BY TIMOTHY V. KAUFMAN-OSBORN 

A note from Academe Blog contributing editor Jennifer Ruth: This post is the second part of a two-part series 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 first part of the series was published last week. See also the AAUP’s recent statement on the Stop WOKE Act. 

The state of Florida’s response to the legal challenge to the Stop WOKE Act in Pernell v. Florida Board of Governors figures faculty members as government employees whose speech is not their own and for that reason cannot say what the law forbids. The imperatives of Stop WOKE, however, are not self-enforcing. Conformity to its mandates will only be assured if faculty members become the docile subjects this law anticipates; and that requires their location within an autocratic structure of rule that secures acquiescence on the part of those who might otherwise disobey.

The DeSantis Plan for Higher Education
Creation of that autocratic regime is a key goal of the draft legislation prepared at the governor’s request prior to the 2022 legislative session and unearthed last summer by an independent journalist. What we might dub the “DeSantis plan for higher education” merits more attention than it has yet received because it provides a blueprint for other red state legislatures as well as clues to the education policies that might be endorsed by a President DeSantis. This plan’s overriding purpose is to strip Florida’s public colleges and universities of whatever autonomy they now enjoy by consolidating Tallahassee’s power over higher education. If and when the governor fully implements this plan, acting in cahoots with Florida’s Republican legislature, he will be well positioned to realize his dream of an academy that is but an administrative arm of the state and faculty its functionaries.

According to current law, the provision of higher education in Florida is split between the Florida College System and the State University System of Florida. Each institution within these two systems has its own board of trustees. Those that govern the state’s colleges answer to the state board of education; and six of the seven members of that board are appointed by the governor subject to confirmation by the senate. Similarly, the individual boards that oversee the state’s universities are subject to the board of governors; and fourteen of its seventeen members are appointed by the governor, again with the senate’s concurrence.

Surprising no one, DeSantis has used his powers of appointment to stack both statewide boards with cronies, donors, and ideological loyalists; and it is they who will be assured autocratic authority over Florida’s higher education should the governor’s will be done. All of the boards that govern higher education in Florida, whether of individual institutions or of the two systems, are legally constituted as “bodies corporate” and, on paper, are granted the broad powers that define corporations, including the authority to govern their own internal affairs. What the DeSantis plan seeks is not a wholesale overthrow of this regime but, instead, a curtailment of the powers that now, at least in principle, enable individual colleges and universities to frustrate or otherwise depart from the governor’s agenda.

The DeSantis plan proposes to accomplish this end by several means. For example, in seventeen locations, the revised statute would delete the phrase “or the board’s designee” from its enumeration of the powers now allocated to the two statewide governing boards. To illustrate, the law presently reads, “The Board of Governors, or the board’s designee, shall establish the personnel program for all employees of a state university.” Once that dependent clause is excised, the power to determine employment practices, including the terms of faculty contracts, will rest exclusively with the state’s board of governors.

So, too, the law currently authorizes the board of governors to “develop guidelines” for the formulation of specific policies by university boards. In multiple locations, the DeSantis plan proposes to strike the term “guidelines” and, instead, provide that the board of governors “shall adopt regulations” to govern these areas (for example, the conduct of sponsored research and the use of university facilities). Reinforcing the plan’s withdrawal of delegated authority, the discretionary authority presently exercised by university boards would thus be displaced by fiats handed down by a statewide body dominated by the governor’s favored few.

To ensure that Florida’s colleges and universities obey these imperial mandates, the DeSantis plan proposes programs of surveillance and punishment now absent from state law. For example, should a university president or board prove “unwilling or unable” to address allegations of financial impropriety, the chancellor of the state system would be required to “immediately notify and regularly apprise the Governor, the President of the Senate, and the Speaker of the House of Representatives.” Doing so, DeSantis encourages partisan interventions in higher education’s internal affairs, as exercised either directly (as in Stop WOKE) or indirectly through statewide boards that no longer operate as fiduciaries obligated to serve a public good but instead as government agents. Should colleges or universities fail to comply with these directives, the governor’s plan stipulates that delinquents will forfeit their eligibility for discretionary funding and, indeed, that appropriated funds may be withheld until offenders comply. Thus do the state’s carrots become so many sticks.

As a complement to Stop WOKE, the DeSantis plan would ensure significant state control over Florida’s curricular particulars. For example, the general education courses already mandated by law would now be required to “promote the philosophical underpinnings of Western civilization.” Because this would contradict those foundations, these courses must not include any form of “identity politics, such as Critical Race Theory” and must not define “American history as contrary to the creation of a new nation based on universal principles stated in the Declaration of Independence.” Here, the DeSantis administration steps beyond banning certain “divisive concepts” and, instead, affirmatively advances the cause of white supremacy by mandating instruction in certain of its key ideological props.

