BY HANK REICHMAN

In a long-awaited ruling a three-judge panel of the US Court of Appeals for the Eleventh Circuit, on July 7 ruled that Florida’s “Stop WOKE Act” restricting how race and gender can be taught in colleges and universities violates the free speech rights of professors.  As the AAUP’s Special Committee Report on Political Interference and Academic Freedom in Florida’s Public Higher Education System described it, the law, passed by the legislature as the Individual Freedom Act (SB7) and signed by Governor Ron DeSantis, “added a slew of new items to antidiscrimination law designed to restrict what can be taught.  The act makes it unlawful to subject any individual to required employment or educational training that ‘espouses, promotes, advances, inculcates, or compels such individuals to believe a series of specific concepts.'”

Individual faculty members, supported by prominent civil liberties organizations, challenged the law. In 2022 Judge Mark Walker enjoined enforcement of the act, declaring it “positively dystopian.”  The state appealed, arguing that “classroom instruction in public universities is government speech and thus not entitled to First Amendment protections.”  In an amicus brief urging the appellate court to uphold the injunction, the AAUP argued, “An essential aspect of academic freedom is the freedom of college and university faculty to teach a given subject without the government invading the classroom to suppress the expression of certain viewpoints.”   Under the Act, the brief continued, “Higher education would be liable to devolving into a political free-for-all” in which politicians exploit public universities for their own partisan ends.

In the majority opinion Judge Britt C. Grant, a Trump appointee, called the law “a breathtaking assertion of power to ban unpopular ideas from public discourse” in the very classroom space where students are supposed to “puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth.”  Judge Grant was joined by Judge Charles R. Wilson, a Bill Clinton appointee.  Another Trump-appointed judge, Barbara Lagoa — a former Florida Supreme Court judge picked by DeSantis — wrote a blistering dissent, contending the First Amendment “does not compel all viewpoints to be worthy of state-sponsored endorsement.”

It is worth quoting the introduction to Judge Grant’s opinion:

“Congress shall make no law . . . abridging the freedom of speech.”  The First Amendment, incorporated against the States in 1868, is this country’s written commitment to the idea that freedom of speech is essential to freedom of thought, and that both are essential to maintaining our liberty.  The Supreme Court has long been clear that teaching and scholarship are due some measure of protection under the Amendment.  But how much?  And in what contexts?  That Court has not had to say, but this one is now put to the test.  The State of Florida legislated a broad set of speech restrictions banning certain viewpoints relating to race, color, sex, and national origin in various settings.  The provision at issue here bars Florida’s educators from promoting or endorsing those disfavored ideas when instructing students.  Its prohibition applies not only in primary and secondary education, where states traditionally exercise a great deal of control, but also in public colleges and universities, where the state government’s role has been far more limited.

When several groups of professors challenged Florida’s new restrictions, the State cast about for an existing case or doctrine that could support its speech ban in the university setting.  Finding none, it tried to marry public-employee speech cases with government speech doctrine, resulting in a new rule: if the government pays a professor’s salary, it has total control over her classroom speech.

That is not a blessed union.  Florida’s salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State’s own statutes recognize as 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.  This new rule also runs headlong into the Supreme Court’s repeated, if imprecise, endorsements of academic freedom.  If the First Amendment offers any boundary of protection at all for public university classrooms, this statute crosses it.

Nor does this Court’s leading academic speech precedent, Bishop v. Aronov, demand the outcome Florida seeks.  In fact, it counsels the opposite.  The restriction in that case was imposed by one university, against one professor, relating to speech about one thing—personal religious views that got in the way of the course’s well-understood parameters.
That precedent makes clear that universities and even other government entities have crucial authority to shape curricular content, discipline teachers, and take other steps to guide and govern postsecondary education.  But the speech ban Florida’s political leaders seek to impose here is different in both nature and degree from these ordinary concerns.  The rule Florida developed for this case does not withstand scrutiny.

The ideas Florida targets may well be noxious.  Or maybe not.  Either way, in this context the First Amendment trusts students to figure it out for themselves.  We affirm the district court’s preliminary injunction.

Contributing editor Hank Reichman is professor emeritus of history at California State University, East Bay; former AAUP vice-president and chair of the AAUP Foundation; and from 2012-2021 Chair of AAUP’s Committee A on Academic Freedom and Tenure. His book, The Future of Academic Freedom, based in part on posts to this blog, was published in 2019.  His Understanding Academic Freedom was published in October, 2021; a second edition came out in March 2025.  He is a member of AAUP’s Committee on College and University Governance and President of the At-Large Chapter.