Sides battle over Florida’s “Stop WOKE” law, speech rights and academic freedom

UF higher education university
University of Florida, Gainesville, at dawn. By Seán Kinane/WMNF News (Apr. 2023).

By Jim Saunders ©2023 The News Service of Florida

TALLAHASSEE — University professors and students are urging a federal appeals court to uphold a decision blocking a 2022 Florida law that would restrict the way race-related concepts can be taught in classrooms — a law that Gov. Ron DeSantis dubbed the “Stop WOKE Act.”

Attorneys for two sets of plaintiffs filed briefs Friday arguing that the 11th U.S. Circuit Court of Appeals should back a preliminary injunction that Chief U.S. District Judge Mark Walker issued in November against the law. The plaintiffs contend, in part, the law violates speech rights and academic freedom.

“Not since the anti-communist measures of the McCarthy era has a state legislature interfered so directly with the academic freedom of university instructors,” said one of the briefs, filed on behalf of six instructors at Florida A&M University, the University of Florida, the University of South Florida, the University of Central Florida and Florida State University. “It was in that period, when legislatures, like Florida’s today, sought to suppress views they disfavored, that the Supreme Court developed the First Amendment principles of academic freedom.”

But in an April brief filed at the Atlanta-based appeals court, attorneys for the state argued that Walker’s ruling should be overturned, saying it “anoints individual professors as universities unto themselves, at liberty under the First Amendment to indoctrinate college students in whatever views they please, no matter how contrary to the university’s curriculum or how noxious to the people of Florida.”

“The constitutional question in this case thus boils down to this: Who decides what is, and is not, to be taught in Florida’s college classrooms — individual professors or their employer, the state, in prescribing by law the content requirements and standards that govern public universities in setting their course curricula?” the state’s lawyers wrote.

DeSantis made a priority of the law, which he called the “Stop Wrongs To Our Kids and Employees Act,” or “Stop WOKE Act.”

The law lists a series of race-related concepts and says it would constitute discrimination if students are subjected to instruction that “espouses, promotes, advances, inculcates or compels” them to believe the concepts.

As an example, the law labels instruction discriminatory if students are led to believe that they bear “responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin or sex.”

As another example, the law seeks to prohibit instruction that would cause students to “feel guilt, anguish or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin or sex.”

Universities could lose what is known as performance funding if violations of the law occur.

In the April brief seeking to overturn the injunction, the state’s attorneys argued the law is aimed at preventing “invidious discrimination” by university employees and disputed the plaintiffs’ arguments about academic freedom.

“The implications of the district court’s ruling are horrifying,” the state’s brief said. “Under the court’s reasoning, if a university permits the discussion of World War II in a history course within the ‘established curriculum,’ then a professor has a First Amendment right to advocate the viewpoint that the Holocaust is a hoax and Nazis were the good guys. Or if a university permits the discussion of the Jim Crow era within the ‘established curriculum,’ then a professor has a First Amendment right to inculcate the viewpoint that Jim Crow was justified because white people are ‘superior’ to black people.”

But a brief filed Friday by attorneys for University of South Florida professor Adriana Novoa and members of the First Amendment Forum at USF, a students group, said other federal appeals courts have “held that the First Amendment protects scholarship and teaching in higher education.”

“Unable to point to a decision holding otherwise, the state spins up scenarios about Nazi sympathizers and racists,” the brief said. “But unlike the state’s imagined hypotheticals, the Stop WOKE Act imposes actual censorship. It foists serious consequences on faculty for unintentional or trivial violations, and imperils millions of dollars of their institutions’ budgets for a single professor’s remark.”

The 11th Circuit has not indicated whether it will hear oral arguments in the case.

The law also placed restrictions on how race-related concepts can be addressed in workplace training. Walker in September issued an injunction against the workplace-training portion of the law — spurring a state appeal that remains pending.

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