FL says this could stop teachers from criticizing governor

In 2022, Republican state legislators in Florida passed the Stop WOKE Act, championed and signed by Republican Governor Ron DeSantis. The law would limit how public university professors can teach about race and gender.

But since November of that year, federal judges have repeatedly blocked the law from impacting universities. Florida students and faculty represented by the NAACP Legal Defense Fund, the American Civil Liberties Union and other groups obtained a preliminary injunction to halt its implementation, and they continue to push for restrictions on the Classroom Education Act be found unconstitutional.

A week ago, gripping oral arguments before the 11th U.S. Circuit Court of Appeals spelled out what could happen if he loses. A hard-hitting Washington lawyer known for representing leading Republicans and now defending Florida’s law has made a series of arguments that academic freedom advocates have called “extreme.” If the justices adopted these findings, they argue, states could demolish the tradition of academic freedom in American higher education.

Most popular stories

The most popular

Florida has found a powerful advocate: Charles J. (Chuck) Cooper has represented U.S. attorneys general, former U.N. Ambassador John Bolton and others, and himself served as deputy U.S. attorney general. United States in the Reagan administration. In this role, Cooper managed to convince Samuel Alito to become his deputy, and The national law review reported that Cooper advised Alito during his subsequent and successful confirmation to the United States Supreme Court.

Last Friday, Cooper told the three 11th Circuit judges that teachers’ classroom speech is government speech and that “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 — views contrary to those of the state.”

One of the three judges on the panel, appointed by Donald Trump, then asked a question showing how far Cooper’s argument could go. The judge speculated about the extent to which the state might limit classroom teaching if the justices accepted Cooper’s arguments: “Could a legislature prohibit teachers from saying anything negative about the current administration of the governor?

Cooper responded, “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 basis and prevent them from expressing their views.” . »

Risa Lieberwitz, general counsel of the American Association of University Professors (AAUP), said Inside higher education that “Florida State is making an extreme First Amendment argument that would completely eliminate academic freedom in the classroom, and it is an argument without merit under the First Amendment.”

Keith Whittington, founding president of the Academic Freedom Alliance and professor of politics at Princeton University, said Cooper’s response “seems to be a blatantly extreme response to the First Amendment question, so it clarified what the challenges”.

These issues are enormous. “It means that policymakers, including state legislatures, can simply determine what messages they want to convey in the classroom, what messages they don’t want to convey in the classroom,” Whittington said of Cooper’s argument. “It’s clearly a terrible thing for academia if the argument gains traction and the courts accept it,” said Whittington, who recently published the book You can’t teach that! about politicians’ attempts to dictate what is taught in classrooms. “It really opens the door to any type of legislative intervention that states might want to engage in to restrict what might be happening in classrooms…or even potentially in academia.” »

In response to Inside higher educationFollowing Cooper’s request for an interview, Cooper wrote in an email that “the controlling precedent of the Supreme Court and the 11th Circuit clearly and decisively supports the constitutionality of the law.”

The end of academic freedom?

The Stop the Wrongs to Our Kids and Employees (WOKE) Act is one of multiple “divisive concepts” laws that Republican-led states have passed since 2020. That year, President Trump issued a decree limiting the teaching and defense of “divisive concepts”. » in executive agencies and the military. While the Biden administration has rescinded Trump’s order, states have passed laws containing lists of targeted concepts similar to Trump’s.

Florida’s law, perhaps the nation’s broadest if it goes into effect, declares that the state considers it discriminatory “to subject any student or employee to training or education that espouses, promotes, progress, inculcates or forces him to believe one of the following concepts. He then lists eight taboo ideas. Among them: the idea that a person “should be discriminated against or receive unfavorable treatment to achieve diversity, equity, or inclusion” and that a person’s status as privileged or oppressed “is necessarily determined by race, color, sex, or national origin. .”

At the end of the list is a paragraph stating that the list “may not be construed to prohibit discussion of the concepts listed” provided that “teaching is given in an objective manner without endorsement of the concepts.” The word “approval” is not defined.

Leah Watson, an attorney for the ACLU, told the justices during oral arguments that Stop WOKE amounts to unconstitutional viewpoint discrimination. “It only restricts their (faculty members’) personal opinions if they disagree with the state,” Watson said. The law allows professors to “coerce, espouse, promote ideas all day long – as long as they are those with which the State agrees.”

But Cooper’s argument is that professors’ classroom speech is government speech that, if judges accept it, could have the most devastating implications for academic freedom. Lieberwitz, general counsel for the AAUP, said it represented “a continuation of the attacks on higher education that we have seen over the past several years” but also “another extreme attempt to use the law as a means to dictate what teachers should say in class.

Matthew Finkin, a law professor at the University of Illinois at Urbana-Champaign, said the argument that public university professors’ speech is government speech is actually “pretty old, going back to 100 years – the idea that we appoint you to say what we tell you to say.

But that idea has also “been categorically repudiated for 100 years,” Finkin said, citing decades of legal precedent contradicting Cooper’s argument. Even if the case were ultimately to go to the conservative U.S. Supreme Court, he said, “I doubt even this court would accept that argument.” There is simply too much water under this bridge.

“The governor is not a ventriloquist,” Finkin said. Teachers “are not ventriloquist monkeys,” he added. “Otherwise, what’s wrong with you?” he said. “You have Chinese or Russian university.”

These findings were echoed by Howard Miller, an education, labor and employment attorney at Bond, Schoeneck & King. When a professor is in a classroom, Miller said, “it’s not their role to say what Ron DeSantis wants them to say.” If you take Cooper’s arguments to their logical conclusion, Miller said, “you would almost have Soviet-era universities.”

Miller said the First Amendment protects against public employers, such as public universities, becoming “thought police.” The State of Florida’s argument, he said, “would amount to making the state an authoritarian regime.”

When a public university, as an entity, issues a statement stating that East government speech, Miller said. But “the government cannot engage in viewpoint discrimination against its own employees.”

Whittington, founding president of the Academic Freedom Alliance, said he thinks “this is a somewhat unresolved issue and the state is making a particularly aggressive argument.” The state could have opted for a more nuanced defense that left “space for individual academic freedom within the confines of the First Amendment,” Whittington said. Instead, he tries to “play for all the marbles” by arguing that, at public universities, “there is no individual academic freedom under the First Amendment.”

If Florida were to prevail with its radical argument, Whittington said, the ramifications might not be limited to the classroom. Scholarships could also be affected. And such a move could open the door for red states and blue states to restrict teaching and publications on ideas they don’t like.

Whittington said “the dynamics of the culture war” have eroded the restraint that lawmakers showed when it came to regulating public universities. If Florida’s argument prevails and voters pressure their politicians to abandon ideas they don’t like, “the state’s politicians will be able to say: Well, I can do something on this subject “.