Why an Appeals Court Blocked a Dangerous Censorship Law in Florida's Universities

The 11th Circuit Court of Appeals affirmed an order in July that blocked Florida from enforcing the Stop WOKE Act in the state's universities.

Florida is one of 24 states that has passed laws restricting instruction on race and gender in higher education since 2020. Taken together, these laws represent a nationwide backlash to progress in racial justice, but this case marks the first time an appellate court has ruled that this type of classroom censorship law is unconstitutional in higher education.

The order came in a lawsuit we filed on behalf of professors who were forced to censor their instruction on specific topics related to race and gender that are central to their academic scholarship and coursework. The Stop WOKE Act limited training and instruction on eight so-called "divisive concepts" parroted from an executive order issued by then-President Donald Trump and rescinded by then-President Joe Biden. After we sued, a federal district court described the law as "positively dystopian" and blocked enforcement of the higher education provisions of the law. Last month, the 11th Circuit agreed, holding that the Stop WOKE Act violated the First Amendment.

The ruling striking down the Stop WOKE Act could spread across the country as groups challenge similar laws in other states. But equally as important as the practical impact of the decision is the rationale behind it.

Viewpoint-Based Restrictions Are Especially Dangerous in Higher Education

The Stop WOKE Act imposed restrictions based on specific viewpoints -- precisely the kind of law that the First Amendment was designed to prevent. Under the act, a professor could teach the viewpoints on race and gender that the Florida legislature approved of, but could not express the disfavored viewpoint, even when it was foundational to their academic discipline. This impacted professors' ability to teach about race and gender without running afoul of the law. In its ruling, the 11th Circuit emphasized viewpoint-based restrictions "designed to compel or ban a set of beliefs are dangerous in any setting, but they are especially pernicious in the classroom context." That's because, as the decision rightly notes, colleges and universities should be "centers of inquiry -- classrooms where students are trusted to puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth."

Higher Education Instruction Is Protected by the First Amendment

Academic freedom is a "special concern" of the First Amendment. This means the First Amendment protects universities' and professors' right to make teaching choices without government censorship targeting disfavored viewpoints. The Court was unequivocal: "If the First Amendment offers any boundary of protection at all for public university classrooms, this statute crosses it."

Because of the nature of a professor's job, the government's authority to limit the speech of public employees in some circumstances without violating the First Amendment does not apply to classroom instruction in colleges and universities. The Supreme Court recognized that university professors engaged in teaching and scholarship may have "additional constitutional interests" beyond other public employees. Their academic speech is different from that of civil servants who are administering government programs, and leading a discussion or giving a lecture does not present the same workplace management concerns. According to the Supreme Court, to "impose any strait jacket" upon the leaders in colleges and universities would imperil the future of our nation.

In the lawsuit, Florida argued that all classroom speech was government speech, which would make it immune from the First Amendment, because professors were hired and paid by the government. But the Court squarely rejected this dangerous argument. The state doesn't control curriculum in higher education; the classroom instruction in colleges and universities doesn't traditionally communicate ideas on behalf of the government; and the public doesn't view it as endorsed by the government. Finally, the Court refused to extend the government speech doctrine to a ban on disfavored ideas.

Governing Higher Education Does Not Include Banning Disfavored Views

Universities may shape curricular content, such as the majors or courses offered, impose basic general education requirements for graduation, discipline teachers and ensure competent academic instruction. However, the legislature may not ban disfavored speech. "Though the government has plenty of ways to promote its own viewpoint, puppeteering every university professor in the state is not one of them," the Court ruled.

Instruction About Discrimination Is Not Actual Discrimination

The Court also rejected Florida's argument that the act prevented discrimination. This represented a strong repudiation of the act and similar laws across the country that purport to shield students from learning about racism and sexism. However, constraining the ability to learn about discrimination does not empower students to identify or fight it; it does the opposite.

The Stop WOKE Act is one of the best-known examples of the classroom censorship laws that have pervaded state legislatures since 2020. This decision marks an important step toward a future where our classrooms are no longer political battlegrounds. With this decision, the courts agree: The First Amendment protects our right to teach, learn and read without government interference.

Leah Watson is a senior staff attorney with the ACLU's Racial Justice Program. For more than 100 years, the ACLU has worked in courts, legislatures and communities to protect the constitutional rights of all people. With a nationwide network of offices and millions of members and supporters, the ACLU takes on the toughest civil liberties fights in pursuit of liberty and justice for all. To find out more about the ACLU and read features by other Creators Syndicate writers and cartoonists, visit the Creators website at www.creators.com.