A judge is considering Florida’s “Stop WOKE” law that deals with instruction about race issues

By Dara Kam ©2022 The News Service of Florida.

TALLAHASSEE — A federal judge on Thursday sparred with attorneys about a controversial state law that restricts the way race-related concepts can be taught in classrooms, as university professors argue it violates speech rights.

Chief U.S. District Judge Mark Walker’s questions came during a hearing involving two challenges to the law, a priority of Gov. Ron DeSantis during this year’s legislative session.

What DeSantis dubbed the “Stop Wrongs To Our Kids and Employees Act,” or “Stop WOKE Act,” lists a series of race-related concepts and says it would constitute discrimination if students are subjected to instruction that “espouses, promotes, advances, inculcates or compels” them to believe the concepts.

Plaintiffs in the cases before Walker on Thursday include professors and students from several state universities, including University of South Florida history professor Adriana Novoa.

Asking Walker for a preliminary injunction to block the law, the plaintiffs’ lawyers argued that the restrictions are causing confusion for instructors, are having a chilling effect on speech inside classrooms and are an unconstitutional infringement of professors’ First Amendment rights. Walker did not immediately rule on the injunction request.

“Every day that the Stop WOKE act is in effect, plaintiffs and other similarly situated instructors and students are suffering ongoing and irreparable injury as they self-censor and live in fear that they will lose their jobs or their universities will lose state funding if they violate this vague and discriminatory law,” said Emerson Sykes, senior staff attorney at the American Civil Liberties Union’s Speech, Privacy and Technology Project.

But Charles Cooper, a lawyer with the firm Cooper & Kirk who represents the state university system’s Board of Governors and other education officials named as defendants, pointed to court rulings establishing that the government has authority to restrict public employees’ speech.

At least four lawsuits have been filed challenging the law. In one case, Walker in August issued a preliminary injunction against part of the law that seeks to restrict how race-related concepts can be addressed in workplace training. The state has appealed that ruling.

As an example of the law’s restrictions involving the higher-education system, it labels instruction discriminatory if students are led to believe that “a person’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin or sex.”

Similarly, instruction would be considered discriminatory if it leads students to believe that “a person, by virtue of his or her race, color, national origin, or sex, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin, or sex.”

The law also says that it “does not prohibit discussion of the concepts … provided such training or instruction given in an objective manner without endorsement of the concepts.”

The concepts identified in the law “are racially discriminatory and repugnant,” Cooper argued.

“We are not going to permit” those concepts to be espoused by instructors “in our classrooms, on our time … accepting our paychecks,” he added.

The law’s restrictions are permitted because it regulates “pure government speech” of college and university instructors who are speaking on behalf of the state when teaching on campus, Cooper said.

But Walker questioned the state’s approach, asking whether it could also result in students’ inculcation into certain beliefs. He said it could allow the Legislature to decide what viewpoints should be taught.

“You (the government) can pick and choose what viewpoint you like and, under the guise of stopping indoctrination, you promote indoctrination. Why is that not so?” he asked.

“The government, again, is the one who decides,” Cooper said, adding “the state embraces academic freedom.”

“So long as you say what we like,” Walker said.

The state’s rationale leads to a “dystopian” conclusion, he said.

“We believe in academic freedom, so long as you say what we want you to say. That sounds like something George Orwell wrote,” the judge chided.

Walker also peppered Cooper with a series of hypothetical circumstances to test what would be considered violations of the law.

For example, Walker asked if a professor would be espousing or advancing one of the prohibited concepts if she invited Cornel West, a high-profile academic who has written extensively about race, to speak to a class about his book.

“I think you may well be advancing one of the concepts if you bring in Dr. West … and he articulates any of these concepts,” Cooper said.

Walker asked if a professor could bring in a “countervailing” speaker to offset West, who has called the U.S. a “racist patriarchal” nation.

“Those events would be analyzed apart from each other, not necessarily in conjunction with each other,” Cooper said.

Walker also tangled with Cooper over how much power the government has over instructors’ speech, asking whether universities “literally can control every word” professors say and provide transcripts to be read in class.

“The autonomy of professors … can never, never overcome the university’s decision about what can and cannot be taught,” Cooper said.

Walker, who has frequently clashed with the state’s lawyers in other cases, also posed a scenario involving a teacher who uses a racial epithet, noting that, under federal law, the instructor could not be fired for saying such a word.

“Using the N-word one time by a teacher would not be actionable, but if they mention affirmative action” they could be sued under the Florida law, Walker said.

“Maybe affirmative action is more abhorrent in the new age than the N-word. … It’s shocking if that’s the new values that we embrace,” he added.

Speaking to The News Service of Florida after Thursday’s hearing, Novoa, who teaches Latin American history, said the law has had a chilling effect on her and made it difficult to determine what she can talk about in class.

“There are many issues in Latin America, Latin American history, that are dealing with race, with actions against indigenous populations and … slavery, obviously, so it’s a problem for me to understand exactly how there can be freedom of speech in a context in which there are certain issues that cannot be discussed,” she said.

Novoa, who immigrated to the U.S. from Argentina, contrasted the Florida law with what is permitted in countries run by dictators.

“In Cuba, you can discuss a lot vigorously. You’re encouraged to do that but only about the topics that are determined as OK. The reason given is that it is imperial indoctrination. So, in order to protect yourself from imperial indoctrination, you need to remove certain topics from discussion, which is ironic because it’s what we’re doing here,” she said.