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Federal Judge Puts Desantis’ “Stop WOKE” Law to Sleep, Again.

November 23, 2022

Florida governor and likely 2024 presidential candidate, Ron Desantis, wants to regulate classroom speech in the name of freedom.

Dystopian is the word for it, and (thank goodness) a federal judge agrees.

Specifically, the Desantis-promoted legislation, originally called the Stop W.O.K.E. Act and later finessed to a more palatable title, the Individual Freedom Act (IFA), became Florida law in April 2022. IFA is comprised of eight prohbited concepts.

To date, three lawsuits have been filed against Desantis’ speech-stifling legislation, including one concerning Florida’s K12 classrooms. All three fall within Chief U.S. District Judge Mark Walker’s Tallahassee jurisdiction.

To date, Judge Walker has ruled on two of the three suits.

First of all, in August 2022, Walker granted plantiffs a preliminary injunction to block the law from taking effect in Florida’s private-sector workplace even as he refused to place a stay to keep the law in place during appeal.

The August 2022 ruling was one of the three and was filed in June 2022 by the private sector, representing two Florida companies and a social activist.

Below is part of Walker’s wry opening to that August 2022 ruling:

Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.

That statement captures a key issue for those of the extreme right-wing when it comes to language:

I can say and do what I want, and what I want is for those who do not agree with me to be limited in what they speak and read, all while branding my muzzling others via some top-shelf American term, like *freedom* (or *liberty*…).

From page 22 of Walker’s August 2022 ruling:

In short, the IFA does not target trainings because they are mandatory; the IFA targets trainings because of the speech delivered at them. Indeed, without violating the IFA, an employer could fire an employee for refusing to attend a training condemning the covered topics. Because the IFA targets only those viewpoints with which the State disagrees, even assuming Florida could ban mandatory employee trainings in toto, the IFA still triggers strict scrutiny as a viewpoint-based restriction on speech.

From page 42 of Walker’s August 2022 ruling:

In the end, Defendants suggest that there is nothing to see here. They say the IFA does nothing more than ban race discrimination in employment. But to compare the diversity trainings Plaintiffs wish to hold to true hostile work environments rings hollow.

Florida state strategy: 1) When questioned, paint the slant as level. 2) Equate expression of non-state-sanctioned viewpoints with workplace hostility.

Judge Walker was having none of it.

According to Reuters, Florida officials’ justification for IFA’s so-called “individual freedom” is that the state has the right to regulate the speech of its employees, including all teachers, K12 and beyond. Of course, such a position falls through when it comes to the state also positioning itself to regulate speech in the private sector, but the state of Florida tried to have it both ways: Blanket censorship because one is employed by the state and even if one is not.

War is peace.

Freedom is slavery.

Ignorance is stength.

One of the three suits noted above was brought by the board of governors of the Florida State University System; on November 17, 2022, Walker blocked the Desantis Dystopian Law from taking effect in Florida’s postsecondary classrooms.

Two out of three rulings thus far, one in August 2022, and one in November 2022.

Below, I offer some excerpts from Walker’s 139-page, November 2022 ruling. For ease of reading, I have removed in-text cites and have also incorporated a couple of footnotes.

Walker’ begins his November 2022 ruling by quoting Orwell:

“It was a bright cold day in April, and the clocks were striking thirteen,” and the powers in charge of Florida’s public university system have declared the State has unfettered authority to muzzle its professors in the name of “freedom.” (Footnote: “In this case, Defendants’ ‘argument is like the thirteenth chime of a clock: you not only know it’s wrong, but it causes you to wonder about everything you heard before.’”) “To confront certain viewpoints that offend the powers that be, the State of Florida passed the so-called “Stop W.O.K.E.” Act in 2022—redubbed (in line with the State’s doublespeak) the “Individual Freedom Act.” The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints. Defendants argue that, under this Act, professors enjoy “academic freedom” so long as they express only those viewpoints of which the State approves. This is positively dystopian. It should go without saying that “[i]f liberty means anything at all it means the right to tell people what they do not want to hear.”

