Judge strikes down Florida’s ‘anti-woke’ law for universities

Florida’s public and private universities will not be able to enforce one of Republican Governor Ron DeSantis’ signature pieces of legislation limiting academic freedom after a federal judge issued an injunction against it on 17 November.

The legislation, signed into law by DeSantis with great fanfare earlier this year, and dubbed the “Stop the WOKE Act”, was touted by DeSantis and his supporters in the Florida legislature as a way to silence supposed left-wing professors and “cultural Marxists” and rid the state’s lecture halls of such topics as Critical Race Theory, which, they said, teaches students to hate America and forces white students to feel guilty about racial history pre-dating their birth.

In his 139-page decision, Judge Mark E Walker of the US District Court for the Northern District of Florida came out swinging, quoting George Orwell’s 1984 in his first sentence: “It was a bright cold day in April, and the clocks were striking thirteen.”

He then glossed Orwell’s words in a footnote that borrows from a 2015 decision of the First US Circuit Court: “In this case, the defendants’ ‘argument is like the thirteenth chime of a clock: you know it’s wrong, but it causes you to wonder about everything you heard before’.”

State ‘doublespeak’

On page two he declared the redubbing of the act “the Individual Freedom Act (IFA)” to be “in line with the state’s doublespeak”. He described the claim of the defendants that under the IFA “professors enjoy ‘academic freedom’ so long as they express only those viewpoints of which the state approves” as “positively dystopian”.

The “Stop Wrongs to Our Kids and Employees Act” (Stop the WOKE Act), now IFA, aims to prohibit “training or instruction that espouses, promotes, advances, inculcates or compels . . . student or employee to believe” eight specific concepts. Among them are:

• A person, by virtue of his or her race, colour, national origin or sex is inherently racist, sexist, or oppressive, whether consciously or unconsciously;

• A person’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, colour, national origin or sex;

• A person, by virtue of his or her race, colour, national origin, or sex 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;

• Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colour blindness are racist or sexist, or were created by members of a particular race, colour, national origin, or sex to oppress members of another race, colour, national origin or sex.

The IFA included a so-called “savings clause” under which these concepts could be discussed in class so long as professors did so “in an objective manner without endorsement of the concepts”. As Walker found, however, the logic of the bill and regulations that followed vitiated the “savings clause”.

Instead, professors faced disciplinary measures including termination if they – or guest speakers – stepped over the line and defended affirmative action or used Critical Race Theory as a lens which focused attention on how, for example, banking practices and zoning regulations prevented blacks from attaining mortgages in areas where white home owners predominated.

Walker completely rejected the argument put forward by lawyers for the Florida State Board of Governors and the University of South Florida Board of Trustees that “because university professors are public employees, they are simply the State’s mouthpieces in university classrooms” and, therefore, that the “State has an unfettered authority to limit what professors may say in class”.

A ‘first skirmish’

Pointing to DeSantis’ (60-40) re-election victory two weeks ago and the speculation that he will run for the Republican nomination for president in two years, Clay Calvert, professor of law and Brechner Eminent Scholar in Mass Communication, and director of the Marion B Brechner First Amendment Project (at the University of Florida, Gainesville), said the case is “simply the first skirmish in what is likely to be a protracted battle between the state of Florida and the plaintiffs.

“The state of Florida has already said it will appeal the decision to the US Court of Appeals for the 11th Circuit. There, it will be heard by a three-judge panel, so that could make a difference.

“Judge Walker’s decision is unsurprising. He had already ruled against the University of Florida in the expert witness case [in which the university had attempted to prevent three professors from appearing in court as expert witnesses called to speak against a bill many considered to be designed for voter suppression].

“This decision is a huge victory for academic freedom of professors when speaking in their classrooms. It is also a victory for students at public universities in the state of Florida [keen] to receive viewpoints on issues that may be deemed contentious or controversial,” said Calvert.

Overreach by state

Walker’s decision provides a window into the thinking of the state of Florida. He recorded how at the oral arguments, the state’s attorney admitted the long phrase, “[a] person, by virtue of his or her race, colour, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity or inclusion”, actually meant “affirmative action”.

Further, he narrated, the state’s attorney asserted, that “the idea of affirmative action is so ‘repugnant’ [to the state of Florida] that instructors can no longer express approval of affirmative action as an idea worthy of merit during class instruction” – despite the fact that federal law authorises affirmative action in a number of areas, including university admissions.

In showing the overreach of the state of Florida’s position, Walker wrote that affirmative action, is so “noxious to the people of Florida” (these words come from the defendant’s lawyer) that in practical terms, a law professor would be enjoined from inviting Supreme Court Justice Sonia Sotomayor into their class to discuss her experiences in law school as related in her autobiography published in 2013. For, as she wrote, she benefited from affirmative action programmes at Princeton and Yale. Once through what she calls “a special door”, she worked relentlessly, receiving prizes, graduating summa cum laude and earning a spot on the Yale Law Journal.

Against classroom orthodoxy

While it is generally assumed that the First Amendment to the US Constitution prevents the government from ever limiting speech, this is not the case. Famously, in 1919, writing for the majority on the court, the great Supreme Court Justice Oliver Wendell Holmes Jr wrote, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.”

