Florida’s war against woke indoctrination has hit a speedbump. On July 7, a panel of the 11th Circuit Court of Appeals affirmed a lower court’s injunction against the Stop WOKE Act, the state’s attempt to ban public university employees from inculcating trendy beliefs about racial superiority and privilege. Professors at taxpayer-funded universities remain free to teach that “a person’s moral character or status as either privileged or oppressed is necessarily determined by his or her race,” among other similar concepts Stop WOKE targeted.
Free-speech maximalists and opponents of Florida’s rightward shift are understandably celebrating. Judge Britt Grant’s majority opinion is well-reasoned and defensible, in line with the judiciary’s principled yet expansive interpretation of the First Amendment in recent decades. But those celebrating this decision should be careful what they wish for. What the case of Pernell v. Florida Board of Governors shows most clearly is that professors are adamant about the need to use universities to indoctrinate students into controversial and contestable worldviews. Recognizing that this is inimical to the mission of public universities, states will find other ways to take control of their schools. The constitutional way to fix this problem is a broader and deeper overhaul of higher education.
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Why is Stop WOKE unconstitutional? Writing for a two-judge majority, Judge Grant concluded that the higher-education portion of the Stop WOKE Act likely violates the First Amendment because it prohibits public university professors from endorsing certain viewpoints while permitting endorsement of their opposites. It is, without question, viewpoint discrimination, though that alone does not make a law unconstitutional. Banning classroom speech based on its content could be acceptable if educators were violating “well-understood parameters—personal tangents irrelevant to the subject matter, conspiracy theories, and the like.”
Rejecting Florida’s argument that professors’ classroom instruction constitutes government speech or unprotected public-employee speech, Judge Grant reasoned that public universities occupy a constitutionally distinct role as centers of intellectual inquiry and that Supreme Court precedent recognizes a special concern for academic freedom in higher education. “Coercing university faculty (and by extension the students) into avoiding a certain set of ideas,” she writes, is “dangerous” to “the very environments traditionally regarded as laboratories for expression and truth seeking.”
Constitutionality aside, it bears noting that Stop WOKE is a narrow law. Instead of going after corruption of the university root and branch, Florida lawmakers aimed to identify a few categories of noxious ideas that have found fertile ground in schools, and banned their being “espouse[d], promote[d], advance[d], inculcate[d], or compel[led]” in instructional settings. Compared with the federal government’s recent civil rights enforcement efforts, or other wholesale reclamations of schools by the states that fund them, that is a focused policy prescription.
Judge Barbara Lagoa begins her dissent with an emphasis on the law’s narrow application. The statute does not bar “discussion and debate” of racialism, privilege, and systemic theories of oppression but does prohibit professors using the guise of academic freedom to “endorse” or “promote” them. For plaintiffs to have standing to sue for a First Amendment violation, then, they must allege either that the law’s terms are chilling because they are vague—an argument Judge Grant credits—or that each plaintiff did indeed intend to indoctrinate his or her students.
Incredibly, the professors seeking to enjoin Florida’s law did the latter. A footnote from Judge Lagoa, repeating the findings of the district court, lists the ways educators aimed to use their platforms as soapboxes for progressive indoctrination.
Lead plaintiff LeRoy Pernell, a law professor at Florida A&M, would have been prevented from teaching that “racism is embedded in the criminal justice system.” Dana Thompson Dorsey, a self-described “professor and activist fighting for racial justice [and] educational equity,” at the University of South Florida, “typically assigns her own articles that discuss white privilege and critique the concept of colorblindness.” University of Florida professor Sharon Austin “endorses critical race theory and assigns reading materials that advocate for affirmative action.” Shelley Park’s “work centers around notions of queer kinship and care (esp[ecially] mothering) as explored through a lens of decoloniality” and she “teaches . . . as foundational truths rather than academic theories” the idea “that merit, objectivity, and colorblindness function to solidify systems of oppression.”
This is just a sampling of the absurdities Stop WOKE aimed to stamp out. Putting aside how compatible these pedagogical choices are with students’ ability to explore truth, the plaintiffs have made clear that they do indoctrinate in class and think it is their right—maybe even their obligation—to keep doing so. They fully intend to use taxpayer money to advance fringe progressive views.
These facts also do not sit well with the court distinguishing legitimate teaching from “conspiracy theories.” What is a conspiracy theory if not an unproved assertion that powerful groups, hidden from view, have rigged the game? The district court found that at least one teacher considers it a foundational truth that merit and objectivity were concocted by white people to dispossess and subjugate blacks. Perhaps courts do not want to be in the business of making fine-grain distinctions between legitimate axioms and cockamamie social theories popular among academics in certain fields. If that’s the case, they should defer to elected officials when they decide what’s legitimate and what isn’t.
Whether or not one agrees with the full thrust of Judge Grant’s analysis, there is no question where this ruling leaves us: the First Amendment has been construed to say that states cannot exercise full control over public university classrooms—at least if the theories teachers want to advance have gained enough prominence that they can be conceived of as “alternative facts.” That may be what the professional norm of academic freedom demands. But is that what self-governing citizens want their public universities to do?
This is not a tenable status quo. Floridians will have to find other ways to exercise control over wayward public institutions. The attempt to target noxious ideas failed, in a sense because it was too hyper-focused. Singling out bad ideas, rather than seeking to reform public education as a whole, invited the viewpoint-discrimination challenge.
The solution, ironically, is for citizens to hit back with blunter instruments. A few tools remain available and less susceptible to legal challenge. My colleague John D. Sailer and I have promoted them in recent model legislation that would help states wrest control of public education back from faculty who repeatedly demonstrate that they do not deserve the public’s trust.
Personnel is policy, and right now the only personnel controlling what goes on in the classroom are the ideologues who deserve such trust the least. The public can speak through its elected officials and appoint regents or similar governing boards who can scrutinize whether universities are advancing the public interest. State legislatures should empower these boards with oversight of institutional leadership, faculty hiring, and academic priorities. Governing boards can require that mandatory or general-education classes are geared toward preparation for civic and professional life. Wherever possible, they can institute requirements that universities publicize their exercises of discretion: who they hire, who they admit, what they teach, which classes they’ve added and made mandatory, and so on.
Public education belongs to the public, even if elected officials’ ability to discriminate against antisocial viewpoints is limited. Structural changes will fill the void—not telling anyone what or how to conduct the classroom but controlling what kind of person and what topics make it into the classroom to begin with.
Stop WOKE may be halted in its tracks, but that does not mean the progressive indoctrination machine must go on forever. A more dramatic set of reforms is coming next—and courts are unlikely to come to professors’ rescue.