Judges uphold injunction on Florida’s anti-woke act

The United States Court of Appeals for the 11th Circuit (hereafter Appeals) has maintained the suspension of the higher education provisions of Florida’s Orwellian-named Individual Freedom Act (IFA), a classroom censorship law in Florida that banned teaching about race, sex and gender.

The judges wasted little time declaring the grounds by which they ruled to maintain the injunction. The ruling’s first sentence quotes the applicable part of the First Amendment: “Congress shall make no law ... abridging freedom of speech” (Appeals, 3).

The judges said: “Florida’s salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State’s own statutes recognise as centres of inquiry – classrooms where students are trusted to puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth.”

The court said it does not matter if the State of Florida agrees or disagrees with the ideas. “Either way, in this context the First Amendment trusts students to figure it out for themselves.”

Passed into law in April 2022, the IFA, which was originally called the “Stop WOKE Act”, is a signature piece of legislation pushed by Florida’s Republican Governor Ron De Santis. In November 2022 Judge Mark E Walker of the US District Court for the Northern District of Florida issued a temporary injunction on the law.

The law prohibited “training or instruction that espouses, promotes, advances, inculcates or compels ... student or employee to believe” relating to eight topics dealing with race or sex, including: “A person, by virtue of his or her race, colour, national origin or sex [a person] is inherently racist, sexist, or oppressive, whether consciously or unconsciously” and “by virtue of his or her race, colour, national origin, or sex [a person] bears 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, colour, national origin or sex.”

The IFA would also ensure that there could be no discussion in public university classrooms of whether: “A person, by virtue of his or her race, color sex or national origin, bears responsibility for and must 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, colour, national origin or sex” (Appeals, 5 and 6).

Though billed by De Santis as a way to cleanse Florida’s public university of so-called “Woke” topics like Critical Race Theory and other aspects of “cultural Marxism”, critics charged that far from enhancing individual freedom the IFA amounted to what in its 2023 report America’s Censored Classrooms, which covered 2022, PEN America called an “educational gag order” that silenced speech disfavoured by the government of Florida.

On 23 August 2022, the Albany Times Union wrote that the IFA is “an Orwellian name for a statute that DeSantis likes to call the ‘Stop WOKE Act’.”

The following March, even the CATO Institute, a libertarian think tank founded by Charles Koch, published an article saying that while De Santis said the IFA “would ‘elevate intellectual freedom’, such language can be seen as Orwellian considering that the bill restricts or bans the teaching of a number of ideas and concepts at public colleges and universities in the Sunshine State”.

HE cannot be limited to politicians’ ‘whims’

While Governor De Santis has not responded publicly to the court’s ruling at the time of this writing, just after midnight on 8 July, the day after the ruling was handed down, Florida’s attorney general James Uthmeier posted on X: “Barbara Lagoa may be the best jurist in our country. She should be on SCOTUS”, referring to the Supreme Court of the United States. Justice Barbara Lagoa, who was appointed to the court by President Donald J Trump in December 2019, was the lone dissenter.

The majority (2-1) decision written by Justice Britt C Grant, who is also a Trump appointee (August 2018), was welcomed by Leah Watson, senior staff attorney with the American Civil Liberties Union’s (ACLU) Racial Justice Program.

“This ruling sets a strong precedent that higher education cannot be limited to the whims of politicians. All students and educators deserve to have a free and open exchange about ideas without government control.

“Students can’t fight racial discrimination that they don’t see; training and instruction is key to empowering future leaders to pursue racial justice,” she stated.
The ACLU was one of the four plaintiffs, which also included the ACLU of Florida, the Legal Defense Fund (LDF) and the law firm Ballard Spahr on behalf of a group of Florida professors at public universities whose teaching has been impacted by this law.

“Yesterday’s ruling,” Lynn Pasquerella, president of the American Association of Colleges and Universities, wrote in an e-mail to University World News, “is an important affirmation that colleges and universities must remain places where faculty can pursue scholarship and teaching without political interference.

“The ability to examine complex and contested issues – including race, gender, history and inequality – is fundamental to the mission of American higher education.”