Nor has the Supreme Court, Walker noted, definitively proclaimed that “academic freedom” is a stand-alone right protected by the First Amendment. Indeed, his own circuit, the 11th, rejected this view in 1991. Yet, a series of cases at both the appellate and Supreme Court levels assert that the First Amendment does not “tolerate laws that cast a pall of orthodoxy over the classroom”.

As early as 1957, the Supreme Court ruled that having to allocate scarce resources, a university should be allowed “to determine for itself on academic grounds who may teach, what may be taught, how it should be taught, and who may be admitted to study”.

The court rejected Florida’s assertion that precedents saying that because elementary and high school principals could control content of student publications also meant that universities – under the direction of the State Board of Governors acting in accordance with the IFA – could control professor’s speech; indeed, Walker noted that the Supreme Court explicitly refused to extend this argument to universities.

The right to receive speech

While not new to legal scholars, Calvert said that one of the notable aspects of Walker’s ruling was his locating in the First Amendment not only speech but, from the student plaintiffs’ point of view, the right to receive speech.

“It’s not just the right to speak but the First Amendment also includes an implied First Amendment right to receive speech. Judge Walker clearly recognised that students have a right to receive these points [ie, professor’s speech on contentious issues].”

Walker reached the conclusion that “the student plaintiffs’ right-to-receive information claims are co-extensive with the professor plaintiffs’ free speech claims” by noting that the wording of the Florida statute clearly limits what can be heard in class: “It shall constitute discrimination . . . to subject any student or employee to training or instruction that espouses, promotes, advances, inculcates or compels such student or employee to believe any of the following concepts …”

The words ‘training’ and ‘instruction’ offend the First Amendment because they prevent hearing ideas.

Though Walker did not name it, central to the judge’s argument is a concept, familiar to literary theorists and communications scholars, that comes from the work of philosopher Júrgen Habermas, for example.

In his Theory of Communicative Action (1981), Habermas argues, in short, that each person’s utterance is predicated on the anticipation not only that it will be heard and decoded but that it will generate an expected linguistic response – turning whoever was the receiver into a speaker. Communication, either verbal or written, is a process that requires two individuals: a sender and a receiver; even the clichéd image of a poet writing alone in a Paris garret has both: the poet as writer and then as reader of their own work.

Citing cases from 1982 and 1965, Walker teased out the First Amendment’s right to speak and how it necessarily includes the right to be heard. The right to receive information “flows ineluctably from the sender’s right to send them … The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive or consider them.”

Citing further, Walker said the right to receive information “is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom”. Florida’s IFA thus violated the students’ rights to hear and then speak.

‘Void for vagueness’

Walker also found that the IFA offended the Fourteenth Amendment’s Due Process Clause under which laws that regulate actions must contain clear definitions of the actions that are forbidden. Florida’s lawyers argued that the IFA was written in plain language and was understandable to people of normal intelligence and, especially, to the professor plaintiffs, several of whom were political scientists.

In siding with the professors and students, Walker agreed that the IFA was riddled with undefined terms, such as “promote” in the context of a lecture on, for example, Critical Race Theory in a course on the history of anti-black discrimination. One professor plaintiff told the judge he was not sure how to interpret the IFA prohibition on “promoting the concept that my students should not attempt to treat their audience without respect to their racial identities”.

A few pages later, Walker zeroed in on a sentence in the IFA with a triple negative, saying it is “mired in obscurity bordering on the unintelligible”. The sentence reads, “Educators cannot endorse the view that [m]embers of one race, colour, sex or national origin cannot and should not attempt to treat others without respect to race, colour, sex or national origin” (emphasis in the original).

Citing a 2019 case, and in words many professors have wanted to write on first-year students’ papers, Walker said that part of the IFA “features a rarely seen triple negative, resulting in a cacophony of confusion”.

In addition to its infringement on First Amendment rights, Walker declared the IFA “void for vagueness” and, therefore, enjoined the State of Florida or its agents from enforcing any regulations or penalties created to accord with the IFA.

Prospects of an appeal

In appealing the injunction to the 11th Circuit’s Appeal Court, the State of Florida hopes that the three-judge panel (chosen at random from the 13 judges who sit on 11th Circuit’s appellate division) will overrule Walker.

“Who is picked to be on the panel,” Calvert told University World News, “is going to be very important. It will matter if they are Trump or Obama appointees or Bush or Clinton appointees. It shouldn’t matter, since judges are supposed to be neutral. But in today’s political reality, who the judges are will probably make a difference, especially if they are Trump appointees from the Federalist Society.” (Five members of the US Supreme Court are members of the society, which teaches the interpretive doctrine of ‘Originalism’, the belief that the Constitution’s meaning is what it was when it was written.)

Whatever the Appeals Court decides, Calvert believes that decision will most likely be appealed to the Supreme Court.

“The State of Florida has an incentive to appeal given that DeSantis is likely to run for the Republican nomination for president. The issue has a lot of national interest given the controversy over the teaching of the tenants of Critical Race Theory across the country at both the high school and college level. So, this issue has national interest.”

The Supreme Court is under no obligation to take the appeal from the appellate court. If it does not, the Appeals Court’s decision stands for those states in the 11th Circuit: Florida, Georgia and Alabama.