11th Circuit upholds injunction against Florida's Stop WOKE Act

By Tal Fortgang

Topics: Education | Politics and Law | The Social Order

Florida's war against woke indoctrination has hit a speedbump. On July 7, a panel of the 11th Circuit Court of Appeals affirmed a lower court's injunction against the Stop WOKE Act, the state's attempt to ban public university employees from inculcating trendy beliefs about racial superiority and privilege. Professors at taxpayer-funded universities remain free to teach that "a person's moral character or status as either privileged or oppressed is necessarily determined by his or her race," among other similar concepts Stop WOKE targeted.

Free-speech maximalists and opponents of Florida's rightward shift are understandably celebrating. Judge Britt Grant's majority opinion is well-reasoned and defensible, in line with the judiciary's principled yet expansive interpretation of the First Amendment in recent decades. But those celebrating this decision should be careful what they wish for.

What the case of Pernell v. Florida Board of Governors shows most clearly is that professors are adamant about the need to use universities to indoctrinate students into controversial and contestable worldviews. Recognizing that this is inimical to the mission of public universities, states will find other ways to take control of their schools. The constitutional way to fix this problem is a broader and deeper overhaul of higher education.

Why Is Stop WOKE Unconstitutional?

Writing for a two-judge majority, Judge Grant concluded that the higher-education portion of the Stop WOKE Act likely violates the First Amendment because it prohibits public university professors from endorsing certain viewpoints while permitting endorsement of their opposites. It is, without question, viewpoint discrimination—though that alone does not make a law unconstitutional. Banning classroom speech based on its content could be acceptable if educators were violating "well-understood parameters—personal tangents irrelevant to the subject matter, conspiracy theories, and the like."

Rejecting Florida's argument that professors' classroom instruction constitutes government speech or unprotected public-employee speech, Judge Grant reasoned that public universities occupy a constitutionally distinct role as centers of intellectual inquiry and that Supreme Court precedent recognizes a special concern for academic freedom in higher education. "Coercing university faculty (and by extension the students) into avoiding a certain set of ideas," she writes, is "dangerous" to "the very environments traditionally regarded as laboratories for expression and truth seeking."

A Narrow Law

Constitutionality aside, it bears noting that Stop WOKE is a narrow law. Instead of going after corruption of the university root and branch, Florida lawmakers aimed to identify a few categories of noxious ideas that have found fertile ground in schools, and banned their being "espouse[d], promote[d], advance[d], inculcate[d], or compel[led]" in instructional settings. Compared with the federal government's recent civil rights enforcement efforts, or other wholesale reclamations of schools by the states that fund them, that is a focused policy prescription.

The Dissent

Judge Barbara Lagoa begins her dissent with an emphasis on the law's narrow application. The statute does not bar "discussion and debate" of racialism, privilege, and systemic theories of oppression but does prohibit professors using the guise of academic freedom to "endorse" or "promote" them. For plaintiffs to have standing to sue for a First Amendment violation, then, they must allege either that:

• The law's terms are chilling because they are vague—an argument Judge Grant credits—or
• Each plaintiff did indeed intend to indoctrinate his or her students.

Incredibly, the professors seeking to enjoin Florida's law did the latter. A footnote from Judge Lagoa, repeating the findings of the district court, underscores this point.

Finally, a reason to check your email. Sign up for our free newsletter today.