She noted: “When governments dictate which ideas may or may not be discussed in the classroom, they undermine both educational quality and the preparation of students for democratic leadership.”
Mara Gassmann, legal director at PEN America (which filed a “friend of the court” brief supporting the plaintiffs), told University World News in an email: “An appellate court for a sizeable part of the US has reaffirmed the role of the college and university classroom as a marketplace of ideas – as a place where inquiry and exploration should be encouraged, not shut off.

“And it reaffirmed that the First Amendment to the US Constitution forbids government from picking and choosing winning and losing ideas and speech and dictating an official line, including in higher education. “And while the contours of academic freedom may be ‘imprecise’, the court affirmed that such freedom exists and that the so-called Stop WOKE Act improperly curtails that freedom.”

Gassmann’s email further explained that while the AIF was not “struck down” as being unconstitutional, rather, since the case is still in what is known in the US as the preliminary stage where the court may take a look at its merits, the Appellate Court maintained the injunction because it believed “the challengers to the law are likely ultimately to prevail”.

Dismissive criticism from the court

The court found that the IAF violated existing state law, including one, the court adumbrates, as saying, the “purpose and mission” of the state’s public universities is to “enable() all students to participate in the search for knowledge and individual development,” to “discover and disseminate knowledge,” to “foster() diversity of educational opportunity,” and to “develop in students heightened intellectual, cultural and humane sensitivities” (Appeals, 30 and 31).

Lacking “an existing case or doctrine that could support its speech ban in the university setting,” Florida’s attorneys “tried to marry public-employee speech cases with government speech doctrine, resulting in a new rule: if the government pays a professor’s salary, it has total control over her classroom speech” (Appeals, 4 and 5).

The court stated: “That is not a blessed union”, and not least of all because in making this argument Florida misrepresented decisions of other courts that did grant the government the right to restrict employee speech – in, for example, managing the workplace like any other employer.

“That authority,” the court insisted, “is designed to allow the government to effectively manage its workplace, not drive out speech it disfavours” – and, the court noted, the government isn’t the employer and doesn’t manage the university workplaces (Appeals, 11).

The 11th Circuit was equally critical of the use of the “government speech” doctrine Florida argued that since it appropriates funds to support public education at state universities, “it is entitled to say what it wishes” and only what it wishes by employees paid, ultimately, by the state (Appeals, 28).

According to the court, this is “a sweeping assertion, and one that is unsupported by the cited government speech precedents. Those cases are about public monuments, licence plates, and the like – not anything close to academic teaching.

“The thrust of their holdings is that when the government speaks, it can choose its message. There is no need, as the Supreme Court put it, for a local government that supports recycling to include a counterargument from the local trash company.”

The court noted: “The classic government speech cases Florida leans on are also about the government itself expressing certain ideas – not banning employees from endorsing others. Even so, the State asserts that ‘if the speech of private individuals proposing licence plate slogans is government speech’, then surely the classroom speech of state-employed educators at state universities is too” (Appeals, 28 and 29).

“But why? Florida does not say,” declares the court in one of its many dismissive comments about Florida’s arguments (Appeals, 29).

‘A dark kind of mercy’

Broadly speaking, one aspect of the “due process” clause of the 14th Amendment requires that laws be written so that they can be applied in a predictable way to all. The AIF’s failure of this constitutional test bears directly on academic freedom, said the court.

“The Act’s [the AIF] effect on academic freedom” (which the court admitted is “celebrated with vigour, but constitutionally defined with only the haziest of lines”) is compounded by its lack of clear definitions. . . . The Act’s language is full of imprecision, which leaves us with some idea of the viewpoints that Florida targets, but little information about the boundaries of those concepts or what it would take to ‘endorse’ them [in the context of a course].

“For example, when a professor assigns a reading for a class that promotes one of the prohibited concepts, is that professor subjecting the student to ‘instruction that espouses, promotes, advocates, inculcates, or compels such student ... to believe’ in the concept? What about when a professor hosts a guest speaker who presents only one side of the debate?

