Academic Freedom, Florida-Style
Terry H. Schwadron
June 26, 2024
Florida, facing an academic freedom case in the federal Court of Appeals, is now arguing that faculty members are “government” workers and legally should not be able to criticize the state’s Republican Gov. Ron DeSantis.
The case before three judges of the 11th Circuit Court of Appeals challenges enforcement of the 2022 Stop WOKE Act (legally, The Stop the Wrongs to Our Kids and Employees (WOKE) Act) and how it applies to university campuses that aims to limit the way faculty members at public universities can teach about race and gender.
In truth, of course, it is a case with broad implications in Florida and beyond about academic freedom.
Until now, judges have repeatedly blocked that law from being applied to university classrooms. The NAACP Legal Defense Fund, the American Civil Liberties Union and other groups had won a preliminary injunction to halt its implementation, and they continue to push to have the act’s restrictions on classroom teaching ruled unconstitutional.
In that respect, the arguments for the state floated in the court last week by former Asst. U.S. Attorney Charles (Chuck) Cooper were attention-grabbing. Cooper told the judges that professors’ speech in the classroom is government speech, and “the state, when it is the speaker, can choose what it wants to say.” Cooper said a state can “insist that professors not offer — or espouse, I should say, and endorse — viewpoints that are contrary to the state’s.”
One of the judgers asked at a hearing last week whether the legislature prohibit professors from saying anything negative about a current gubernatorial administration? Cooper said, “I think, your honor, 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.”
Naturally, It’s Political
Cooper is a nationally recognized conservative champion in Washington, who during the Reagan administration made current U.S. Supreme Court Justice Samuel Alito his deputy, and apparently counseled Alito on his eventual nomination to the court.
Risa Lieberwitz, general counsel for the American Association of University Professors (AAUP), told Inside Higher Ed that “the state of Florida is making an extreme argument about the First Amendment that would eliminate academic freedom completely in the classroom.” Keith Whittington, founding chair of the Academic Freedom Alliance and a Princeton University politics professor and author of a book warning about politician influence in the classroom, also called it extreme, adding that if upheld, “It means that political officials, including state legislatures, can simply determine what messages they want conveyed in the classroom, what messages they don’t want conveyed in the classroom.”
Cooper told Inside Higher Ed in an email that “the controlling precedent from the Supreme Court and 11th Circuit clearly and dispositively support the constitutionality of the (Stop WOKE) act.”
Florida’s law, perhaps the nation’s most far-reaching if it does take effect, says the state considers it discriminatory “to subject any student or employee to training or instruction that espouses, promotes, advances, inculcates or compels” them “to believe any of the following concepts.” It then lists the idea that a person “should be discriminated against or receive adverse treatment to achieve diversity, equity or inclusion” and that a person’s status as privileged or oppressed “is necessarily determined by his or her race, color, sex or national origin.”
It also says the list “may not be construed to prohibit discussion of the concepts listed” provided “instruction is given in an objective manner without endorsement of the concepts.” The word “endorsement” isn’t defined.
Leah Watson, an ACLU attorney, argued to the judges that Stop WOKE amounts to unconstitutional viewpoint discrimination. “It only restricts t [faculty members’] personal views if they don’t agree with the state,” Watson said. The law permits professors to “compel, espouse, promote ideas all day long — as long as they’re the ones that the state agrees with.”
Broadening Attacks on the Campus
Basically, the AAUP general counsel, said Cooper’s argument represents “a continuation of the attacks on higher education that we’re seeing over the last few years.”
Former President Donald Trump also issued an executive order curtailing the teaching and advocacy of “divisive concepts” in executive agencies and the military — only to have the order overturned by Joe Biden. This year, we’ve seen race and gender issues spread to banning anti-war statements that are considered too pro-Palestinian or anti-Semitic if they criticize effects of overwhelming Israeli military response in Gaza.
We’ve watch DeSantis lash out at private businesses that criticize him over gay policies or over covid mandates or immigration.
It’s suddenly hard to know just what issue — abortion, guns, transgender experiences, gay pride — will trigger the perceived need to shut down campus conversation as well as rowdiness.
Strangely, of course, the current conservative majority on the U.S. Supreme Court wants to rely on history for proof of constitutionality. A century of history has favored arguments for academic freedom in the classroom over passing political fads, though that may be changing.
The constitutional balance should offer First Amendment protections against public employers, such as public universities, becoming “thought police.” Still, conduct at our public universities shows there is no individual academic freedom right under the First Amendment.
If the courts uphold limits on what professors can say, then scholarship also could be impacted. But that seems to be the appeal to the political Right for such culture war lawmaking.
For perspective, the University of Florida saw a 20-percent increase in tenured and tenure-track faculty resignations in 2022 from 2021. At Florida State, resignations were up 28 percent from the prior year. the AAUP, which has studied DeSantis’ takeover of leadership at the New College of Florida, says “The survival of the institution of higher education free from political interference and the ideological agenda of autocrats — a cornerstone of democratic societies — hangs in the balance” in Florida.
Just what are we afraid of?
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