Hired Hands
In its 1915 Declaration of Principles on Academic Freedom and Academic Tenure, the AAUP imagined higher education faculty as professionals who are not “employees” in a conventional capitalist sense but, rather, office-holders. Their “office,” to recall an archaic sense of the term, assumes the form of a “vocation,” and this “calling” demands fulfillment of certain duties that transcend whatever their employers may require of them. Whether hired by public or private institutions, the foremost obligation of those who hold a professorial office is to advance the universal good that is free inquiry as well as its fruits, whether in the classroom, the library, or the lab. This duty the AAUP designates as a “public trust,” and that trust’s sacred mission is to secure the “progress in scientific knowledge” that is “essential to civilization.”

A century later, this mythic representation is hard to read absent some measure of skepticism if not cynicism. That response, though, should not cause us to forget that this characterization justified the establishment of a certain distance from and even defiance toward all powers that be, whether they be imperious governing boards, meddlesome government officials, overbearing plutocrats, or the tyranny of public opinion: “The scholar must be absolutely free not only to pursue his investigations but to declare the results of his researches, no matter where they may lead him or to what extent they may come into conflict with accepted opinion.”

Committed to an end whose realization cannot be confined within the walls of any single college or university, the work of the professor must not be regarded as “a purely private employment, resting on a contract between the employing authority and the teacher.” Unlike those wage-earners who by law must obey whatever orders their bosses issue, according to the AAUP, faculty members will fail to fulfill their professional imperatives if they only do as they are told. Yet it is precisely this gap between what duty demands and the state commands that the DeSantis plan for higher education conspires to close.

However politicized, this employment relationship remains specifically capitalist insofar as faculty are workers who exchange their labor in return for a wage. But this is also a relationship of domination and subordination. The Internal Revenue Service minces no words when it reminds us that “under common-law rules, anyone who performs services for you is your employee if you can control what will be done and how it will be done” (emphasis in original). Betraying the precapitalist residues that haunt contemporary employment law, qua masters, employers are those who have a legal right to demand not just obedience but also the duty of loyalty from those they hire. However, to their employees, qua servants, employers owe nothing more than what their contracts specify (and let us not forget that these contracts are forever mutable insofar as employers never forfeit the legal right to modify the tasks and performance expectations of those they command). No matter how much this may wound our pride, acceptance of this asymmetrical relationship is the price we pay each month in return for our paychecks.

This structural inequality is most perfectly realized in the doctrine of at-will employment, which entails the right of employers to terminate an employee at any time and without cause or even explanation so long as the dismissed cannot prove that an employer violated, for example, antidiscrimination law. That DeSantis aims to inject such precarity into the heart of Florida’s higher education system was made unequivocally clear when, also last April, he signed a second bill that does much to eviscerate the institution of tenure. Designed to allow removal of the “ideological activists” that now dominate higher education in Florida, like Stop WOKE, this law collapses the catholic obligations ascribed to the professorial office by the AAUP into a strict unitarian imperative: render unto Caesar what is his.

Forcing Faculty to Be Free
However inflammatory this characterization may appear, in the sense furnished by the Oxford English Dictionary (see part 1 of this series), the DeSantis plan for higher education qualifies as specifically fascist. What renders this regime still more insidious is its requirement that faculty members not merely comply but also endorse their subordination.

Long before Stop WOKE, Florida made no bones about its willingness to prohibit “disruptive activities” within public higher education, whether through the threat of coercion or, if need be, the infliction of punishment. State law provides that neither governmental nor nongovernmental funds will be made available to any public college or university that allows or supports “disruptive activities,” as that phrase is defined by their respective governing boards. To illustrate, the policy adopted by Palm Beach State College’s trustees provides for “disciplinary action” against anyone who obstructs “the normal processes and activities essential to the functions of the College community.” As one would anticipate, given its infatuation with centralized control, the DeSantis plan for higher education provides that the policies of colleges and universities must conform to regulations established by the state board of education and the board of governors, respectively. These statewide bodies, moreover, “may enforce applicable personnel laws, rules, or regulations by applying authorized sanctions,” which are not limited to but may include termination of an offender’s contract as well as denial of future appointment by any public school in Florida.

Should faculty members be fired or permanently banished under these provisions, they have only themselves to blame: “Any person who accepts the privilege extended by the laws of this state” by signing an employment contract with a state college or university shall “be deemed to have given his or her consent to the policies of that institution,” the imperatives of its governing board, and the decrees of Florida’s government. In virtue of this affirmation, a penalty meted out for disobedience is rightly regarded as a form of self-punishment; and, in principle, those so disciplined should respond with gratitude for this reminder of an agreement they voluntarily entered. Required to uphold their self-incurred obligations and endorse the consequences of their transgression, these wrongdoers are thereby forced to be free.

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.