[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 23-10616 ____________________

LEROY PERNELL, DANA THOMPSON DORSEY, SHARON WRIGHT AUSTIN, SHELLEY PARK, JENNIFER SANDOVAL, et al., Plaintiffs-Appellees, versus FLORIDA BOARD OF GOVERNORS OF THE STATE UNIVERSITY, et al.,

Defendants, USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 2 of 43

2 Opinion of the Court 23-10616

ROBERT ALEXANDER ANDRADE, MELONY BELL, DAVID BORRERO, JUAN FERNANDEZ-BARQUIN, RANDY FINE, et al.,

Interested Parties-Appellants.

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Appeal from the United States District Court for the Northern District of Florida D.C. Docket No. 4:22-cv-00304-MW-MAF ____________________

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, Circuit Judge, and COOGLER,* Chief District Judge. WILLIAM PRYOR, Chief Judge: This appeal poses the question whether a common-law priv- ilege shields state legislators from a discovery request made for the purpose of determining the legislators’ motives in passing a law. Professors and one student challenged Florida’s Individual Free- dom Act for having a racially discriminatory purpose in violation

* Honorable L. Scott Coogler, Chief United States District Judge for the North- ern District of Alabama, sitting by designation. USCA11 Case: 23-10616 Document: 53-1 Date Filed: 10/30/2023 Page: 3 of 43

23-10616 Opinion of the Court 3

of the Equal Protection Clause of the Fourteenth Amendment. Af- ter the plaintiffs subpoenaed legislators for documents related to the bill’s drafting and adoption, the legislators moved to quash the subpoenas based on the legislative privilege. The district court par- tially denied the motion on the grounds that factual documents are outside the scope of the privilege and alternatively that important federal interests outweighed the legislative privilege. Because fac- tual documents are within the scope of the privilege, which is un- qualified in this kind of lawsuit, we reverse and remand with in- structions to quash the subpoenas. I. BACKGROUND In April 2022, Governor DeSantis signed into law the Indi- vidual Freedom Act, also called the Stop W.O.K.E. Act. See Ch. 2022-72, Laws of Fla. Governor DeSantis described the Act as “a stand against the state-sanctioned racism that is critical race the- ory.” Governor DeSantis Announces Legislative Proposal to Stop W.O.K.E. Activism and Critical Race Theory in Schools and Corpora- tions, News Release (Dec. 15, 2021), https://perma.cc/9VV7- 7YCE. It prohibits Florida’s public schools from “subject[ing] any student or employee to training or instruction that espouses, pro- motes, advances, inculcates, or compels such [individual] to be- lieve” any of eight concepts descended from critical race theory. FLA. STAT. § 1000.05(4)(a). For example, the Act stops schools from teaching that “[m]embers of one race, color, national origin, or sex are mo