Continuing a bit further in the ruling (page 8), in which the state maintains that it owns its employee’s words:

Defendants respond that the First Amendment offers no protection here. They argue that because university professors are public employees, they are simply the State’s mouthpieces in university classrooms. As a result, Defendants claim, the State has unfettered authority to limit what professors may say in class, even at the university level. Alternatively, Defendants suggest that even if this Court is required to balance the State’s interests against the professors’ First Amendment rights, the State’s interests always trump the professors’ rights. According to Defendants, so long as professors work for the State, they must all read from the same music.

This Court pauses to offer an example of what this challenged law means if you accept Defendants’ position. At oral argument, Defendants conceded that concept six—as mentioned above, that “[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”—is another way to describe affirmative action. When asked directly whether concept six is “affirmative action by any other name,” defense counsel answered, unequivocally, “Your Honor, yes.” Thus, Defendants assert the idea of affirmative action is so “repugnant” that instructors can no longer express approval of affirmative action as an idea worthy of merit during class instruction. (Footnote: “According to
Defendants, the State is prohibited from compelling speech in the classroom, but it has absolute authority to limit expression.”)

Defendants further assert that this prohibition extends to guest speakers if they are invited to participate within a course. As a result, according to Defendants, university professors cannot even organize an in-class debate between guest speakers about the merits of affirmative action if one of those speakers were to espouse, promote, advance, inculcate, or compel students to believe, or otherwise
endorse, the idea of affirmative action. It’s worth keeping in mind that the State has chosen affirmative action as one of its eight concepts because the State has deemed it to be repugnant and “noxious to the people of Florida.” Stated otherwise, you can discuss affirmative action as a historical fact, and you can certainly condemn it as a failed policy, but because the idea of affirmative action is so odious, so repugnant, so vile, and so dangerous that it offends the basic principles of common decency, you cannot have a guest speaker submit their views in favor of affirmative action, even to a class of law students.

To the right of the state to regulate the content of its universities but not the viewpoints of those delivering the content (page 18). The state tried to argue viewpoint regulation based on case law; however, Walker writes that the state’s interpretation is off base. (Citing all of the case law is beyond the scope of this post. Readers who wish to delve into those weeds should see Walker’s original, 139-page ruling. My purpose in this post is to offer pointed yet manageable excerpts.):

At the hearing on Plaintiffs’ motions, both sides recognized this authority of the State to prescribe the content of its universities’ curriculum. Indeed, this makes intuitive sense. Of course the State has a say in which courses are taught at its public universities. … (“A State is entirely free, for example, to decide that the only foreign language to be taught in its public school system shall be Spanish. But would a State be constitutionally free to punish a teacher for letting his students know what other languages are also spoken in the world? I think not.”) …

But Defendants take it a step further, arguing that the State—though constitutionally barred from compelling professors to express the State’s chosen belief—has an unfettered right to prohibit professors from expressing viewpoints with which it disagrees. Thus, according to Defendants, the content of university curriculum may include the State’s preferred viewpoint on the subject matter of
prescribed courses and certainly excludes (at the State’s discretion) any viewpoint the State chooses to prohibit. Defendants ground this argument in the notion that anything professors utter in a state university classroom during “in-class instruction” is government speech, and thus, the government can both determine the content of that speech and prohibit the expression of certain viewpoints.

To the extent Defendants urge this Court to determine that university professors’ in-class speech is always pure government
speech, the weight of binding authority requires this Court to decline the invitation.

In short, these cases support the general proposition that the State is, of course, permitted to determine the content of its public school curriculum. A professor cannot decide to teach something entirely different or do an end-run around the prescribed curriculum by paying lip service to the subject they are supposed to teach and then spend the rest of class time instructing on something else. Defendants, however, ask this Court to read these cases to conflate the State’s right to make content-based choices in setting the public school curriculum with unfettered discretion in limiting a professor’s ability to express certain viewpoints about the
content of the curriculum once it has been set.

But that is not what these cases hold, nor does their reasoning extend so far.

