Appellate court appears divided on DeSantis’ ‘Stop Woke’ law

TALLAHASSEE, Fla. — A panel of three federal appeals court judges appeared divided at a hearing Friday on the constitutionality of a Florida law signed by Gov. Ron DeSantis that would limit what state university professors say to students in the classroom.

Florida’s “Stop Woke” law threatens college professors at public universities with consequences that include the loss of tenure for offering personal viewpoints or certain teachings on race and gender in class. Professors and students sued to stop the law, leading Chief U.S. District Judge Mark Walker to grant a preliminary injunction months after the law took effect in 2022.

Lawyers for the Florida Board of Education appealed Walker’s decision. During Friday’s hearing before the 11th U.S. Circuit Court of Appeals in Miami, Board of Education lawyer Charles Cooper argued that unlike private colleges, public school professors should follow guidelines for classroom discussions that match the viewpoint of the state’s government. That principle would even apply if the state passed a law policing if a professor can speak negatively about the governor’s office.

“In the classroom, the professor’s speech is the government’s speech,” Cooper said. “And the government can restrict professors on a content-wide basis and they can restrict them from offering viewpoints.”

Friday’s appellate panel was seated by Judges Britt C. Grant, Barbara Lagoa and Charles R. Wilson. Grant and Lagoa — both appointees of former President Donald Trump — at times agreed with Cooper that previous court decisions upholding restrictions on speech in classrooms in different cases were rightly decided, potentially providing a path for the “Stop Woke” law, which has yet to be enforced because of the federal injunction.

Wilson — an appointee of President Bill Clinton — seemed to agree with a lawyer for the plaintiffs, Greg H. Greubel, who said college students should be allowed to engage in debate about the topics they are learning in class.

“So these are adults and not children, right?” Wilson asked Greubel, who affirmed in response.

Friday’s hearing is a pivotal test for one of DeSantis’ banner policies, the so-called Stop Woke law that the state has been unable to enforce for more than two years since it was originally blocked by Walker at the federal court in Tallahassee. Walker was appointed by President Barack Obama.

A lawsuit brought by eight college professors, two students, and a student organization in 2022 challenged the law restricting how certain lessons surrounding race can be taught in higher education, arguing it amounted to unconstitutional censorship. The DeSantis administration, however, maintains that the state, as an employer over faculty, holds the power to decide what should and should not be taught in college classrooms.

Florida’s Republican-led Legislature passed the law, FL HB7 (22R), or the Individual Freedom Act, in 2022 to expand anti-discrimination laws to prohibit schools and companies from leveling guilt or blame to students and employees based on race or sex. Inspired by DeSantis, it takes aim at lessons over issues like “white privilege” by creating new protections for students and workers, including that a person should not be instructed to “feel guilt, anguish, or any other form of psychological distress” due to their race, color, sex or national origin.

This law has been fought on several fronts by different organizations, including the college free speech group Foundation for Individual Rights and Expression, or FIRE, American Civil Liberties Union, and the NAACP Legal Defense Fund, all of which are representing the group challenging how it applies to state colleges and universities. In suing Florida, they argue that the policies limit professors from “engaging in classroom instruction and dialogue about important issues related to race and gender” in violation of free speech rights.

Walker in November 2022 ruled against the DeSantis administration, slamming the anti-woke law as “positively dystopian” for declaring the state has “unfettered authority to muzzle its professors in the name of ‘freedom.’” His injunction over the law was quickly appealed, and the case has been awaiting a hearing since.

The last major development came in March 2023 when the 11th U.S. Circuit Court of Appeals denied the state’s request to put Walker’s ruling on hold as the case plays out.

Attorneys for the DeSantis administration assert that Walker’s “First Amendment analysis is fatally flawed at multiple levels.”

“The constitutional question in this case thus boils down to this: who decides what is, and is not, to be taught in Florida’s college classrooms — individual professors or their employer, the State, in prescribing by law the content requirements and standards that govern public universities in setting their course curricula?” attorneys for the state wrote back in 2022.

Florida is legally blocked from enforcing another key portion of the high-profile law restricting what DeSantis called “woke” workplace trainings about race after a federal appeals court ruled earlier this year that the policy “exceeds the bounds of the First Amendment.”