- FIRE seeks faculty willing to stand up to defend the First Amendment
Last month, as Florida enacted House Bill 7 — the first anti-“critical race theory” bill in the country to directly limit classroom discussion in higher education — FIRE wrote Florida’s public universities and colleges, including the University of Florida, warning that some provisions in the law that would regulate teaching in higher education are unenforceable because they violate the First Amendment. We urged colleges to interpret the law as narrowly as possible or, if necessary, to ignore its unconstitutional provisions.
The University of Florida, unfortunately, is choosing instead to chill faculty speech.
Last week, it issued guidance to its faculty, introduced with a video from outgoing president Kent Fuchs, who explains that the law “focuses on instructional topics and practices.” The slideshow then leads off with this slide, focusing primarily on what’s really important to the university — the potential for “large financial penalties”:
HB 7’s vague admonitions — prohibiting “instruction” that “espouses, promotes, advances, inculcates, or compels [students] to believe” eight enumerated subjects concerning racism, sexism, and society — are alone enough to chill classroom discussions. The university’s guidance doesn’t help clarify much, as it merely describes the “theme” of the bill (do “not present personal beliefs about a topic as the ‘right’ point of view or . . . encourage students to adopt a specific belief”) and instructs faculty that they may not even “suggest” any of the prohibited concepts. FIRE warned that HB 7’s limitations on higher education curriculum were unconstitutional and urged lawmakers to amend the legislation to avoid this problem.
If your institution issues guidance on HB 7, please let us know.
Unfortunately, UF’s guidance exacerbates this problem by putting a finger on the scale, reminding faculty of the gravity of potential consequences. What happens if a legislative committee or Board of Governors feels their discussion isn’t “objective” enough or thinks it “advances” a view disfavored by the state? Their institution will lose upwards of $100 million in funding.
Against this backdrop, President Fuchs says the goal of the slides is to “make clear that [faculty] may continue to address important academic issues in your classes.” The way to do that, the university says (and the statute requires), is by speaking in an “objective manner without endorsement of the concepts.” Faculty should “facilitate free, vigorous, and open discussions” so students can “reach their own conclusions without instructor bias,” which “means not imposing personal views about controversial topics.” The university cautions that discussion must be devoid of “the instructor’s endorsement of a particular point of view.”
The First Amendment isn’t limited to objective speech. We often learn best from encountering competing ideas, and faculty must remain free to present viewpoints, materials, or speakers offering one perspective or another. And while students have legal rights against harassment or discriminatory conduct, encountering even views they find deeply offensive does not meet those legal standards.
While requiring “objective” teaching sounds nice in theory, what counts as “objective” in practice is difficult to measure. That’s particularly so when those making that evaluation are legislators and board members likely to have their own biases, as HB 7 and SB 2524, which adds enforcement mechanisms to HB 7, provide. Whether you believe a discussion is “objective” is likely to turn on whether you think its participants came to the right conclusion.
FIRE warned that HB 7’s limitations on higher education curriculum were unconstitutional and urged lawmakers to amend the legislation to avoid this problem.
That’s baked into the statute’s calculus of what “objective” means. A true definition of “objective” would mean refraining from “endorsing” any viewpoint, but the law gauges objectivity on whether faculty endorse the concepts. That means faculty could, in theory, criticize them. But those who do risk a determination that they’re not being “objective.” By imposing that standard in trying to “Stop WOKE” (as the law is informally called), Florida’s legislature undermined even the faculty members who would criticize the very concepts the state purports to disdain.
Moreover, engaging in discussion at all risks a student’s misinterpretation of some facet of the lecture (or a reading) as an endorsement. The mere possibility of a classroom discussion spiraling into legal processes or investigations — whether in court, before a legislative committee, or before governing boards — will rationally deter faculty from broaching difficult subjects in the first place. And, for that matter, the gravity of consequences will incentivize institutions to refrain from offering classes where these issues might arise at all.
As Andrew Gothard, president of the United Faculty of Florida union, observes, “Not only does [the university’s guidance] editorialize around the law and continue to perpetrate the falsehood that higher ed faculty are inserting their personal views into classroom lectures, but it also shows once again that UF administration is more comfortable aligning itself with Tallahassee than it is defending the rights of its own faculty and student bodies.”
He’s right. FIRE has heard feedback from faculty at one Florida institution that administrators are reassuring faculty that they’re prepared to defend their ability to discuss often-fraught subjects in the classroom. The University of Florida is sending the opposite message to its faculty.
The situation in Florida is reminiscent of what transpired after Iowa’s lawmakers moved to limit the content of “training” in higher education. Iowa State University joined the effort, issuing chilling guidance about classroom teaching, backing down only after the state government moved to limit the content of “training” in higher education. The University of Iowa, on the other hand, showed it was possible to defend its faculty members’ rights, reassuring its faculty that the law would have “zero impact” on classroom teaching.
While the University of Florida’s guidance is disappointing, we at FIRE don’t believe it will be the last institution to choose its interests over those of its faculty and students. If your institution issues guidance on HB 7, please let us know. You can do so confidentially here.
HB 7 will continue to silence unless faculty members are willing to step forward to challenge the law’s constitutionality. If you’re willing to join those efforts, please get in touch with FIRE.
FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).
Writer and academic Yascha Mounk argues that a new set of ideas about race, gender, and sexual orientation have overtaken society, giving rise to a rigid focus on identity in our national debate. In his new book, "," Yascha seeks to take these...