Next comes a shift in perspective to how withholding viewpoint affects a student’s right to receive information (page 30):

The Student Plaintiffs claim that the IFA infringes on their First Amendment right to receive information and ideas, arguing that the IFA’s viewpoint-based restrictions on professors’ in-class speech unconstitutionally limit the information they can receive from professors during class instruction. Both sides agreed at the hearing on Plaintiffs’ motions that the Student Plaintiffs’ right-to-receive information claims are coextensive with the Professor Plaintiffs’ free speech claims, given that the information the students claim the right to receive is the same information that their professors wish to share with them. Thus, in the context of this case, a university student would not have an independent First Amendment right to receive information that a university professor does not have a
First Amendment right to share. This Court agrees with the parties and concludes that the Student Plaintiffs’ right-to-receive-information claims are coextensive with the Professor Plaintiffs’ free speech claims….

It logically follows that a university student’s First Amendment right to receive a professor’s viewpoints should flow from that professor’s First Amendment right to express those viewpoints, for the former cannot be said to exist without the latter. If both claims were viewed and analyzed independently under facts such as this, that analysis could potentially lead to an illogical result—namely,
that university students have an independent right to viewpoints that their professors do not have a right to share.

Dozens of pages of the August 2022 ruling concern whether the professors have standing. On page 69, Walker concludes “that all Professor Plaintiffs, save [one], have demonstrated an injury in fact at the preliminary-injunction stage.” On page 72, Walker finds that these injuries could reasonably be traced to the defendants (e.g., board of governors, board of trustees). On page 77, Walker details which professors have standing and how the standing is connected to specific components of Desantis’ IFA.

Next comes student standing (beginning on page 79). I will leave readers to delve in if they so wish. Details about professor standing concerning their “Fourteenth Amendment vagueness challenge” is on page 84. Then dozens more pages of case law, resulting in some more notable, wryly-written conclusions from the judge regarding violation of the First Amendment:

But here, in these cases now before this Court, Plaintiffs’ free speech claims present an interest in academic freedom of the highest degree. Professor Plaintiffs are not attempting to alter the permitted curriculum. Instead, they seek to prevent the State of Florida from imposing its orthodoxy of viewpoint about that curriculum in university classrooms across the state. According to the State of Florida, so long as professors avoid promotion of one side of a particular idea—or do the State of Florida’s bidding and condemn those ideas that the State has deemed unworthy— professors need fear no consequences from the State. But to step out of line during class and utter a single expression of approval of one of the State of Florida’s disfavored ideas is to risk discipline or even termination. In other words, the State of Florida says that to avoid indoctrination, the State of Florida can impose its own orthodoxy and can indoctrinate university students to its preferred viewpoint. This extravagant doublespeak flies in the face of “the invaluable role academic freedom
plays in our public schools, particularly at the post-secondary level . . . .” As the Supreme Court has previously announced, “[t]eachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”

The IFA is antithetical to academic freedom and has cast a leaden pall of orthodoxy over Florida’s state universities. Neither the State of Florida’s authority to regulate public school curriculum, nor its interest in preventing race or sex discrimination can support its weight. Nor does the First Amendment tolerate it. In this case… the interest in academic freedom weighs heavily in
Plaintiffs’ favor.

…the IFA unreasonably burdens the Professor Plaintiffs’ speech. Defendants cannot, through the IFA, prophylactically muzzle
professors from expressing certain viewpoints about topics that the State of Florida has deemed fair game for classroom discussion. Doing so in the name of reducing racism does not insulate the State from the First Amendment’s reach.

“The college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’ ” and the State cannot allow its
universities to only package its merchandise in the State’s favorite color. “The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, rather than through any kind of authoritative selection.’ ” Having balanced the context, the State’s asserted interest, and the strong predilection for academic freedom in the context of these cases, this Court concludes that the State of Florida, as an employer and educator, cannot restrict university employees from expressing a disfavored viewpoint about a matter within the established curriculum while instructing on that curriculum. Such viewpoint discrimination “is poison to a free society.”

