A divided federal appeals court ruled on July 7 that Florida’s restrictions on how public university professors could teach certain concepts about race, sex, and diversity violated the First Amendment.
In a 2–1 decision, the court upheld a judge’s order blocking part of the state’s Individual Freedom Act, also known as the Stop WOKE Act. The law banned the teaching of eight specific concepts associated with critical race theory, white privilege, and affirmative action.
The new ruling could have persuasive authority in challenges to similar state laws that target DEI (diversity, equity, and inclusion) policies in public schools and universities.
Critical race theory, a controversial ideology popular among academics, has varied interpretations. Its advocates generally say that racial bias is inherent in many parts of Western society, especially in legal and social institutions.
The statute prohibited instruction at public colleges and universities that “espouses, promotes, advances, inculcates, or compels” students to believe the eight concepts.
Among those concepts were that merit and colorblindness were racist and sexist, and that one race or sex was morally superior, and that a person’s race or sex made them inherently racist, sexist, or oppressive.
Other concepts included that people should be treated differently—or not—based on race or sex to promote equity and so-called social justice, and that people are collectively guilty for past actions by others of the same race or sex.
The law permitted discussion of the concepts in neutral conversations as part of a course if presented in an objective way without endorsement.
She said that after professors challenged the law, the state searched for an existing case or doctrine to support its speech ban in universities but couldn’t find one. Instead, it fused public employee speech cases with government speech doctrine and created a new rule that if a government pays a professor’s salary, it has complete control over his or her speech in the classroom.
“That is not a blessed union. Florida’s salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State’s own statutes recognize as centers of inquiry—classrooms where students are trusted to puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth.”
The ideas that Florida is targeting “may well be noxious. Or maybe not. Either way, in this context the First Amendment trusts students to figure it out for themselves.”
U.S. Circuit Judge Barbara Lagoa issued a dissenting opinion, saying the majority overreached.
The majority is usurping the role of the state Legislature and reducing the First Amendment “to a reflection of judicial preference, regardless of the State’s interest in its classroom instruction.”
“If the government has a compelling interest in eradicating racial discrimination in a private university, how much greater is Florida’s interest in eradicating what it deems to be racial discrimination in its own classrooms?” she said.
Lagoa said people don’t need to agree or disagree with Florida that the viewpoints at issue constitute racial discrimination, “we need only acknowledge that the State is allowed to decide what is endorsed by its professors in its own classrooms.”
Separately, President Donald Trump has tried to end DEI-related practices in the federal government.
These policies “threaten the safety of American men, women, and children across the Nation by diminishing the importance of individual merit, aptitude, hard work, and determination when selecting people for jobs and services in key sectors of American society,” the president said in Executive Order 14173.
