BY TIMOTHY V. KAUFMAN-OSBORN

A note from Academe Blog contributing editor Jennifer Ruth: This is the first part of a special two-part series by Timothy Kaufman-Osborn on the DeSantis plan for higher education. It is required reading for all of us working to thwart the state-driven fascism (or what I have been calling “subnational authoritarianism”) that seeks to turn faculty into the functionaries of partisan politicians. Kaufman-Osborn starts with the “Stop WOKE Act” but goes further, exposing DeSantis’s campaign to bring faculty to heel. It is a campaign that will undoubtedly—if it is not already—be picked up by legislators in other states as the Culture Wars playbook continues to evolve and continues to threaten not only academic freedom but democracy itself. The second part will run next week. See also a statement issued yesterday by the AAUP on the Stop WOKE Act.

Fascism: Any form of behaviour perceived as autocratic, intolerant, or oppressive; esp. the advocacy of a particular viewpoint or practice in a manner that seeks to enforce conformity (Oxford English Dictionary)

“In Florida, we will not let the far-left woke agenda take over our schools and workplaces. There is no place for indoctrination or discrimination in Florida,” declared Ron DeSantis this past April as he signed into law the so-called Stop WOKE Act (Stop the Wrongs to Our Kids and Employees). The accompanying press release fawned over a governor presented not as the people’s servant but as their savior: “Governor DeSantis has again been bold and courageous,” gushed one mother, while the director of the Manhattan Institute’s Initiative on Critical Race Theory lauded “the greatest Governor in the country right now.” Florida’s fearless leader “will always fight to protect our children and parents from this Marxist-inspired curriculum,” effused the lieutenant governor, and so deliver us from the enemies in our midst.

What neither DeSantis nor his supplicants acknowledged is that the bill officially but disingenuously titled the Individual Freedom Act is one element of a much larger project designed to secure unilateral control over Florida’s public education system, including its colleges and universities, in the service of a right-wing agenda. That plan aims to centralize power in the governor’s hand-picked rulers, suppress views that run counter to the government’s interests, and, of principal concern here, transform faculty into administrative agents whose task is to do as the state commands. Should this plan succeed, it will signal eradication of the vision of the professoriate that has been commended by the AAUP for over a century but is fast becoming little more than a relic. 

The Stop WOKE Act
The Individual Freedom Act has two components, both of which are essentially plagiarized from an executive order issued by the Trump administration in 2020. The first prohibits employers, private as well as public, from requiring any form of workplace “training” that “espouses, promotes, advances, inculcates, or compels” employees to “believe” any of the eight “concepts” the law proscribes. These include, for example, the belief that members of one race are “morally superior” to those of another; that a person’s “status as either privileged or oppressed is necessarily determined by his or her race;” and, demonstrating how double negatives sometimes generate head-scratching results, that “members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.”

Whereas this first component applies to all employers and so encompasses colleges and universities in that capacity, the second expressly extends these same concepts to public education. For example, the law bans any “instruction” that “espouses, promotes, advances, inculcates, or compels” students to believe that “virtues” such as “merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist;” that anyone “is inherently racist, sexist, or oppressive, whether consciously or unconsciously;” or that an individual “bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress” because of past actions committed by members of that person’s same demographic group.

Both elements of the Stop WOKE Act have now been subject to judicial challenge. In August, a federal judge issued a preliminary injunction against enforcement of the portion that applies to employers, ruling that the plaintiffs are likely to succeed in demonstrating that the law unconstitutionally restricts speech; that it is impermissibly vague in delineating what it forbids; and, finally, that its obscurity invites the sort of arbitrary application that is the hallmark of a lawless regime. More recently, the second component was challenged on the ground that it too violates the First Amendment and, additionally, chills the exercise of academic freedom by “imposing viewpoint-based restrictions on the speech of instructors and the receipt of information by students in college classrooms.” That the law authorizes “discussion” of the beliefs it bans, so long as they are presented “in an objective manner without endorsement,” is but a fig leaf that occludes the categorical distinction between education and indoctrination. 

When the Professor Speaks, Who’s Talking?
The plaintiffs in this second suit, Pernell v. Florida Board of Governors, contend that Stop WOKE’s imperatives must be understood against the backdrop furnished by America’s abiding commitment to racial subordination. More proximately, this statute is part and parcel of the reactionary backlash spawned by, among other things, the contemporary legal scholarship that demonstrates the structural underpinnings of white supremacy, The 1619 Project’s retelling of America’s originary myth, and the massive demonstrations that followed George Floyd’s murder: “Instead of heeding calls for racial justice,” this complaint concludes, the Florida legislature has imposed on public colleges and universities what the AAUP has aptly labeled “educational gag orders.”

What Pernell’s petitioners do not ask is how the legislature’s muzzle fits within DeSantis’ more comprehensive effort to perfect state control over public higher education in Florida. For a telling clue about the means to this end, consider the state’s response, filed late last month, to Pernell’s plaintiffs. That reply dismisses as irrelevant their First Amendment challenge on the ground that Stop WOKE’s bans are nothing but a regulation by the state of “its own speech” (emphasis in the original): “All it [the statute] says is that state-employed teachers may not espouse in the classroom the concepts prohibited by the Act, while they are on the State clock, in exchange for a State paycheck . . . The in-class instruction offered by state-employed educators is also pure government speech, not the speech of the educators themselves.”

To permit professors to speak freely about the law’s eight tabooed concepts, allege Pernell’s defendants, would be to contravene the authority of the people, acting through their elected representatives and in accordance with the legislature’s power to “establish education policy.” When the state makes policy, it does so on the basis of the government’s substantive beliefs about the matters it regulates, and that necessarily involves favoring some views while disapproving others. Because the US Supreme Court has held that such speech “is exempt from First Amendment scrutiny,” faculty members cannot invoke the Constitution’s free speech clause as a justification for disobeying the state’s imperatives. Should teachers be allowed to speak affirmatively about the concepts repudiated by Stop WOKE, Florida’s government would find itself in the self-contradictory position of endorsing views it rejects. Professors would thereby be “anointed” as “universities unto themselves, at liberty to indoctrinate college students in whatever views they please.”

This argument considers instructors akin to clerks at a state administrative agency (for example, Florida’s Department of Highway Safety and Motor Vehicles). The underlying premise, as developed in several US Supreme Court cases (see especially Pickering v. Board of Education, Connick v. Myers, Garcetti v. Ceballos), is that public employers have legitimate interests in regulating the speech of those they hire (for example, in maintaining agency effectiveness by securing internal discipline). Government agencies, therefore, can restrict the expression of their employees in ways that would be constitutionally impermissible if applied to citizens at large. Accordingly, because Florida’s public colleges and universities are “subordinate organs of the State,” faculty members have no enforceable title to teach as they think best.

Timothy V. Kaufman-Osborn is Baker Ferguson Professor of Politics and Leadership Emeritus at Whitman College. He is the author of several articles on academic governance as well as The Autocratic Academy: Reenvisioning Rule Within America’s Universities.