ACLU argues in federal court to keep injunction for Stop W.O.K.E. Act

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A man in a blue suit stands at a podium with people behind him holding signs.
Gov. Ron DeSantis introduced the Stop W.O.K.E. Act in Dec. 2021. Now, the state is in federal appeals court over whether the law violates the First Amendment. Photo from DeSantis Press Conference in 2021 for WMNF News.

The American Civil Liberties Union is suing the state over a 2022 law Gov. Ron DeSantis dubbed the Stop W.O.K.E. Act. It restricts how race-related concepts are taught in higher education.

A judge placed an injunction on the law, saying it violated the First Amendment. The move effectively stopped the law from taking effect. The state appealed.

On Friday, attorneys for the state and the ACLU battled it out in federal appeals court over that decision.  

The ACLU is arguing for the injunction to remain in place.

Professor LeRoy Pernell, one of the plaintiffs in the lawsuit, is the former dean of Florida A&M College of Law. He gave his thoughts on how arguments went during a press briefing Monday morning.

“We kept hearing the notion, or the idea that, the state can have its own opinion,” Pernell said. “But this isn’t about whether or not the state has its own opinions, it’s about stopping everybody else’s.”

ACLU lead attorney Leah Watson said the state argued it could pass a law restricting educators at public universities from criticizing the government and/or the governor. 

“And in response to a question about how professors could disagree and what actions they could take if they do disagree, the state invited them to move to a different location altogether,” she said.

Attorneys for the civil rights organization say they are cautiously optimistic about the outcome. 

Including staff attorney for ACLU of Florida Jerry Edwards, who spoke to WMNF’s Meghan Bowman before oral arguments. He said there is a lot at stake in this case.

Edwards: This is a lawsuit challenging the Stop Work Act, which passed back in 2022. The law restricts discussions of race and gender in higher education in the state.

Bowman: And what are some of the main problems with laws such as this?

Edwards: I would say that the main problems, there are really three of them.

The first is that the law doesn’t give fair warning of what it prohibits. It’s written in such a way, to put it in legal terms, that it’s unconstitutionally vague. It doesn’t tell professors what they can and can’t do, at least in a way that is sufficiently clear to warn them of how they can teach in a way that complies with this law.

The second is that the law discriminates based off of views. What that means is that cuts off one side of the conversation based on what ideas the state government does and doesn’t agree with. And the First Amendment is very clear that the state is not allowed to pick winners and losers in these sorts of debates. It has to allow all viewpoints, at least insofar as they are relevant to a course.

And then our professors, they are teaching based on what are the best standards in their academic discipline. They’re teaching courses they have been told, “We want you to teach this course that involves discussions of race.” But now the state has come in and said, “Well, yes, you could teach the course that involves these discussions of race, but only certain ideas that we like.” So that violates the First Amendment.

The final is equal protection, and that is this law discriminates against Black professors and students by targeting ideas that they want to learn and that they disproportionately teach.

Bowman: So the first thing you spoke about, let me go back to that. You mentioned it being vague. Are these laws – do they tend to be intentionally vague?

Edwards: They’re written in such a way that they chill speech because there’s not a clear line. And rather than risk getting in trouble, rather than risk their university losing tens of millions of dollars in funding, professors just avoid it entirely. They try to steer away from these issues so that they don’t come up and I do think that there is intent behind trying to chill these conversations.

Whether they intentionally wrote the law in a vague manner, I can’t speak to. But I do think these laws are trying to prevent these conversations from happening because the people in the state government disagree with the ideas and conclusions that people are coming to.

Bowman: How is the Stop W.O.K.E. Act violating the plaintiffs’ First Amendment and 14th Amendment rights?

Edwards: So right now we have an injunction against the law. The court has prevented the state from enforcing the law while the lawsuit is moving forward. That is what’s being argued is whether that injunction should stay in place, and whether the court came to the right conclusion.

So right now, the law can’t be enforced, which I think is helping to allow these conversations to happen. And so while there may not be supervision or state surveillance in every course, there’s always that fear that it could happen. Or that somebody could misunderstand something out of context and that you could be punished for talking about something that is an accepted idea in your discipline, or playing devil’s advocate during a discussion to get your students to think critically.

And really, what this law is trying to do is it’s trying to take away that leeway that professors have been traditionally given under academic freedom and force them to, and I know this may sound crazy, but this is actually what the state said when the judge questioned them. Before the trial court, (the judge) asked, “Could the state, under your theory, come in and hand professors scripts and force them to read from it?”

And the state said, “Yes. We could hand them scripts and force them to read exactly what we want them to say.”

And so while this law may not go quite that far, they were opening the door to go that far in the future. The good news is, the law was only in effect for about five months and some of that was during the summer – so there wasn’t a lot of teaching going on. So it didn’t have the sort of impact it could have.

But if this injunction goes away, the state will be able to enforce it again.

Bowman: What is the best and the worst case scenario?

Edwards: This ruling, if they rule in our favor, will help our case in the lower court to get a permanent injunction stopping the state from ever enforcing this law. And so it would be a very good outcome. And I think it’ll also set a precedent nationwide that these sorts of laws are disfavored because they violate free speech.

On the other hand, the worst-case scenario is if the court overturns it and says that it’s government speech. And what that will mean is, if it is government speech, which is what the state is arguing, it’ll mean the state has total authority to dictate what college professors can say in class.

Bowman: So either way, best or worst, when do you expect that decision?

Edwards: Yes. I would not anticipate a resolution of this case for quite a while. I don’t think the trial will happen before, what year is it? It’s 2024. Before 2025.

The state’s attorneys and governor’s office did not respond to a request for comment from WMNF.

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