Fla.’s Stop WOKE Act Remains Stymied

The Stop WOKE Act continues to be blocked at Florida public colleges and universities, and it will likely stay that way at least through the end of this academic year.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit released a ruling Thursday that a lower court’s injunction stopping the law’s enforcement in public higher education will remain in effect while appeals of the injunction continue.

The Florida Board of Governors of the State University System and the University of South Florida Board of Trustees have been defending the act in court. Spokespeople for both said Thursday that they don’t comment on pending litigation.

The Stop the Wrongs to Our Kids and Employees (WOKE) Act limits how instructors can discuss race and gender in public universities and K-12 schools, although only its application to higher education has been halted by the injunction. Similar legislation, called “divisive concepts” laws, has proliferated across the country in recent years.

Ron DeSantis, the Republican governor of Florida, signed the act into law last year.

The appeals court panel’s order doesn’t say why the judges refused to lift the injunction at this point.

“In order to get the injunction lifted during the appeal, the state of Florida would have had to have shown both that they were likely to succeed on the merits of their appeal and if the injunction were not stayed there would be irreparable harm to the state of Florida’s interests,” said Adam Steinbaugh, a lawyer for the Foundation for Individual Rights and Expression (FIRE).

FIRE is opposing the law in one of two ongoing cases that have been consolidated. Steinbaugh said FIRE and local counsel are representing a University of South Florida professor, a student and a student organization there called the First Amendment Forum.

“This case is dealing with fundamental rights in higher education, and these are rights [that] belong to everyone, no matter your views,” he said. “And the arguments that the state of Florida is trying to establish is that there are no real First Amendment rights for faculty, and that is a position that’s going to be the sinking tide that lowers all boats. It will undermine the ability of faculty members, whether on the right or the left, to defend their expressive freedoms, because the First Amendment is often the last line of defense for academic freedom and for freedom of expression.”

The appellants’ consolidated brief is due by April 17, the appellees’ brief is due 30 days after the last appellants’ consolidated brief and then there are reply briefs—so the injunction will likely remain at least through the end of the spring semester.

The NAACP Legal Defense Fund, the American Civil Liberties Union, the ACLU Florida arm and another pro bono law firm are representing other plaintiffs in the other half of the consolidated case.

“All students and educators deserve to have a free and open exchange about issues related to race in our classrooms—not censored discussions that erases the history of discrimination and lived experiences of Black and Brown people, women and girls, and LGBTQ+ individuals,” said Leah Watson, an ACLU senior staff attorney, in a news release.

In his 139-page lower court ruling, Chief U.S. District Court Judge Mark E. Walker began with the first line of George Orwell’s 1984: “It was a bright cold day in April, and the clocks were striking 13.”

Walker concluded by saying Florida is laying “the cornerstone of its own Ministry of Truth.”

“Striking at the heart of ‘open-mindedness and critical inquiry,’ the State of Florida has taken over the ‘marketplace of ideas’ to suppress disfavored viewpoints and limit where professors may shine their light on eight specific ideas,” he wrote. “And defendants’ argument permits zero restraint on the State of Florida’s power to expand its limitation on viewpoints to any idea it chooses. One thing is crystal clear—both robust intellectual inquiry and democracy require light to thrive.

“Our professors are critical to a healthy democracy, and the State of Florida’s decision to choose which viewpoints are worthy of illumination and which must remain in the shadows has implications for us all. If our ‘priests of democracy’ are not allowed to shed light on challenging ideas, then democracy will die in darkness. But the First Amendment does not permit the State of Florida to muzzle its university professors, impose its own orthodoxy of viewpoints, and cast us all into the dark.”