BY TIMOTHY V. KAUFMAN-OSBORN

For academic freedom’s advocates, there is much to like about the recent federal court ruling prohibiting Florida’s board of governors from enforcing the Individual Freedom Act. Especially gratifying are the rhetorical tropes Judge Mark Walker deploys in justifying this preliminary injunction. When the legislature adopted what Governor Ron DeSantis dubbed the Stop W.O.K.E. Act, Walker writes, it effectively embraced the “dystopia” depicted by George Orwell in 1984. Under the banner of freedom from discrimination, that body has now anointed itself a “Ministry of Truth” and, that done, asserted its authority to determine “which viewpoints shall be orthodox [for example, America’s fidelity to equality under the law] and which shall be verboten [for example, the reality of structural racism] in its university classrooms.” The practice of “extravagant doublespeak,” Walker concludes, is alive and well in Tallahassee.

In two earlier blog entries, I argued that the Stop W.O.K.E. 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. Here, I extend that argument but suggest that what Judge Walker represents as a ruling in favor of academic freedom in fact justifies the state’s authority to encroach on that same freedom. Walker thereby intimates the structural reforms that are essential if the university is to prove a sustainable home for the unfettered inquiry that is its mission.

The Crux of Walker’s Opinion
The First Amendment’s free speech protections apply to public universities and colleges, despite their being state entities. That guarantee inheres in the Supreme Court’s affirmation of the principle of academic freedom in Sweezy v. New Hampshire (1957), Walker explains. This freedom, however, is not “an independent constitutional right” but an “adjunct” of the Constitution’s speech provisions. As such, governments can sometimes impose restrictions on state colleges and universities that would not withstand judicial scrutiny if applied to citizens generally.

To determine when such impositions are permissible, the Eleventh Circuit adopted a balancing test that weighs the academic freedom interests of professors against the state’s interest in regulating faculty speech. Application of this test leads Walker to conclude that the plaintiffs in Pernell v. Florida Board of Governors are likely to succeed on the merits and hence enforcement of Stop W.O.K.E. must now halt.

This conclusion, Walker insists, does not deny the state’s authority to prescribe curricular content: “Of course, the State has a say in which courses are taught at its public universities” and, by implication, what courses they may not offer. As Justice Hugo Black explained in Epperson v. Arkansas (1968), “It would be difficult to make a First Amendment case out of a state law eliminating the subject of higher mathematics, or astronomy, or biology from its curriculum.” However, once the state has authorized instruction regarding these topics, whether tacitly or explicitly, it cannot then require faculty to adopt the specific viewpoint it favors about these subjects. That, though, is precisely what the legislature has done through the Individual Freedom Act’s prohibition of instruction that may persuade students to endorse any of the eight “concepts” regarding race and gender it proscribes (for example, the belief that privilege is an unearned benefit of whiteness).

Big Brother in the Sunshine State
Walker’s affirmation of the state’s authority to dictate the content of higher education’s curriculum in Florida may disconcert those who, based on the headlines alone, are disposed to celebrate his ruling in Pernell. But this should come as no surprise. The exercise of this power is already apparent in statutorily-mandated general education courses that, to cite but one example, require “an understanding of the basic principles of American democracy and how they are applied in our republican form of government.” Draft legislation prepared at the governor’s request makes clear that DeSantis also aims to require public universities to “promote the philosophical underpinnings of Western civilization” and to prohibit instruction about any form of “identity politics, such as Critical Race Theory,” that might challenge those foundations.

Can we therefore be confident that Walker’s distinction between the state’s authority to mandate course content but not the specific viewpoints of those who teach that content will suffice to protect academic freedom? By his own admission, the distinction between content and viewpoint is permeable insofar as “viewpoint discrimination is a recognized form of content-based restriction on speech;” hence, instances of either will often implicate the other. If that is so, can the state circumvent Walker’s ruling by exercising its authority to ban all courses that entail discussion of the “concepts” targeted by the Individual Freedom Act?

Granted, once these courses are allowed, the distinction between content and viewpoint may be invoked to protect the right of LeRoy Pernell to teach about “the role of race in criminal procedure, using a casebook he authored that explains how racism is embedded in the criminal justice system.” But Walker’s argument appears to authorize the legislature to prohibit any courses that consider, for example, the topics of white supremacy or affirmative action as a partial remedy. In short, cannot the state effectively eliminate the viewpoints it finds objectionable by disallowing the curricular content that involves their consideration, in which case Big Brother will truly triumph?

What Academic Freedom Requires
What leads Walker to this unhappy implication is an attenuated understanding of academic freedom. The balancing test Walker applies to Stop W.O.K.E. is derived from a case involving a physiology professor at the University of Alabama who challenged the university’s proscription of his in-class discussion of religious matters deemed outside the appropriate scope of his assigned courses. In Bishop v. Aronov, the Eleventh Circuit ruled that when a professor and a university “disagree about a matter of content in the courses he teaches…the University must have the final say in such a dispute.” Here, an individual faculty member’s assertion of a right to say what he pleases is overridden by a university’s interest in maintaining the integrity of its curriculum; and that curriculum’s content, as we have seen, is ultimately subject to determination by the state.

Walker obscures the reality of such political control by conflating what he labels the “State’s valid exercise in prescribing a university’s curriculum” and a university’s authority, quoting from Sweezy, “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” Any adequate characterization of academic freedom, however, must disaggregate these two claims as a condition of affirming the university’s autonomy against the state. Too often, today, we equate academic freedom with the right of individual faculty members to teach, research, and pontificate on Twitter as they see fit. What we urgently need now, though, is a declaration of the university’s collective right to determine its curriculum absent interference by any external body, whether that be the state legislature or, in Florida, the board of governors whose members are appointed by the state’s chief executive officer and confirmed by the senate.

Asserting the university’s autonomy is not, however, sufficient. Abstract references to the “university” veil the question of who is authorized to specify its educational program within the academy. As the AAUP has argued for over a century, in virtue of its expertise in matters educational, that authority must be located within the faculty as a body. Contra the AAUP, this end cannot be accomplished via an appeal to “shared governance,” for that category leaves intact the autocratic constitution of rule that has warped America’s colleges and universities since their first founding. To subordinate the professoriate to actors alien to itself is to strip from faculty the power of self-governance that is an indispensable prerequisite of academic freedom.

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.