Last month, two conservative groups made court filings to oppose Florida’s anti-woke law: The Academic Freedom Alliance (“AFA”) joined the Foundation for Individual Rights and Expression (“FIRE”) challenging the statute’s constitutionality.
The Florida law bans promotion of divisive concepts, based on race or sex, in the educational setting. Its language is similar to President Trump’s Executive Order 13950 which applied to the federal workforce but was withdrawn when Biden took office.
Challengers claim that the Florida law chills the free speech rights of professors and therefore violates both the First Amendment and what is called “academic freedom,” a term that is variously defined but here refers to the right of professors to teach as they see fit.
The law is actually a laudable and constitutionally sound measure to rein in the political radicalism and race-baiting that are so rampant in American schools and especially in universities. Most have heard of anti-American teaching materials such as the New York Times 1619 Project, which says that America is inherently racist, or the concepts of “white privilege,” which teach that Americans of European descent (“whites”) are “oppressors,” and even “race shaming” where teachers separate students by race, calling some groups “permanent oppressors” and others “permanently oppressed,” recently exposed and denounced by Moms in Duvall County, Florida.
The legal arguments against Florida’s law are misguided and lack merit. In fact, those committed to Martin Luther King Jr.’s principle – that we be judged not by the color of our skin but by the content of our character – should be thanking Florida officials for this legislation, not suing them.
One irony here is that the law actually forbids attempts at thought control, notwithstanding press reports to the contrary. Obviously, fighting thought control is a good thing. The law therefore secures greater freedom of inquiry and expression, not less.
For example, the law’s first provision reads in relevant part:
Subjecting any individual …. to required activity that … compels such individual to believe any of the following [racist] concepts constitutes discrimination based on race ….
The law therefore forbids compelling individuals to believe or parrot something. What’s objectionable here?
The law then gives examples of bigoted, divisive concepts that cannot be imposed. The list includes: 1) that one race is superior to another; 2) that individuals of one race, by virtue of that race, suffer from “unconscious bias;” 3) that one’s moral character is determined by race; and 4) that individuals can be held responsible, or punished, for actions committed in the past by other members of their race.
This is a problem?
The Florida law expressly protects freedom of thought: Its summary and preamble explicitly and repeatedly state that it seeks to prevent “indoctrination.” The law simply forbids teachers and professors from compelling students to adopt bigoted notions “as a condition of employment, membership, certification, licensing, credentialing, or passing an examination … or any other required activity …”
So who is criticizing this law and on what grounds?
Its most vocal critics are leftwing operatives like the American Civil Liberties Union and their lackeys in the press and on the bench, who want more radicalized class content and more race-baiting on campus. As for FIRE and AFA, who are not leftwing, their court filings raise issues that are unserious and puzzling. For example, the legal brief by the latter argues, in the main, that the Florida law will constrain what professors say (will “chill speech”).
For starters, professors are already under obligations imposed by faculty codes of conduct and professional associations to behave professionally. So they already cannot do and say whatever they want simply because they teach. Admittedly, “professionalism” can be hard to define. But the point is that they already have some professional and ethical constraints, as does almost everyone. For example, professors can’t discriminate based on race, including by creating a racially “hostile environment” (also hard to define) since that’s illegal; and they can’t spew obscenities in class since that’s unprofessional.
More to the point for this Florida statute, they also do not have any First Amendment right to indoctrinate their students. That would actually violate the students’ rights to freedom of thought and ultimately their freedom of conscience and religion.
As for the law’s specific treatment of professors’ speech and classroom conversation, the statute explicitly allows for academic treatment and class discussion of the politically charged topics of racial bigotry, sex discrimination and the like. That provision reads:
“[This law] may not be construed to prohibit discussion of the concepts listed herein as part of a course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts.”
So the law specifically allows classroom discussion of the difficult and divisive concepts, provided the discussion is objective and not partisan – that is, “without endorsement.” This sounds like a requirement that teachers be professional and respectful.
One keeps wondering: A lawsuit was filed over this?
Unfortunately, the AFA brief goes on to list a speculative parade of horribles that might befall a professor if the law takes effect: What if a professor spends more time explaining arguments for affirmative action than those against? A professor could be accused of lacking objectivity in violation of the law’s objectivity requirement.
Or: What if a professor describes traditional roles of women in history– couldn’t someone complain this is “advancing” divisive sex-based concepts in violation of the law?
Well, sure – laws can be abused and frivolous complaints can be filed. But the rules in court not only forbid such antics; they sanction them. It’s the job of a judge to separate the wheat from the chaff, the serious from the unserious.
A law is not bad or unconstitutional because people operating in bad faith will make strained arguments pursuant to it. In fact, we already have these kinds of abuses under other civil rights laws but no one says those laws are therefore unconstitutional. Instead, we lament what’s called “lawfare.”
In fact, the time of the AFA and FIRE would be better spent opposing lawfare than Florida.
Because the problem is not Florida’s reasonable policy to fight indoctrination (what policy would AFA and FIRE propose)?
The problem is bad-actor ideologues in academia who like indoctrinating students and misguided academic freedom advocates like FIRE and AFA who think professors get to say and do anything they want.
They don’t.
Teresa R. Manning is Policy Director at the National Association of Scholars, Vice-President of the Virginia Association of Scholars, and a former law professor at Scalia Law School, George Mason University.