Regarding the Fourtheenth Amendment vagueness of Desantis’ IFA’s “eight concepts”, one really steps into nonsense. From page 119:

Defendants further displayed their nonsensical reading of “objective” during the hearing on Plaintiffs’ motions. When asked whether a professor who wished to instruct on one or some of the eight concepts in an “objective” manner would run afoul of the challenged provisions by inviting knowledgeable guest speakers to discuss both the pros and the cons of one of the concepts, defense counsel argued that the “statute is very clear,” and you would have to analyze the two guest speakers “apart from each other, not necessarily in conjunction with each other.” In so doing, defense counsel suggested that a guest speaker who promoted one of the eight concepts as part of a classroom debate where all sides of the issue were represented would still run afoul of the law. See id. Thus, according to defense counsel, “objective” instruction allows for only one side of the debate in Florida’s public universities—or for no debate at all.

All this is to say that the plain meaning of the “objective” instruction provisions is utterly ambiguous. Assuming, arguendo, that this Court construes “objective” to mean “expressing or dealing with facts or conditions as perceived without distortion by personal feelings, prejudice or interpretation,” the term loses that meaning when paired with the adverbial phrase “without endorsement of the concepts.” Simply put, “objective” instruction allows for the most zealous condemnation of the eight concepts—motivated by an instructor’s own personal prejudice or biases—but apparently permits not a single classroom debate between instructors or guest
speakers who wish to promote the merits of their position, so long as one of their viewpoints falls on the list of specified concepts. The State of Florida has redefined “objectivity” in a manner that does not comport with common sense. No ordinary person would understand “objective” instruction to allow for this imbalance.

…Defendants construe the challenged provisions such that even presenting multiple perspectives may still run afoul of the “objective” instruction savings clause if the instructor happens to “promote” or “endorse” one of the concepts in the process. These attempts to
reconcile the challenged provisions with their own policies on academic freedom demonstrate the disconnect between this new notion of “objectivity” and the institutions’ common-sense understanding of the term.

Lacking explicit standards to circumscribe enforcement of “objectivity,” Defendants can weaponize this term to further discredit the eight concepts in the “marketplace of ideas,” which now permits endorsement of only one side of the debate. Accordingly, because this “objectivity” savings clause commands the entire statute, the IFA is impermissibly vague on its face in violation of the Due Process Clause of the Fourteenth Amendment.

…As articulated above, the challenged provisions of the IFA unconstitutionally discriminate on the basis of viewpoint in violation of the First Amendment and are impermissibly vague in violation of the Fourteenth.

Bringing it home. Page 127:

First, absent an injunction, Plaintiffs will suffer irreparable injury because an ongoing First Amendment violation—which the IFA inflicts—constitutes irreparable injury. Second, weighing Plaintiffs’ First Amendment injury against Defendants’ interest, the scale tips decisively in Plaintiffs’ favor. This is because the state “has no legitimate interest in enforcing an unconstitutional ordinance.” Third, an injunction would not be adverse to the public interest. After all, as noted above, “[t]he public has no interest in enforcing an unconstitutional ordinance.” And as the Supreme Court has recognized, “[t]he First Amendment, in particular, serves significant societal interests.” Plus, the portions of the FEEA (Florida Educational Equity Act) that the IFA did not amend remain in effect to protect Floridians from discrimination in education.

In sum, because Plaintiffs have carried their burden as to all four of the preliminary injunction factors, this Court finds that they are entitled to a preliminary injunction.

As was true in Walker’s previous blocking of Desantis’ IFA in the private sector, there will be no stay (that is, to keep Desantis’ IFA in effect in Florida’s higher-ed classrooms) prending appeal:

Finally, having determined a preliminary injunction is warranted, this Court addresses whether it will stay that injunction pending appeal. … Because no exceptional circumstances justify staying this Order pending appeal… this Court refuses to do so.

And now, Walker’s closing remarks (page 132):

The people of Florida have weathered many storms in recent years. But thetensions giving rise to the Individual Freedom Act are not unlike those tensions from another tumultuous era, one “that roiled the country during and after the First World War.” A prescient example of this fraught time comes to mind—namely, the resignation of Columbia University Professor Charles Beard.

