Florida’s educational gag order: More extensive and damaging than you realize

When Florida’s Gov. Ron DeSantis (R) signed House Bill 7, “The Stop WOKE Act,” in April, he declared that the legislation would provide public school students and their parents “freedom from having oppressive ideologies imposed upon you without your consent.”

The Stop Woke Act blocks workplace trainings and classroom instruction in public schools, colleges and universities that “espouses, promotes, advances, inculcates, or compels” belief in “divisive concepts.” The law is just one among a rapidly proliferating number of “educational gag orders” recently imposed by conservative state legislators to restrict the teaching of critical race theory (which highlights systemic racism in the United States) and other race and gender-identity related “critiques of U.S. society and history.”

But the arguments Florida has advanced to defend the Stop Woke Act against multiple legal challenges go much further. In response to claims that the legislation “violates the First Amendment and is constitutionally vague and racially discriminatory,” lawyers for the state have asserted that state college curricula and in-class instruction are “government speech,” and “not the speech of the educators’ themselves.” Insisting there is “no purported right to academic freedom,” they maintain that the government of Florida “has simply chosen to regulate its own speech.”

Florida’s argument, if accepted by the courts, poses an existential threat to public schools that could destroy the commitment to free and unfettered inquiry that has made American colleges and universities preeminent throughout the world. And it is by no means certain that the courts will not side with Florida.

In defending the constitutionality of the Act, Florida has cited the 2006 U.S. Supreme Court’s decision in Garcetti v. Ceballos, a case involving the right of the District Attorney of Los Angeles to discipline a deputy district attorney who criticized his supervisors’ actions. In a 5-4 decision, the Court decreed that “when public employees make statements pursuant to their official duties,” the First Amendment “does not insulate their communications from employer discipline.”

In his dissent, it is worth noting, Justice David Souter warned that the decision could “imperil First Amendment protection of academic freedom in public colleges and universities, where teachers necessarily speak and write pursuant to official duties.” And the five justices in the majority chose not to “decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”

Since 2006, federal courts have disagreed on whether an academic freedom exception exists. In a string of decisions, the Fourth, Fifth, and Ninth Circuit Courts of Appeals have concluded that Garcetti does not apply in the academic context of a public university. But in 2007, in Hong v. Grant, a district court judge ruled that the University of California “is entitled to unfettered rights when it restricts statements an employee makes on the job and according to his professional responsibilities.” And in 2011, the judge in Capehart v. Hahs noted that “courts have routinely held that even the speech of faculty members of public universities is not protected when made pursuant to their professional duties.”

As the “Stop Woke Act” makes its way through the courts, it is essential to understand what’s at stake.

As Justice Souter noted, prior to Garcetti the Supreme Court recognized that universities occupy “a special niche in our constitutional tradition,” and that academic freedom has “transcendent value,” not “merely to the teachers concerned,” but “to all of us.”

In the guise of preventing indoctrination by annulling faculty members’ right to academic freedom, the Stop Woke Act whitewashes or erases American history in favor of government-enforced indoctrination. Will teachers be disciplined or fired, for example, if they point out that the state’s education policies, “going back into the nineteenth century,” often “establish[ed] deeply disparate treatment by race and family income”? Or that a criminal statute in Florida prohibited an unmarried interracial couple from “habitually living in and occupying the same room at night-time” until the Supreme Court declared it unconstitutional in 1964? Or that in 2022, a judge struck down Florida’s restrictions on mail-in ballots and drop boxes because they had a disproportionate impact on Black voters?

Who will decide whether this information is “objective” or the espousal of an “oppressive ideology”? Who will decide whether it made someone feel uncomfortable or guilty? Students? Parents? Politicians in Tallahassee? Judges? Will the decision be made by majority vote?

What is to prevent Florida and other states from barring any speech by faculty that state officials dislike?

Existing case law illustrates the wide range of subject matter that has already resulted in efforts at suppression, including faculty criticism of the misappropriation of grant funds, treatment of lab animals, undue reliance on adjunct faculty, and hospital practices and patient safety issues. The University of Florida, a public institution, tried to bar faculty from testifying in court against voting rights restrictions supported by Gov. DeSantis.

Supporters of the Stop Woke Act should remember that if the political winds shift, the law could be used to suppress speech they might favor. At a minimum, enforcement of the law will damage the reputation of Florida’s public universities, making it harder to attract top faculty and students.

As the American Association of University Professors has recently reminded us, academic freedom is essential to the search for knowledge. For decades, faculty have had primary responsibility for deciding what to teach and how to teach it, subject, of course, to professional standards and peer review. And academic freedom has contributed mightily to the domination of American colleges and universities in virtually every list of the world’s best institutions of higher education.

If House Bill 7 wins, all of us lose.

David Wippman is the President of Hamilton College.

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Isaac Kramnick) of “Cornell: A History, 1940-2015.”