(CN) — Florida officials asked a federal appeals court on Friday to toss out a decision by a lower court preventing enforcement of a law which would have restricted state university professors from expressing disfavored viewpoints on concepts related to race and sex in the classroom.
A three-judge panel of the 11th Circuit in Miami had mixed reactions to arguments in the case brought against the Florida Board of Governors by a group of college professors and students. The plaintiffs sued in 2022 to challenge a provision of Florida’s Individual Freedom Act, also known as the Stop Wrongs Against Our Kids and Employees Act (Stop W.O.K.E. Act), which forbids professors from endorsing eight concepts related to race, color, national origin or sex during classroom discussions.
Referred to by one of the plaintiffs’ attorneys on Friday as a “blacklist of ideas,” the eight concepts include ideas suggesting that members of one race, color, sex or national origin are morally superior to others, that a person is “inherently racist, sexist or oppressive” by virtue of his race or sex or that people should feel guilty about the actions of their ancestors.
A Florida federal judge called the Act “positively dystopian” in a 2022 ruling blocking state officials from enforcing it in the state’s colleges and universities.
In March, the 11th Circuit rejected a motion from officials seeking to let the Act take effect while an appeal of the decision was pending. A panel of the appeals court dealt a blow to the state earlier this year in a related case, finding an element of the Act violates the First Amendment by prohibiting mandatory workplace training about progressive ideas.
An attorney for the officials told a panel of the appeals court on Friday that the state’s interest in “the efficient and effective functioning of its educational institutions” and in “preserving public confidence in those institutions” outweighs the interest professors have in expressing their viewpoints and beliefs.
Attorney Charles Cooper of Cooper & Kirk urged the three-judge panel to toss out the injunction. Cooper said courts have repeatedly found that the state “can have a viewpoint and may insist that professors not espouse and endorse viewpoints that are contrary to the states.”
At least one judge on the panel did not appear swayed. U.S. Circuit Judge Charles Wilson, a Bill Clinton appointee, said ruling in favor of the state would force the appeals court to split with other circuit courts which have recognized that professors at public universities retain First Amendment protections when engaged in teaching and scholarship.
Those circuit court decisions flow from the U.S. Supreme Court’s 2006 findings in Garcetti v. Ceballos, Wilson said.
Cooper asked the panel to find that professors’ speech amounts to government speech outside the First Amendment’s protection.
But an attorney for the plaintiffs told the panel that classroom instruction given by a professor is not the same as the university speaking.
“The classroom is the marketplace of ideas,” Leah Watson, a senior staff attorney for the American Civil Liberties Union’s racial justice program, said. “If classroom instruction were government speech, the government would be expressing contradictory views.”
The two Trump-appointed judges on the panel appeared more amenable to the state’s arguments. U.S. Circuit Judges Britt Grant and Barbara Lagoa both questioned why the state should not be entitled to guide the curriculum of universities receiving state funding.
But Watson countered that universities have long had the right to uphold their own academic standards away from legislative overreach.
“Each professor [in this case] has alleged that their professional views in accordance with their academic standards are limited by the Act,” Watson said. “The line here is that the university has always maintained academic standards but the legislature cannot.”
The plaintiffs have also argued that the Act unfairly imposes harsh penalties for disfavored speech, including withdrawal of funding for colleges and universities.
Cooper suggested in rebuttal that students and professors are free to choose universities in other states if they dislike Florida’s curriculum.
“That’s the genius of federalism,” the attorney said. “States get to make decisions about the content of the courses taught in their schools, and that includes viewpoints. To the extent that plaintiffs and other professors cannot conform themselves to the requirements of the state’s curricular commands, they can see if there are other states that are friendlier to their viewpoints.”
The panel did not indicate when they will issue a ruling in the case.
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