LAWSUIT: FIRE challenges Stop WOKE Act’s limits on how Florida professors can teach about race, sex

September 6, 2022
  • First Amendment doesn’t allow Florida law to declare which concepts are too challenging for students and faculty to discuss in a college classroom
  • Stop WOKE Act restricts college student and faculty members’ ability to play devil’s advocate, express viewpoints
  • University of South Florida’s First Amendment Forum is the first student group to challenge the law in court

TAMPA, Fla., Sept. 6, 2022 — To protect free speech, the government must censor. That’s the absurd argument put forth by Florida lawmakers in the controversial “Stop WOKE Act.” 

The law suppresses viewpoints disfavored by Florida lawmakers, threatens tens of millions of dollars in annual funding for universities that don’t crack down on faculty who “promote” an opinion on a government blacklist, and encourages people to report other Americans to government authorities if they “advance” those views — all in the name of “individual freedom.”

Today, a professor and student group from the University of South Florida sued to protect professors’ ability to teach and students’ ability to learn. The lawsuit, filed by the Foundation for Individual Rights and Expression, alleges that the higher education provisions of Florida’s “Individual Freedom” law (dubbed the “Stop WOKE Act” by its proponents), impermissibly chill free expression and promote unconstitutional censorship on the state’s college campuses.

“Without the freedom to engage in vigorous and robust debate about important issues and contentious concepts, a college education is just an exercise in memorizing facts and repeating government-approved viewpoints,” said FIRE attorney Adam Steinbaugh. “That’s not freedom or education.”

The Stop WOKE Act, passed on an exclusively party-line vote and signed by Gov. Ron DeSantis on April 22, prohibits “instruction” on eight specific “concepts” related to “race, color, national origin, or sex” that may run counter to government officials’ notions of “freedom.” For example, the bill unlawfully restricts discussions of advantages or disadvantages of a particular race or sex; whether individuals are unconsciously biased based on race or sex; and whether certain virtues — including “merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness” — are racist.

But in restricting which ideas may be considered in a college classroom, Florida’s political leaders ran headlong into the First Amendment. 

The law is stuffed to the gills with vague language that leaves professors unsure which lessons are government-approved and which could result in punishment, including termination. The law constrains the ability of professors to play devil’s advocate and forbids them from “advancing” viewpoints, even just for the sake of Socratic discussion. 

Further, the bill’s sponsor, Rep. Bryan Avila, identified five “obviously egregious” books, articles, and videos — among them an article in The Atlantic dealing with race and the pandemic, a 1989 article about white privilege, and Robin DiAngelo’s “White Fragility” — that led to the bill and explained that instructors could not introduce materials offering “unique perspectives” on history. 

In its wake, colleges warned faculty that the Stop WOKE Act prohibits endorsing “any opinion unless you are endorsing an opinion issued by the Department of Education,” limits offering a “critique of colorblindness,” and requires faculty to censor guest lecturers. As for USF? It updated its website to say that students, faculty, and staff are “strongly encouraged” to report violations of the Stop WOKE Act.

“The government should not tell the people what they can talk and think about,” said plaintiff Adriana Novoa, a USF history professor of 17 years who grew up under a dictatorship in Argentina before immigrating to the United States. “I know indoctrination. I’ve seen indoctrination. And indoctrination isn’t coming from my classroom — it’s coming from a law intended to limit the freedom to think and express these thoughts which is the foundation of good education.”

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After the law’s passage, Novoa reviewed her courses and found assigned readings and lecture topics that must be removed in order to comply with the unconstitutional law, including:

  • Readings on Jackie Robinson and segregation in professional baseball for her course on sports history — one of the most popular history courses at USF — because the materials “advance” arguments about white privilege; 
  • Texts about societal tensions resulting from colonialism that led to violent revolutions in Latin America, as well as ​​Argentina’s treatment and extermination of indigenous peoples — teaching that “advances” arguments about “collective guilt” in Latin American history and politics.

Novoa will now be forced to choose between teaching her students to the best of her abilities or facing catastrophic punishment for herself, her colleagues, and her institution — as millions in state funding are on the line. USF stands to lose approximately $73 million in annual funding if it doesn’t impose “appropriate” punishment on professors who fail to follow the law’s vague requirements to shield students from certain concepts, books, and speakers. (The Stop WOKE Act contradicts progress made with a 2021 law preventing the State Board of Education or Board of Governors from shielding students or faculty members from “ideas and opinions that they may find uncomfortable, unwelcome, disagreeable, or offensive.”)

Novoa is joined in the lawsuit by student-plaintiff Sam Rechek, head of USF’s First Amendment Forum. Its members cannot engage in a full and frank discussion of contested matters — race and its role in both history and modern society are among the most fraught issues in the United States — if they fear that a professor’s response to their questions may be reported to administrators or government officials for formal action.

“I came to college to have real debates about issues that are important to me — not to have politicians decide which conversations are too controversial for class,” said Rechek, a 2020 FIRE summer intern. “It’s important to fight back because I came to USF for an education, not government-approved indoctrination.”

In contrast to other lawsuits challenging the act, FIRE’s suit is limited to higher education and does not take a position on the truth of the prohibited concepts of race and sex. Rather, FIRE takes the viewpoint-neutral approach that faculty retain the right to give an opinion — whether that opinion supports or opposes the prohibited concepts in the Stop WOKE Act. 

The lawsuit names Commissioner of the Florida State Board of Education Manny Diaz Jr., USF trustees, and other state education officials as defendants. FIRE requests that the court rules the act unconstitutional under the First and Fourteenth Amendments. Gary Edinger of Benjamin, Aaronson, Edinger & Patanzo is serving as local counsel. 

On Aug. 18, a federal judge blocked a provision of the act that relates to workplace training about race. But the mirroring higher education provisions — which FIRE’s suit challenges — were not part of that lawsuit.

“You can’t censor your way to freedom of speech — you can’t censor your way to the truth,” said FIRE attorney Greg H. Greubel. “We learn truth through discussion, not the state telling us ‘we already have all the answers.’ Now they have to answer for their unconstitutional actions.”

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE recognizes that colleges and universities play a vital role in preserving free thought within a free society. To this end, we place a special emphasis on defending the individual rights of students and faculty members on our nation’s campuses, including freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience.

CONTACT:

Katie Kortepeter, Media Relations Manager, FIRE: 215-717-3473; media@thefire.org


Schools:  University of South Florida

Cases:  Florida Board of Governors: Florida Law Restricting How College Professors, Students Can Discuss Race and Sex