In recent weeks, plaintiffs who are suing to invalidate Florida Gov. Ron DeSantis’s “Stop Woke Act” have been confronting its defenders with a seemingly loaded question: Would the law, which restricts school discussion of race, prohibit a public university professor from endorsing affirmative action in a classroom setting?
Surprisingly, lawyers defending the DeSantis administration just answered this question with a qualified “yes.” Which exposes a core truth about his anti-woke directives: They really do constitute efforts at state censorship, not just of concepts he likes to call “woke indoctrination” but also of viewpoints that are contested yet remain squarely within mainstream academic discourse.
The bizarre admission comes in a new filing by lawyers defending the Stop Woke Act against a lawsuit from professors and free-speech advocates who argue that it violates the First Amendment and restricts academic freedom. (Last November, a federal judge agreed, temporarily blocking the law’s application to public universities.) The plaintiffs have objected that under the law, a professor might risk her job by uttering the phrase “I agree with affirmative action.”
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At issue is a provision of the law banning instruction that “espouses” or “promotes” certain concepts about race in schools and public universities. One prohibited concept is that an individual “should be discriminated against” to “achieve diversity, equity, or inclusion,” or DEI, which is widely despised on the right.
The state’s filing essentially agrees that this provision could potentially ban public agreement with affirmative action. It reiterates the state’s argument that public university professors are state employees, giving the state broad control over what they teach. And it says this:
“The state is saying that the Stop Woke Act gives it the power to prohibit public university professors from expressing support for affirmative action,” Wilkens told me. “A more blatant intrusion into academic freedom is hard to imagine.”
Jeffrey Sachs, a political scientist who tracks state-level censorship efforts, points out that under the state’s own interpretation of the Stop Woke Act, professors would plainly not have to worry about expressing opposition to affirmative action, but at a minimum would have to be cautious about supporting it.
“Are they really saying that you can adopt a position, but that position must be critical of affirmative action, and can never be supportive of it?” Sachs said. “That’s insane to me.” A university faculty can’t “properly fulfill its educational mandate,” he added, if its members “cannot stake out what they believe to be a correct position on a matter as important as affirmative action.”
Any public university professor reading the state’s brief might reasonably conclude that if the state decided her support for affirmative action constituted an endorsement of “discrimination” — a position many on the right, including DeSantis, do hold — then she’d be in violation of the law. Why risk expressing that view?
Adriana Novoa, a history professor at the University of South Florida and a plaintiff in the case, notes that this fear could chill classroom speech. She asks whether educators can lawfully agree with, say, Supreme Court Justice Sonia Sotomayor’s dissent from the Supreme Court ruling invalidating affirmative action programs in higher education.
“My colleagues and I have no idea,” said Novoa, who is suing along with the Foundation for Individual Rights and Expression. “Most will steer clear of teaching these topics altogether.”
Or consider another concept that cannot be “promoted” under the Stop Woke Act: the idea that a person’s “status” as “either privileged or oppressed is necessarily determined by his race” or other characteristics.
Here again, given the fuzzy word “status,” a professor might pause before agreeing with a book holding that race still helps determine one’s place in the social and economic order. Even if you disagree with that proposition, why would you want a professor to treat this as off-limits in a university, where students sharpen their thinking skills by articulating conflicting views on challenging, disputed topics?
DeSantis and his acolytes piously insist that the only goal is to protect students from destructive “woke indoctrination.” Students must not be told their country and its history are irredeemably marred by racism and white supremacy, or instructed to feel guilt for the horrors of the past.
This might be more credible if DeSantis’s defenders evinced a tad more concern that the vagueness of his directives might spook educators into muzzling their expression of views that, while contested, are obviously within the broad mainstream of scholarship.
Yet it seems that for DeSantis, inducing this sort of fear-driven self-censorship is a feature of his directives, not a bug. It’s surprising, albeit useful, that DeSantis’s own lawyers decided to reveal the truly pernicious nature of this ugly game.
