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Dive Brief:
- A federal appeals court struck down the higher education restrictions under Florida’s controversial Stop WOKE Act on Tuesday, four years after the law took effect.
- The legislation banned faculty from discussing certain topics related to race and gender. It immediately elicited overwhelming backlash from faculty, students, education organizations, unions and free speech advocates.
- In a 2-1 decision this week, the 11th U.S. Circuit Court of Appeals made permanent a lower court’s preliminary injunction against enforcing the law at colleges. “The ideas Florida targets may well be noxious. Or maybe not,” U.S. Circuit Judge Britt Grant wrote for the majority. “Either way, in this context the First Amendment trusts students to figure it out for themselves.”
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Dive Insight:
The Stop WOKE Act, championed by Republican Gov. Ron DeSantis and enacted in 2022, targets discussion at colleges, K-12 schools and state employers. It quickly faced at least two higher ed legal challenges.
One came from a faculty member and students at the University of Florida, represented by the Foundation for Individual Rights and Expression. The other stemmed from a broader group of Florida faculty and a college student who were represented by the American Civil Liberties Union and the group’s Florida chapter, as well as the Legal Defense Fund.
When defending the Stop WOKE Act in court, Florida officials argued that classroom instruction in public universities counts as government speech and is not covered under the First Amendment.
But a federal district judge temporarily stopped the law’s enforcement against colleges in November 2022, calling its restrictions “dystopian” and a direct threat to faculty’s free speech rights.
The federal appeals court agreed on Tuesday and upheld that injunction.
Grant, a Trump appointee, said in the majority ruling that Florida sought to find a legal precedent to justify its speech ban when it began facing lawsuits from professors.
“Finding none, it 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,” Grant said.
The appeals court dismissed this argument.
“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 recognize as centers 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,” Grant said.
Under system regulations to carry out the law, professors have an opportunity to modify their lectures if their instruction violated the restrictions. If they don’t, they risk being fired. Lawmakers cast these procedures as a way for faculty to avoid Stop WOKE’s Act disciplinary penalties.
Grant expressed incredulity over the argument.
“What a remarkable suggestion — that we should bless an unclear, viewpoint-based speech ban simply because the government says it will refrain from penalizing the speaker until after it gives a warning,” she said. “That is a dark kind of mercy.”
The ruling did not address the Stop WOKE Act as it applies outside of the higher education sector, and the law is still active at Florida’s K-12 schools.
Faculty plaintiffs cheered the outcome for colleges Tuesday.
“We are thrilled the court has stopped the erasure of topics that have real implications for our students, allowing them to learn, discuss, and develop tools for combatting the complex issue of racism in our country without being gagged by those who would dictate that only state-approved thought may be promoted,” LeRoy Pernell, a professor at Florida A&M University, said in a statement.
Adriana Novoa, a professor at the University of South Florida, echoed that sentiment, saying the ruling allows instructors “to teach our classes without government interference.”
“As a professor, I shouldn’t have to choose between teaching to the best of my ability or facing punishment,” Novoa said in a statement. “This decision is such a relief to professors who care about their students and want them to become well-rounded and informed.”
DeSantis’ office did not immediately respond to questions Tuesday.
Leah Watson, senior staff attorney with ACLU’s Racial Justice Program, called Tuesday’s decision “worth the wait.”
“It sets a strong precedent that higher education cannot be limited to the whims of politicians,” Watson said in a statement, adding that all students and educators “deserve to have a free and open exchange about ideas without government control.”
Numerous education groups and free speech advocates — including the American Association of University Professors, PEN America, the United Faculty of Florida, and the First Amendment Lawyers Association — filed amicus briefs opposing the Stop WOKE act.
“Today’s ruling makes clear something we’ve known for a long time: Governments cannot censor their way to freedom,” Greg Greubel, senior attorney at FIRE, said in a Tuesday statement. The decision shows that “college remains a place where professors and students are allowed to debate controversial topics — even if politicians disagree with them,” he said