A divided U.S. Court of Appeals for the 11th Circuit ruled Tuesday that Florida's "Stop WOKE Act" provisions restricting how professors teach about race and gender violate the First Amendment.
The 2-1 decision keeps Florida from enforcing the higher-education provisions of the so-called Stop WOKE Act by affirming a preliminary injunction, meaning the law remains blocked while the case continues; Florida can ask the full 11th Circuit to rehear the case or petition the Supreme Court to review it.
Judge Britt Grant, an appointee of President Donald Trump, wrote the opinion, joined by Judge Charles Wilson, an appointee of former President Bill Clinton, rejecting Florida's argument that professors' classroom speech belongs to the state because they are paid by the government and writing, "If the First Amendment offers any boundary of protection at all for public university classrooms, this statute crosses it."
Grant and Wilson wrote that the state's position was a "breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the state's own statutes recognize as centers of inquiry" and added, "Hearing an idea you disagree with is not discrimination; it is an opportunity to come up with a better idea, or maybe even change your mind."
Grant also wrote that "Florida seeks to strip public university professors — and by extension their students — of the ability to fully engage with ideas that are, for better or for worse, very popular in some academic circles," and, "We share the dissent's view that the federal courts do not police curriculum. But we do police the First Amendment. And if the history of that Amendment tells us anything, it is that the government cannot forbid what it perceives as heresy."
Judge Barbara Lagoa, another Trump appointee and a former Florida Supreme Court justice picked by DeSantis, dissented, writing, "The First Amendment protects all viewpoints in the public square, whether they are conventional or controversial," and, "But it does not compel all viewpoints to be worthy of state-sponsored endorsement."
The law, formally called the Stop Wrongs to Our Kids and Employees (WOKE) Act, was passed by the Legislature and signed by Gov. Ron DeSantis in 2022; DeSantis pushed for the law as a bulwark against "indoctrination." It bars instruction that "espouses, promotes, advances, inculcates, or compels" students to believe a series of concepts tied to race, sex, national origin and privilege, including that a person is inherently racist or sexist because of race or sex or that a person should feel guilt or psychological distress because of past actions committed by members of the same race or sex. Other parts of the law that sought to ban workplace training on racial, gender and sexual orientation issues have been struck down by federal courts.
The ruling resolved two lawsuits brought by professors, students and a student group; one challenge was filed by the Foundation for Individual Rights and Expression, and another was brought by the American Civil Liberties Union, ACLU of Florida, Legal Defense Fund and the law firm Ballard Spahr. LeRoy Pernell, a Florida A&M University College of Law professor and one of the instructors who brought the lawsuit, said in a released statement, "We are thrilled the court has stopped the erasure of topics that have real implications for our students, allowing them to learn, discuss, and develop tools for combatting the complex issue of racism in our country without being gagged by those who would dictate that only state-approved thought may be promoted." Leah Watson, senior staff attorney with the ACLU's Racial Justice Program, said in a statement, "This ruling was worth the wait. It sets a strong precedent that higher education cannot be limited to the whims of politicians."