Given the pressing issues of the day, “we stand on the threshold of an era which will call for all the emancipated thinking that America can command.” Such was the conviction of Professor Beard, in October 1917, when he wrote those words in his resignation letter to the President of Columbia University. At the time, Professor Beard resigned in protest of the firing of two anti-war professors. Notwithstanding his own view that the United States should declare war with Germany, Professor Beard recognized that “thousands of [his] countrymen do not share this view” and that “[t]heir opinions cannot be changed by curses or bludgeons.” Instead, he asserted that “[a]rguments addressed to their reason and understanding are our best hope.”

In decrying the Board of Trustees’s decision to fire his anti-war colleagues, Professor Beard urged that “[s]uch arguments . . . must come from men whose disinterestedness is above all suspicion, whose independence is beyond all doubt, and whose devotion to the whole country, as distinguished from any single class or group is above all question.” He asserted “the question of academic freedom” is also “the question of intellectual and spiritual leadership in American democracy.” Echoing this belief 35 years later, Justice Frankfurter opined that “[i]t is the special task” of our professors—the “priests of our democracy”—“to foster those habits of
open-mindedness and critical inquiry which alone make for responsible citizens.”

In this case, the State of Florida lays the cornerstone of its own Ministry of Truth under the guise of the Individual Freedom Act, declaring which viewpoints shall be orthodox and which shall be verboten in its university classrooms. Borrowing from Professor Beard’s comments—which are equally applicable here—under the State of Florida’s control, those “who love the smooth and easy will turn to teaching,” so long as “[p]erfunctory performance of statutory duties . . . bring[s] the paycheck.” But educators “of will, initiative, and inventiveness, not afraid of falling into error in search for truth, will shun such a life of futile lubricity, as the
free woman avoids the harem.”

Striking at the heart of “open-mindedness and critical inquiry,” the State of Florida has taken over the “marketplace of ideas” to suppress disfavored viewpoints and limit where professors may shine their light on eight specific ideas. And Defendants’ argument permits zero restraint on the State of Florida’s power to expand its limitation on viewpoints to any idea it chooses.

One thing is crystal clear—both robust intellectual inquiry and democracy require light to thrive. Our professors are critical to a healthy democracy, and the State of Florida’s decision to choose which viewpoints are worthy of illumination and which must remain in the shadows has implications for us all. If our “priests of democracy” are not allowed to shed light on challenging ideas, then democracy will die in darkness. But the First Amendment does not permit the State of Florida to muzzle its university professors, impose its own orthodoxy of viewpoints, and cast us all into the dark.

The preliminary injunction binds the above-listed Defendants and their officers, agents, servants, employees, and attorneys—and others in active concert or participation with any of them—who receive actual notice of this injunction by personal service or otherwise.

There’s more detail regarding the injunction, but the above sums it up.

Freedom isn’t slavery, after all.

It’s a shame Floridians need a federal judge to combat Desantis Dystopia.

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4 Comments
  1. A J Sloan permalink

    Literally – for years. I’ve been following your posts. They are always informative… And I’m note even a classroom teacher. I live and “task” in de Eastern Cape of Southern Africa; and am in de ‘States’ about 5 months at de end of de calendar year. But your Posts help me to somehow keep me grounded in a real reality of (North) American culture.
    Thank you for all you do. It’s much appreciated.
    Have a Fruitful and Joyous season.

    • fullerhunt permalink

      You clearly do not understand that her ideology is destroying my country. She is the very embodiment of the Evil (Leftist/Communist) that is ruining American education.

  2. fullerhunt permalink

    I used to think that you cared about educating students but your articles hace made it clear you hate children. Anyone against anti-groomer laws are either for pedophiles or a pedophile. You are a disgrace to education full stop, Ms. Schneider. You are part of the reason I am working to make School Choice the law of the land. You are why public schools are destroying America. Shame on YOU.

  3. fullerhunt permalink

    You are part of the problem in American education. This far Left/Communist ideology is anti-American and meant to destroy students’ lives and future, especially black and brown students, and you are a cog in that evil wheel. Shame on you!

    Sent from my iPhone

    >

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