Florida’s Stop WOKE Act Will Reclaim The Classroom

In 2022, the people of Florida decided that they would no longer subject students to woke indoctrination. The Individual Freedom Act, otherwise known as the Stop WOKE Act, does not prohibit the discussion of race, racism, or related concepts in taxpayer-funded universities.

What the Act does prohibit is instructional endorsement of, for example, the belief that race, color, national origin, or sex determines moral worth or personal responsibility; that some races and sexes are indebted to other races and sexes for past injustices; that some people are inherently racist, sexist, or oppressive because of their race or sex; or that virtues like merit, fairness, and colorblindness are racist or sexist inventions used to oppress non-whites, non-westerners, and women. In other words, Florida decided that it would not allow its public universities to inculcate students with racist worldviews.

This past July, in a 2-1 decision, the U.S. Court of Appeals for the Eleventh Circuit affirmed a lower court’s decision to block the higher-education provisions of the Individual Freedom Act, concluding that the First Amendment gives professors the right to advocate noxious and divisive ideologies in public university classrooms. As it now stands, the people’s elected representatives cannot prevent taxpayer-funded public universities from teaching that people may be judged by the color of their skin, and not by the content of their character.

This is why my office is seeking review by the U.S. Supreme Court: not only to vindicate popular sovereignty in Florida, but also to correct endemic confusion in our federal courts about the First Amendment. The Eleventh Circuit’s opinion departs from the Supreme Court’s government-speech cases and further muddles the lower court landscape. This issue is ripe, and the Court should take it up.

It is well established that the First Amendment does not protect the speech of public employees made pursuant to their official duties. Like any speaker, the government decides what it says; the government determines its own “viewpoint.”

Lower courts are split, however, on how this rule applies to professors. A public university decides what its students learn, and public universities are instrumentalities of the state. So, taxpayers, ultimately, make those curricular choices through their elected representatives and politically accountable boards of trustees. The majority on the divided Eleventh Circuit panel concluded that university professors — the court called them “priests of democracy” — have free-speech rights that can buck the wishes of their government employers, who pay them to teach. That’s terribly wrong.

For 20 years, though, the Supreme Court has declined to answer the question directly. Competing decisions and legal uncertainty have arisen across jurisdictions. Appeals courts sharply disagree on this issue. Some have wrongly treated a lecture in a state classroom as the professor’s speech, rather than the speech of the public university that hired him, pays him, and approves his course of instruction. We reject that view. A professor teaching on the government’s time, in the government’s classroom, speaks for the government. That should be obvious.

But not for the Eleventh Circuit. It treated Florida’s decision to not endorse specific racist and sexist concepts as forbidden viewpoint discrimination, and it invented a personal right that a professor can wield against the public university that pays him and the taxpayers who fund it. The dissenter, Judge Lagoa, and other judges like Seventh Circuit Judge Easterbrook are right: academic freedom belongs to the public university, not the professor.  Judge Lagoa correctly distinguished between the First Amendment’s protection of all viewpoints and the fact that “it does not compel all viewpoints to be worthy of state-sponsored endorsement.”

More confusing still, the Eleventh Circuit reached its decision through novel means. Per that Court, what distinguishes public university professors from other state employees is that they have a constitutional right to academic freedom against their public employer, and that this right gives them virtually unfettered discretion to teach whatever they want in taxpayer-funded classrooms. No other circuit court has decided a case on this basis or so eviscerated the government’s interest in regulating its classrooms.

And who does get to step in and pump the brakes when certain classroom instruction goes well beyond established curriculum? Federal judges, according to the Eleventh Circuit. The court acknowledged that states have the power to “exclude speech that veers outside of well-understood parameters,” academic freedom notwithstanding. That’s what Florida thought it was doing when it prohibited the endorsement of racist concepts, an interest the Supreme Court has recognized. But apparently, only federal judges in individual lawsuits get to make those calls.

At bottom, two federal judges simply disagreed with the Florida legislature’s “parameters” and reserved for themselves the authority to decide what is “well-understood.” To invoke the late Justice Scalia, except as limited by constitutional prohibitions agreed to by the people, states are free to adopt whatever laws they like, even those that offend the sensibilities of judges. A system of government that subordinates the people to a committee of unelected lawyers does not deserve to be called a democracy.

The Founders would never have dreamed that the First Amendment mandated agnostic neutrality in public classroom instruction. Indeed, the purpose of education was to form citizens of good character, instilling students with civic virtue and republican ideals. Washington, Franklin, Madison, and Jefferson all maintained that education should shape students according to American principles and manners, instruct them in our mode of government, and teach them the ideals of merit, solidarity, and patriotism.

They understood that education forms citizens, and citizens form the nation. If there is a greater state interest, it is difficult to find one. As Judge Lagoa rightly put it in her dissent, “the State’s authority is at its zenith in its public classrooms, including the classrooms in its public universities.” Therefore, “the state is allowed to decide what is endorsed by its professors in its own classrooms.”

Judges and lawyers need to shake off the free speech stardust and think seriously about whether the First Amendment was originally understood to compel us to treat woke racism and the timeless principles of the Declaration as moral equals.

When it comes to state university instruction, the question for Floridians is, what kind of citizens do we want to produce through our public institutions? The question for the Supreme Court is, who gets to decide what kind of citizens we produce? Is it the citizens and their duly elected representatives, or the professoriate and federal judges? To ask the question is to answer it.

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James Uthmeier is Florida’s Attorney General.