“Or how about a professor who teaches about one of the forbidden concepts using the Socratic method? Would those discussions be ‘objective’? And that is to say nothing of the lack of clear language in the ‘individual concepts’ definitions. Just to name one, what does ‘morally superior’ encompass, and against whose perspective is it measured?” (Appeals, 46).

The court was equally dismissive of Florida’s argument that “Moderation [of the harshest penalties in the law] is said to be found in the fact that professors will have the opportunity to clean up their courses after their shortcomings are identified.”

“What a remarkable suggestion – that we should bless an unclear, viewpoint-based speech ban simply because the government will refrain from penalising the speaker until it gives a warning. That is a dark kind of mercy,” said the court, throwing as much shade as it could on the government of Florida” (Appeals, 47).

‘Academic freedom cannot be taken for granted’

Time and again the court shows its faith in students and underlines the importance of academic freedom. Of the first, the court writes near the beginning, “Florida’s salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State’s own statutes recognise as centres of inquiry – classrooms where students are trusted to puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth” (Appeals, 4).

Of the second, academic freedom, the court cites the metaphor, first used by the SCOTUS in 1967, which compared academically free classrooms to a “marketplace of ideas”.

A decade earlier, the 11th Circuit Court noted, the SCOTUS said: “The essentiality of freedom in the community of American universities is almost self-evident. . . . To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation.”

And in 1969, the SCOTUS wrote: “Teachers do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate’”(Appeals, 23).

When faced with a choice between Florida’s assertion that by limiting speech in the state’s lecture halls and seminar rooms, it is merely “seek[ing] to protect its ‘most cherished ideals’,” and academic freedom, the court did not hesitate to declare that the justification of protecting ‘cherished ideals “fails too”.

For not only does the AIF fail to indicate what they are, the court noted in pungent language that the government “has plenty of ways to promote its own viewpoint, puppeteering every university professor in the state is not one of them” (Appeals, 13).

Option to appeal to SCOTUS remains

The American legal system is divided between state and federal courts. This case originated in the federal district court because the plaintiffs grounded their claims on the 1st and 14th amendments to the United States Constitution. Accordingly, Florida’s appeal of the injunction was heard by a federal appeals court.

The government of Florida has the option of appealing the decision handed down yesterday to the SCOTUS, which has the option to take the case or refuse, which will mean that the 11th Circuit’s decision about the injunction stands.

The 11th Circuit covers Florida, Georgia and Alabama, and, as such, this decision is binding on federal district courts in those states. In her email, Gassmann told University World News that it will also have “persuasive authority in many courts across the country”.

She stated: “We hope states like Texas and others considering classroom restrictions will take note of the strong reasoning here, and we anticipate that certainly other states will be watching closely.

“As it repeatedly states, the court takes no position on the underlying content that the drafters of the law push, but instead, it places the highest value on individuals receiving access to information so they can decide for themselves, and our educational spaces remain a marketplace of ideas rather than a locus of official dogma.”

When asked how she would want individuals outside the United States to view this ruling, Gassmann wrote: “Our interpretations of both the law and underlying legal principles are not static and that people must be engaged in offering compelling reasons and support to ensure that the freedoms we have are protected into the future.

“Academic freedom, and the freedom to learn, are valued highly in the United States, but they cannot be taken for granted.

“We as citizens need to do a better job of explaining to audiences why concepts like academic freedom matter: namely, that they guarantee not only faculty rights but also the ability of students to access an education free of government censorship. This is a principle we should all defend,” she wrote.

For her part, Pasquerella believes that the decision’s defence of academic freedom “protects the rights of faculty to present evidence, encourage critical inquiry and engage students in thoughtful discussion. It does not require agreement with particular viewpoints, but it does require the freedom to ask difficult questions and explore competing perspectives.

“The court’s decision reinforces the longstanding principle that students are best served when faculty are free to teach according to the standards of their academic disciplines rather than political mandates.

“At a time when public trust in higher education depends on our commitment to open inquiry, this ruling underscores the importance of protecting the conditions that allow teaching, learning and discovery to flourish,” wrote Pasquerella.