to the amendment as well as a bill making it harder for minors seeking abortions to get court waivers from the state’s parental notification law, said Stephanie Kunkel, executive director of the organization’s Florida affiliates.
A proposed amendment attempting to block a requirement in the federal health care overhaul for most people to have insurance also could run into trouble if it should pass. Many legal experts say the federal law would trump any such state provision.
Another potential target for the teachers union is an expansion of the McKay voucher program that sends disabled students to private schools at public expense. Adding students with lesser ailments such as allergies and asthma, who can easily be accommodated in regular public school classes, may run afoul of a constitutional provision requiring a uniform public school system, Meyer said.
The teachers union is generally comfortable with a bill loosening class-size limits, but Meyer said parent organizations have contacted him about a provision exempting foreign language classes from the cap. If schools “start packing those classes full of kids … they’re running into a constitutional problem,” Meyer said.