A federal judge on Thursday sparred with attorneys about a controversial state law that restricts the way race-related concepts can be taught in classrooms, as university professors argue it violates speech rights.
Chief U.S. District Judge Mark Walker鈥檚 questions came during a hearing involving two challenges to the law, a priority of Gov. Ron DeSantis during this year鈥檚 legislative session.
What DeSantis dubbed the 鈥淪top Wrongs To Our Kids and Employees Act,鈥� or 鈥淪top WOKE Act,鈥� lists a series of race-related concepts and says it would constitute discrimination if students are subjected to instruction that 鈥渆spouses, promotes, advances, inculcates or compels鈥� them to believe the concepts.
Plaintiffs in the cases before Walker on Thursday include professors and students from several state universities, including University of South Florida history professor Adriana Novoa.
Asking Walker for a preliminary injunction to block the law, the plaintiffs鈥� lawyers argued that the restrictions are causing confusion for instructors, are having a chilling effect on speech inside classrooms and are an unconstitutional infringement of professors鈥� First Amendment rights. Walker did not immediately rule on the injunction request.
鈥淓very day that the Stop WOKE act is in effect, plaintiffs and other similarly situated instructors and students are suffering ongoing and irreparable injury as they self-censor and live in fear that they will lose their jobs or their universities will lose state funding if they violate this vague and discriminatory law,鈥� said Emerson Sykes, senior staff attorney at the American Civil Liberties Union鈥檚 Speech, Privacy and Technology Project.
But Charles Cooper, a lawyer with the firm Cooper & Kirk who represents the state university system鈥檚 Board of Governors and other education officials named as defendants, pointed to court rulings establishing that the government has authority to restrict public employees鈥� speech.
At least four lawsuits have been filed challenging the law. In one case, Walker in August issued a preliminary injunction against part of the law that seeks to restrict how race-related concepts can be addressed in workplace training. The state has appealed that ruling.
As an example of the law鈥檚 restrictions involving the higher-education system, it labels instruction discriminatory if students are led to believe that 鈥渁 person鈥檚 moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin or sex.鈥�
Similarly, instruction would be considered discriminatory if it leads students to believe that 鈥渁 person, by virtue of his or her race, color, national origin, or sex, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin, or sex.鈥�
The law also says that it 鈥渄oes not prohibit discussion of the concepts 鈥� provided such training or instruction given in an objective manner without endorsement of the concepts.鈥�
The concepts identified in the law 鈥渁re racially discriminatory and repugnant,鈥� Cooper argued.
鈥淲e are not going to permit鈥� those concepts to be espoused by instructors 鈥渋n our classrooms, on our time 鈥� accepting our paychecks,鈥� he added.
The law鈥檚 restrictions are permitted because it regulates 鈥減ure government speech鈥� of college and university instructors who are speaking on behalf of the state when teaching on campus, Cooper said.
But Walker questioned the state鈥檚 approach, asking whether it could also result in students鈥� inculcation into certain beliefs. He said it could allow the Legislature to decide what viewpoints should be taught.
鈥淵ou (the government) can pick and choose what viewpoint you like and, under the guise of stopping indoctrination, you promote indoctrination. Why is that not so?鈥� he asked.
鈥淭he government, again, is the one who decides,鈥� Cooper said, adding 鈥渢he state embraces academic freedom.鈥�
鈥淪o long as you say what we like,鈥� Walker said.
The state鈥檚 rationale leads to a 鈥渄ystopian鈥� conclusion, he said.
鈥淲e believe in academic freedom, so long as you say what we want you to say. That sounds like something George Orwell wrote,鈥� the judge chided.
Walker also peppered Cooper with a series of hypothetical circumstances to test what would be considered violations of the law.
For example, Walker asked if a professor would be espousing or advancing one of the prohibited concepts if she invited Cornel West, a high-profile academic who has written extensively about race, to speak to a class about his book.
鈥淚 think you may well be advancing one of the concepts if you bring in Dr. West 鈥� and he articulates any of these concepts,鈥� Cooper said.
Walker asked if a professor could bring in a 鈥渃ountervailing鈥� speaker to offset West, who has called the U.S. a 鈥渞acist patriarchal鈥� nation.
鈥淭hose events would be analyzed apart from each other, not necessarily in conjunction with each other,鈥� Cooper said.
Walker also tangled with Cooper over how much power the government has over instructors鈥� speech, asking whether universities 鈥渓iterally can control every word鈥� professors say and provide transcripts to be read in class.
鈥淭he autonomy of professors 鈥� can never, never overcome the university鈥檚 decision about what can and cannot be taught,鈥� Cooper said.
Walker, who has frequently clashed with the state鈥檚 lawyers in other cases, also posed a scenario involving a teacher who uses a racial epithet, noting that, under federal law, the instructor could not be fired for saying such a word.
鈥淯sing the N-word one time by a teacher would not be actionable, but if they mention affirmative action鈥� they could be sued under the Florida law, Walker said.
鈥淢aybe affirmative action is more abhorrent in the new age than the N-word. 鈥� It鈥檚 shocking if that鈥檚 the new values that we embrace,鈥� he added.
Speaking to The News Service of Florida after Thursday鈥檚 hearing, Novoa, who teaches Latin American history, said the law has had a chilling effect on her and made it difficult to determine what she can talk about in class.
鈥淭here are many issues in Latin America, Latin American history, that are dealing with race, with actions against indigenous populations and 鈥� slavery, obviously, so it's a problem for me to understand exactly how there can be freedom of speech in a context in which there are certain issues that cannot be discussed,鈥� she said.
Novoa, who immigrated to the U.S. from Argentina, contrasted the Florida law with what is permitted in countries run by dictators.
鈥淚n Cuba, you can discuss a lot vigorously. You鈥檙e encouraged to do that but only about the topics that are determined as OK. The reason given is that it is imperial indoctrination. So, in order to protect yourself from imperial indoctrination, you need to remove certain topics from discussion, which is ironic because it鈥檚 what we鈥檙e doing here," she said.
