Instead of the state determining what will be taught in university classrooms, students must be free to hear and consider even officially disfavored ideas presented to them by professors, a federal appeals court ruled Tuesday.
More than two years after oral arguments in a case challenging the 2022 law dubbed the Stop WOKE Act, two out of three judges on a U.S. Court of Appeals for the Eleventh Circuit panel affirmed two lower courts’ rulings that the law is unconstitutional.
The Stop WOKE Act tried to curb teaching identity-based content such as Critical Race Theory, which experts say is about “acknowledging how racial disparities are embedded in U.S. history and society.”
Gov. Ron DeSantis, at the time amassing a record he would cite while running for the GOP nomination for president, wanted to stop what he called “indoctrination” in classrooms.
“The ideas Florida targets may well be noxious. Or maybe not. Either way, in this context the First Amendment trusts students to figure it out for themselves,” Judge Britt Grant, an nominee of President Donald Trump, wrote for the majority in a 52-page ruling.
Judge Charles Wilson, who was appointed by former President Bill Clinton, joined Grant in the majority.
The law prohibited teaching that “promotes” or “compels” students to believe eight concepts spelled out in statute, including:
- That any race is “morally superior.”
- That anyone is “inherently racist, sexist, or oppressive.”
- Someone is responsible for actions committed in the past by members of their race.
- That “such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist.”
Grant questioned how one might referee alleged violations of the law.
“Just to name one, what does ‘morally superior’ encompass, and against whose perspective is it measured?” she wondered.
The Eleventh Circuit had already ruled part of that same law unconstitutional in 2024 — the piece prohibiting mandatory private workplace trainings endorsing diversity based on race, sex, and nationality.
“The language here is identical, but the academic context puts us at an unprecedented First Amendment intersection: viewpoint discrimination meets public-employee speech, meets government speech, meets academic freedom,” Grant wrote.
It was the second loss before the Eleventh Circuit for the DeSantis administration on a “woke” higher education issue in as many days.
“If the First Amendment offers any boundary of protection at all for public university classrooms, this statute crosses it,” Grant wrote.
The Phoenix has asked representatives of DeSantis and Attorney General James Uthmeier for comment but hasn’t heard back yet.
Uthmeier did comment on X: “According to the CA11 panel majority, public university professors have a First Amendment right to teach white supremacy and critical race theory, and the legislature cannot pass laws that say otherwise. Totally incoherent and inconsistent with the intent of the First Amendment.”
Combination
The court combined two groups of professors’ lawsuits into one. One was filed in 2022 by University of South Florida Latin American history professor Adriana Novoa and one student who said the law constrained discourse.
The other lawsuit, with lead plaintiff LeRoy Pernell, a law professor at Florida A&M University, was filed days after the other suit by professors from across the state and a student.
Both cases were appealed to the Eleventh Circuit and consolidated.
The majority felt penalties for violating the laws were “steep.” Universities found in violation were subject to losing performance-based funding, worth millions of dollars annually, as well as potential termination for professors who refuse to comply.
“Moderation is said to be found in the fact that professors will have the opportunity to clean up their courses after shortcomings are identified. What a remarkable suggestion — that we should bless an unclear, viewpoint-based speech ban simply because the government says it will refrain from penalizing the speaker until after it gives a warning. That is a dark kind of mercy,” Grant wrote.
When signing the law, DeSantis viewed it as stopping “indoctrination” in classrooms.
Critics argued it would whittle away at academic freedom afforded to professors, who’ve spent years researching their disciplines.
“The State asks us to consider its rules a means of targeting discrimination,” Grant wrote. “But hearing an idea you disagree with is not discrimination; it is an opportunity to come up with a better idea, or maybe even change your mind.”
The state’s approach framed professors’ speech as something to be controlled by the state.
“Because the government pays the professors’ salaries, Florida says, their speech is the State’s speech. Emphatically no. The Florida defendants cannot ‘put together half a donkey and half a camel, and then ride to victory on the synthetic hybrid,’” Grant wrote.
The state attempted to argue it was trying to “protect its ‘most cherished ideals,’” Grant wrote, not buying the argument.
“Though the government has plenty of ways to promote its own viewpoint, puppeteering every university professor in the state is not one of them,” Grant wrote.
Following oral arguments more than two years ago, the Phoenix reported, “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.”
Two years later, the panel responded, explicitly mentioning the exchange in which the state argued it could censor professors from talking poorly about a particular gubernatorial administration.
“We give the State credit for not feigning limits that its theory lacks, but the chimeric government speech doctrine it conjures cannot withstand constitutional scrutiny,” Grant wrote.
During oral arguments in 2024, the panel of judges asked the state’s attorney, Charles Cooper, whether the administration 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.”
Dissent
One of the three judges dissented — Barbara Lagoa, a Trump appointee (and former DeSantis appointee to the Florida Supreme Court).
“Put simply, the statute distinguishes between the discussion and debate of discriminatory ideologies, which is permissible, and their endorsement or promotion by the professor, which is not,” Lagoa wrote.
Lagoa argued the law allows professors to discuss “discriminatory concepts but not endorse or compel them.”
“Consider a professor who says that Hamas’s October 7th attack on Israel was ‘exhilarating’ and something to be celebrated and encouraged. If the professor made that statement as part of classroom instruction, would a Jewish student feel at liberty to wear his kippah or voice contrary views in the classroom, in a graded paper, or on an exam? Doubtful,” Lagoa wrote.
Reaction
One of the cases was argued by attorneys with the ACLU and the other by the Foundation for Individual Rights and Expression.
“We are thrilled the court has stopped the erasure of topics that have real implications for our students, allowing them 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,” Pernell, a Florida A&M University College of Law professor and plaintiff in this lawsuit, said in a news release from the ACLU.
“Our classrooms are meant to be rooms of curiosity, creativity, and learning. When we stifle this kind of critical thinking, we risk losing our education system as we know it,” said Carrie McNamara, senior staff attorney for the ACLU of Florida.
According to FIRE, six other circuits have ruled similarly on similar laws, and no courts have reached a different result.
“Today’s important decision means that college remains a place where professors and students are allowed to debate controversial topics — even if politicians disagree with them,” FIRE attorney Greg H. Greubel said in a news release. “Today’s ruling makes clear something we’ve known for a long time: Governments cannot censor their way to freedom.”
Other reactions included:
PEN America Florida director William Johnson: “Colleges and universities prepare students to weigh evidence, challenge assumptions, and wrestle with competing ideas. The freedom to read and the freedom to learn depend on the freedom to teach. Florida students deserve classrooms where educators can present challenging ideas without fear of government punishment.”
Florida Education Association President Andrew Spar: “For too long, ideas and concepts that encouraged critical thinking were blocked simply because some Florida leaders didn’t agree. This ruling is clear — you cannot limit the rights of others just because you don’t like what they say.”
United Faculty of Florida President Robert Cassanello: “The Governor and lawmakers cannot compel us to repeat state drafted political speech to our students. Our First Amendment right to free speech has never and will never hinge on who happens to lead our state.”
–Jay Waagmeester, Florida Phoenix
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