Eleventh Circuit strikes down Florida law restricting university professors' speech on race and sex

Below are excerpts from today's lengthy opinion in Pernell v. Fla. Bd. Governors of State Univ., written by Judge Britt Grant and joined by Judge Charles Wilson. The leading Eleventh Circuit precedent on this matter is Bishop v. Aronov, which both opinions discuss in considerable detail.

A. The Challenged Provision

The provision at issue prohibits any "training or instruction that espouses, promotes, advances, inculcates, or compels" students at Florida's public colleges and universities to believe any of the following eight concepts relating to race and sex:

• Members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex.
• A person, by virtue of his or her race, color, 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, color, national origin, or sex.
• Members of one race, color, national origin, or sex cannot and should not attempt to treat others without respect to race, color, national origin, or sex.
• A person, by virtue of his or her race, color, 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, color, national origin, or sex.
• A person, by virtue of his or her race, color, national origin, or sex, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
• A person, by virtue of his or her race, color, sex, or national origin, bears personal 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, color, national origin, or sex.
• Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, national origin, or sex to oppress members of another race, color, national origin, or sex.

Key points about the law:

• While "promoting" any of these concepts is barred, criticizing them is not.
• Instructors may introduce the ideas in a neutral fashion, permitting discussion "as part of a larger course" — so long as "instruction is given in an objective manner without endorsement of the concepts."
• The law does not specify how far beyond the classroom its restrictions extend; off-campus speeches and other settings may be affected.
• The Act's terms apply to all public schools, from kindergarten through graduate school, but the plaintiffs challenge only its application to postsecondary schools.

B. The Government Speech Argument

The defendants argue that because Florida "appropriates public funds" to support public education at the State's universities, it is "entitled to say what it wishes" at those universities under the government speech doctrine.

The court rejected this as "a sweeping assertion" unsupported by cited precedents:

"Those cases are about public monuments, license 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 further noted:

• The classic government speech cases involve the government itself expressing ideas — not banning employees from endorsing others.
• Florida asserts that "if the speech of private individuals proposing license plate slogans is government speech, then surely the classroom speech of state-employed educators at state universities is too." But the court asked: "Why? Florida does not say…."
• Universities do have control over their own curricula — they need not offer every class a student would like to take — but "that does not resolve, or really even address, the issues in this case."

Factors considered in determining whether the government is speaking include:

• Whether the government maintains control over the speech
• Whether the type of speech has traditionally communicated government messages
• Whether the public would reasonably believe that the government has endorsed the speech

The court first considered whether the government maintains control over the speech here, noting that the State has traditionally exercised relatively little control over postsecondary academic instruction.