Federal Court Puts the Brakes on Florida’s Stop WOKE Act

4:22-cv-304/324, 2022 WL 16985720 (N.D. Fla, 2022)

By Dan Fotoples, Senior Content Developer, TNG Consulting

The Individual Freedom Act (IFA), otherwise known as the Stop WOKE Act, became law in April 2022 and banned professors at public institutions from endorsing certain viewpoints on a variety of topics in their postsecondary classrooms. The law outlined eight concepts the state deemed repugnant. Endorsement of the prohibited concepts by any professor or staff member could result in liability for the institution. However, there was no such punishment for public rejection of the prohibited concepts.

PROCEDURAL HISTORY

Several professors and students from across the state (“Plaintiffs”) sued, alleging the law violated their constitutional rights under the First and Fourteenth Amendments. They asked the court to grant a preliminary injunction and enjoin enforcement of the challenged provisions of the IFA, preventing state officials (“Defendants”) from enforcing the law.

SUMMARY OF FACTS

The eight prohibited concepts, under the IFA, are:

1. Members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex.
2. A person, by virtue of his or her race, color, national origin, or sex is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
3. 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.
4. 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.
5. 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.
6. 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.
7. A person, by virtue of his or her race, color, national origin, or sex, bears 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.
8. 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.[1]

The IFA stated that these concepts may be included as part of a larger course of training or instruction if the discussion of the topic is in an “objective manner” and “without the endorsement of the concepts.”[2]

Plaintiffs sued, with the professor plaintiffs arguing the IFA violated their First Amendment rights to academic freedom and the student plaintiffs arguing the IFA violated their constitutional free speech and due process rights.[3]  Defendants argued that professors are public employees, and therefore are mouthpieces of the State in postsecondary classrooms. As a result, the State has unfettered authority to limit topics professors may discuss in the classroom. Further, Defendants argued that, even if the court must balance State interests against the professor’s First Amendment rights, the State’s interest will always prevail.

The Supreme Court has never definitively proclaimed that academic freedom is a stand-alone right protected by the First Amendment. That said, the Eleventh Circuit Court of Appeals, of which Florida is a part, has recognized that academic freedom remains an important interest when analyzing professors’ First Amendment claims.[4]

FINDINGS AND SIGNIFICANT ISSUES

To obtain a preliminary injunction, the following elements are required:

1. There is some likelihood of success on the merits of the claim.
2. Traditional legal remedies are inadequate.
3. A party will suffer irreparable harm in the period before resolution of their claim.

Next, the court must weigh the harm that Plaintiffs will suffer, absent an injunction, against the harm to the State from an injunction. The court must also consider whether an injunction is in the public interest.

First, the court examined whether the professors’ First Amendment claims had a likelihood of success. Given previous court cases within the Eleventh Circuit, the court rejected Defendants’ argument that professors’ in-class speech is always pure government speech. Relying upon Bishop v. Aronov, the court applied a balancing test comparing the professor’s First Amendment academic freedom rights with the university’s special interests in enforcing some limitations on that speech.[5]  The balance involves a case-by-case inquiry considering three factors:

• The context
• The university’s position as a public employer and the right to reasonably restrict the speech rights of employees
• The strong preference for academic freedom based in free speech rights of the First Amendment

The context in this case focused on the State of Florida’s passage of a sweeping prohibition on expressing certain viewpoints about eight concepts during training or instruction at universities. The legislation impacts potentially thousands of professors and serves as an ad hoc deterrent that chills speech before it happens. Further, the law did not prohibit discussion of the eight concepts, only certain viewpoints or perspectives on the concepts. Despite the State’s interest and flexibility in setting curriculum, the court held that it cannot impose its own orthodoxy of viewpoint about the content permitted within university classrooms. Therefore, the first factor weighs against the Defendants.

Looking to the second factor in the three-factor analysis, the court examined whether the IFA’s limitations on speech are reasonable and in support of a “weighty interest” to overcome the employee’s right to speak. Defendants asserted that the challenged provisions address the pedagogical concern of reducing racism or prohibiting racial discrimination. Although the court agreed that reducing racism is a legitimate motivating concern for legislation, the viewpoint restriction is “certainly not reasonable.”[6] The court held that the State of Florida could not “do an end-run around the First Amendment” by declaring some viewpoints so repugnant that merely uttering them is per se severe or pervasive under antidiscrimination law.[7]  As such, the court determined that the second factor did not weigh in Defendants’ favor.

Turning to the final element in the analysis, the court again cited Bishop, in which the court found against a professor’s rights to academic freedom because the professor wished to discuss religious content and topics outside the scope of the course curriculum. The court here found Bishop did not control in the current case because the topics at issue would be within the established curriculum of the courses Plaintiffs teach. Additionally, the court repeated, the legislation did not prohibit the topics altogether, only certain viewpoints. Asserting that the IFA cast a “leaden pall of orthodoxy” over Florida’s state universities, the court determined the Plaintiffs’ interest in academic freedom weighs heavily against the State.[8]

Taken together, the balancing test favors the Plaintiffs’ free speech rights over the State’s viewpoint-discriminatory ban. Finding that the Plaintiffs had a likelihood of success on the merits of the First Amendment claims, the court engaged in a cursory analysis of the other required elements of a preliminary injunction, ultimately holding that an injunction was appropriate in this case.

KEY TAKEAWAYS

• Recipients of federal funding, especially public schools and institutions, must continue to navigate emerging state laws that may implicate First Amendment concerns and/or federal nondiscrimination laws, including Title IX. Judicial intervention is not an immediate solution; therefore, it is critical that superintendents, presidents, Title IX Coordinators, legal counsel, and other important stakeholders determine their compliance strategy. What is the institution’s risk tolerance level? On issues where federal and state law seemingly conflict, what liability does the institution face in complying with one law but not the other? What punishments might result from noncompliance with a state law versus a federal regulation? When a district or institution cannot comply with both federal and state law, which path is best?
• If academic freedom may escape precise definition at many colleges or universities, few would likely dispute its importance. However, there is likely a significant difference between how the faculty may define academic freedom as compared to how a federal court may do so. The court’s analysis is instructive for compliance professionals who often find themselves at the intersection of academic freedom, free speech, Title IX, and other federal laws. Here, a balancing test weighed academic freedom against state interest and academic freedom prevailed – but that is not always the result in cases like this one, and there is no guarantee that a preliminary ruling such as this will have the same outcome when tried in court. The court also made a key distinction between speech germane to the curriculum and speech outside the established course curriculum, suggesting a narrower view of academic freedom than many faculty would adopt or accept.
• This type of state legislation is part of a larger culture war playing out at state and federal levels, especially with respect to race and gender. Political operatives may not care that legislation is shot down by courts if it energizes their base. It may also mean that Florida’s legislature may revise the IFA in the future to pass muster with a court if the language is no longer viewpoint-based, though it is not clear how a state legislature might do so. This injunction may throw some cold water on efforts in other states to replicate Florida’s efforts, though again, the value of these laws may be more for political grandstanding than to truly reform the way concepts about race and gender are taught in schools and colleges.

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[1] 4:22-cv-304/324, 2022 WL 16985720 (N.D. Fla, 2022) at 1.

[2] Id. at 2.

[3] This summary focuses on the professors’ First Amendment academic freedom claims.

[4] 4:22-cv-304/324 at 5.

[5] 926 F.2d 1066 (11^th Cir. 1991).

[6] 4:22-cv-304/324 at 29.

[7] Id. at 31.

[8] 4:22-cv-304/324 at 32.