“No one should be instructed to feel unequal or shamed because of their race,” DeSantis tweeted. “In Florida, we will not allow the far left Woke agenda to take over our schools and workplaces. There is no place for indoctrination or discrimination in Florida.”
It was echoed by his Lieutenant Governor Jeanette Nuñez, who vowed, “We will always fight to protect our children and parents from this Marxist-inspired curriculum.”
The law was immediately challenged by a consortium of academic and student plaintiffs led by Adriana Novoa, a history professor at the University of South Florida, and student Samuel Rechek, scheduled for spring 2023 in Professor Novoa’s Science in Cultural Context, a course is enrolled covering the so-called “WOKE” concepts.
The case ended up on the list of Judge Mark Walker, an Obama appointee, who mentioned the Orwellian aspect of the claim to prevent indoctrination by empowering the state to demote universities when professors express opinions similar to those of Gov. DeSantis and his Buddies in Tallahassee disagree.
To counter certain positions that offend those in power, the state of Florida passed what it called the Stop WOKE Act2 in 2022 – renamed (in accordance with the state’s duplicity) the Individual Freedom Act. The law officially forbids professors from expressing unfavorable points of view in university lecture halls, while allowing the free expression of opposing points of view. Defendants argue that under this law, professors enjoy “academic freedom” so long as they hold positions approved by the state. It’s downright dystopian.
The defendants’ position is that “the First Amendment offers no protection here…because university professors are public servants, they are simply the state’s mouthpieces in university lecture halls.” As a witness, the state even admitted that a guest lecturer at the law school Faculty claiming that “affirmative action is good” — as Judge Sonia Sotomayor has done in her bio — is against the law and would be treated as hate speech, risking millions of dollars in government funding. But that’s not censorship, they insist, because professors can still teach around Affirmative action – they just can’t express support for it. If they want to say it’s bad and racist, they can.
This is of course a classic point of view discrimination. And while the state certainly has the right to regulate the curriculum, i.e. the content, that is different from saying: ‘One may teach that positive action exists, but one may not express the opinion that it is good. “
“To the extent that the defendants urge this court to determine that university professors’ speech is always pure government speech, the weight of binding authority requires that this court decline the invitation,” the court states, jumping to a footnote, which points to several Federalist Society papers denouncing the scourge of judicial activism, including one by a professor who was recently removed (or resigned, if you want to get technical) from the Georgetown University Law Center for making heterodox “racially tinged” made comments.
Because there is Eleventh Circuit jurisprudence that does not support the state’s position, Judge Walker quotes bishop v. Aronova 1991 case from Alabama in which a physiology professor was reprimanded for incorporating his religious beliefs, including those about evolution, into his lectures.
In the Bishop case, the Eleventh Circuit considered three factors as part of its “case-by-case” approach – namely (1) “the context”, (2) “the position of the university as a public employer that adequately respects workers’ speaking rights”. can restrict more easily than that of other people”, in particular with regard to “appropriate control”.[ling] the content of its curriculum, particularly that taught during class time” and (3) “a strong preference for academic freedom as an adjunct to First Amendment rights to free speech”.
With regard to the first factor, context, the court notes that the law not only “deters possible expression before it happens” but that it “imposes”.[s] his own orthodox opinion on the content it allows in the university lecture halls.”
The court is particularly scathing about the second part of the test, as the state insists it merely upholds the anti-discrimination provisions of Title IX and prevents a hostile work environment prohibited under Title VII.
The defendants attempt to disguise the state of Florida’s interest as a public employer and educator by prohibiting discrimination in university classrooms, but this does not give the defendants a safe haven to enforce viewpoint-based restrictions aimed at protected speech. In short, it is not an answer to the fact that the contested provisions are part of an anti-discrimination law. To the extent that the Defendants suggest that a perspectively discriminatory restriction on protected expression is immune from a First Amendment challenge because it is enshrined in antidiscrimination law, they err.
In contrast, the teachers and students here do have strong First Amendment rights to express their own opinions. Academic freedom is a cornerstone of free speech, and no amount of distortion makes restricting it a blow to indoctrination and censorship.
The state of Florida says that in order to avoid indoctrination, the state of Florida can impose its own orthodoxy and indoctrinate university students to its preferred viewpoint,” the outraged court writes. “This extravagant duplicity is at odds with ‘the invaluable role academic freedom plays in our public schools, particularly at the post-secondary level.'”
Judge Walker also bought the plaintiffs’ argument that the law was void because it was vague because how the hell did you know if you were violating a prohibition on “supporting, encouraging, promoting, such students or staff to inculcate or compel to believe [that] …. Persons of any race, color, national origin, or sex cannot and should not attempt to treat others without regard to race, color, national origin, or sex?”
Is that even English?
So the law is mandatory, at least to the extent that it allows the Florida Board of Governors to enforce it against colleges. Although this is the Eleventh Circuit, one can only guess what happens next.
Novoa vs Diaz Jr [Docket via Court Listener]
Liz Dye lives in Baltimore, where she writes about law and politics.