Case 4:22-cv-00324-MW-MAF Document 44 Filed 11/17/22 Page 115 of 139
(“Triple negatives are not conducive to comprehension.”). It is unclear what is prohibited and even less clear what is permitted.
Defendants’ effort to clear things up amounts to rewriting the provision: “to say that an individual ‘cannot and should not’ try to treat people the same no matter their race is to say that the individual is either unable or should be unwilling to treat people the same regardless of their race.” ECF No. 52 at 36–37, in Case No.: 4:22cv304-MW/MAF. But canceling out two of the negatives—i.e., educators cannot endorse the view that members of one demographic can and should attempt to treat others with respect to the listed characteristics—does little good. Does this prohibit anything other than colorblindness? Does it ban topics such as affirmative action and diversity? Can educators acknowledge their students’ differing cultural backgrounds? In sum, concept four is “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926).
Regardless of whether some of the eight concepts are vague, however, Plaintiffs claim the entire statute is rendered vague by the provision permitting “discussion” of the concepts if “given in an objective manner without endorsement.” ECF No. 13 at 39, in Case No.: 4:22cv304-MW/MAF; ECF No. 19 at 44–45, in Case No.: 4:22cv324-MW/MAF. Rather than resorting again to dictionary definitions, Defendants respond by pointing to some of the Pernell Plaintiffs’ declarations,
115