Surprisingly, lawyers defending the DeSantis administration just answered this question with a qualified “yes.” Which exposes a core truth about his anti-woke directives: They really do constitute efforts at state censorship, not just of concepts he likes to call “woke indoctrination” but also of viewpoints that are contested yet remain squarely within mainstream academic discourse.
The bizarre admission comes in a new filing by lawyers defending the Stop Woke Act against a lawsuit from professors and free-speech advocates who argue that it violates the First Amendment and restricts academic freedom. (Last November, a federal judge agreed, temporarily blocking the law’s application to public universities.) The plaintiffs have objected that under the law, a professor might risk her job by uttering the phrase “I agree with affirmative action.”
ADVERTISING
At issue is a provision of the law banning instruction that “espouses” or “promotes” certain concepts about race in schools and public universities. One prohibited concept is that an individual “should be discriminated against” to “achieve diversity, equity, or inclusion,” or DEI, which is widely despised on the right.
The state’s filing essentially agrees that this provision could potentially ban public agreement with affirmative action. It reiterates the state’s argument that public university professors are state employees, giving the state broad control over what they teach. And it says this:
That has the air of a snide joke, and the reasoning is qualified — if affirmative action is “discrimination” in pursuit of DEI, then endorsing it could be prohibited. But nonetheless, it’s a significant admission. It suggests that in certain scenarios, the state actually could determine that a professor’s agreement with affirmative action constitutes unlawfully espousing discrimination, notes Scott Wilkens, senior counsel at the Knight First Amendment Institute.
“The state is saying that the Stop Woke Act gives it the power to prohibit public university professors from expressing support for affirmative action,” Wilkens told me. “A more blatant intrusion into academic freedom is hard to imagine.”
Jeffrey Sachs, a political scientist who tracks state-level censorship efforts, points out that under the state’s own interpretation of the Stop Woke Act, professors would plainly not have to worry about expressing opposition to affirmative action, but at a minimum would have to be cautious about supporting it.
“Are they really saying that you can adopt a position, but that position must be critical of affirmative action, and can never be supportive of it?” Sachs said. “That’s insane to me.” A university faculty can’t “properly fulfill its educational mandate,” he added, if its members “cannot stake out what they believe to be a correct position on a matter as important as affirmative action.”
Any public university professor reading the state’s brief might reasonably conclude that if the state decided her support for affirmative action constituted an endorsement of “discrimination” — a position many on the right, including DeSantis, do hold — then she’d be in violation of the law. Why risk expressing that view?
Adriana Novoa, a history professor at the University of South Florida and a plaintiff in the case, notes that this fear could chill classroom speech. She asks whether educators can lawfully agree with, say, Supreme Court Justice Sonia Sotomayor’s dissent from the Supreme Court ruling invalidating affirmative action programs in higher education.
“My colleagues and I have no idea,” said Novoa, who is suing along with the Foundation for Individual Rights and Expression. “Most will steer clear of teaching these topics altogether.”
Or consider another concept that cannot be “promoted” under the Stop Woke Act: the idea that a person’s “status” as “either privileged or oppressed is necessarily determined by his race” or other characteristics.
Here again, given the fuzzy word “status,” a professor might pause before agreeing with a book holding that race still helps determine one’s place in the social and economic order. Even if you disagree with that proposition, why would you want a professor to treat this as off-limits in a university, where students sharpen their thinking skills by articulating conflicting views on challenging, disputed topics?
DeSantis and his acolytes piously insist that the only goal is to protect students from destructive “woke indoctrination.” Students must not be told their country and its history are irredeemably marred by racism and white supremacy, or instructed to feel guilt for the horrors of the past.
This might be more credible if DeSantis’s defenders evinced a tad more concern that the vagueness of his directives might spook educators into muzzling their expression of views that, while contested, are obviously within the broad mainstream of scholarship.
Yet it seems that for DeSantis, inducing this sort of fear-driven self-censorship is a feature of his directives, not a bug. It’s surprising, albeit useful, that DeSantis’s own lawyers decided to reveal the truly pernicious nature of this ugly game.
