State asserts expansive control over classroom speech in ‘Stop WOKE Act’ appeal

University of South Florida. Credit: USF Facebook pageQuality Journalism for Critical Times

The state of Florida is free to forbid college professors from criticizing the governor in the classroom, an attorney argued on behalf of the state during an appellate court hearing over the Stop WOKE Act — adding that those professors are free to seek work elsewhere if they don’t like a legislature-controlled curriculum.  

Academic freedom and when the government can insert itself into the classroom were focal points for a U.S. Circuit Court of Appeals for the Eleventh Circuit panel consisting of judges Charles Wilson, appointed by former President Bill Clinton; and Britt Grant and Barbara Lagoa; both appointed by former President Donald Trump.

That response came from Charles Cooper, representing the state, during oral arguments Friday.

“Yes, because in the classroom, the professor’s speech is the government’s speech, and the government can restrict professors on a content-wide basis and restrict them from offering viewpoints that are contrary to … ,” Cooper said  before one of the judges interrupted him.

The panel asked Cooper whether the state was OK with students in Florida learning entirely different sets of facts than in states with different politics. 

“That’s the genius of federalism, your honor,” Cooper said. “These are state institutions and the states themselves get to make decisions on the content of the courses taught in their schools, and that includes viewpoints, your honor.”

If professors cannot conform to the state’s commands, Cooper said, they can seek states “friendlier to their viewpoints.”

Cooper insisted the state has the ultimate authority to decide course content. 

“There is no case – they have cited none and we have found none – that holds that individual professors have a right of academic freedom to override and contradict the course content choices of their university and certainly not of the state legislature,” Cooper said. 

The law

The appeal in two challenges to the Stop WOKE Act (formally the Individual Freedom Act) centers around higher education instructors who felt the law was restricting their freedom of speech. Gov. Ron DeSantis signed the act into law in 2022, making it illegal for schools or businesses to offer viewpoints on certain topics related to race, color, national origin, or sex. 

Some of the outlawed viewpoints include that:

“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.”

And that “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.” 

Ability to learn

Plaintiff LeRoy Pernell, a professor at the Florida A&M University College of Law, argued in a written statement that the law puts at stake the ability of society “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.”

The American Civil Liberties Union, ACLU of Florida, NAACP Legal Defense Fund, and Ballard Spahr law firm represent the university plaintiffs.  Arguing before the court Friday were Leah Watson of the ACLU of Florida and Greg Greubel of the Foundation for Individual Rights and Expression.

A federal trial court ruled in August 2022 that the state of Florida was attempting to impose its stance on the existence of systemic racism and sexism in the workplace and public schools in violation of the First and Fourteenth amendments.

“You can’t censor your way to freedom”

Greubel argued on behalf of Adriana Novoa, a history professor at the University of South Florida, that “you can’t censor your way to freedom.”

“It’s much more concerning to give the state legislature the power to redefine objectivity, to tell students what to believe,” Greubel said. 

“The only way that you get to any of these terrible hypotheticals that the state advances that people will be teaching — that the holocaust never happened, or any other kind of conspiracy theories — is if the state gets the power to do that; if the state says, ‘Here’s the conspiracy theory and don’t debate it, don’t talk about it, just accept our version of the truth.’ That is something that we’ve never allowed the government to do, especially in the area of higher education.”

Students go to college expecting free debate, Greubel added. 

“We do not assume that our students’ minds need to be coddled,” Greubel said. “We assume that our students need to be engaged in very rigorous debate with one another.” 

Watson of the ACLU insisted that professors enjoy First Amendment rights in the classroom, although they are not unlimited. 

“They’re balanced against the university’s interest in effective teaching on a case-by-case basis,” Watson said. “The university, as I mentioned, has to uphold non-discriminatory academic standards. The line is that they uphold the academic standards. They have to fulfill the mission of the university. What they cannot do is suppress viewpoints.”

She added: “It’s very rare for the legislature to reach so far into the classroom but, when it has happened, the [U.S.] Supreme Court has been clear about the parameters of academic freedom.” 

Cooper conceded the law would be unconstitutional if applied to private colleges. The key, he continued, is to balance the interests of public employees against those of the state. Professors are state employees and therefor limited in speech by what the state mandates, he said. 

The restrictions apply only in class and conversations outside the classroom if related to teaching, he said. 

The purpose of the law is “only to suppress disfavored views,” Watson maintained. “And this is important, because the classroom is peculiarly the marketplace of ideas. It is where you go to debate, critique and discuss contradictory views.”

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