The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This past summer Florida adopted House Bill 7, better known as the Stop WOKE Act. The legislation blocks academic instruction and workplace training that "espouses, promotes, advances, inculcates, or compels" belief in a variety of race-related ideas. It is one of a number of so-called anti-"Critical Race Theory" bills that have been advanced by Republican policymakers in the states since 2020. Some have taken aim at workplace training. Others have focused on primary and secondary education. An emerging set of proposals are targeted at higher education. The Florida bill has elements of all three. The University of Florida produced providing guidance to its employees on how to comply with the bill, with a list of ideas that "instructors may not suggest or assert."
Several lawsuits have already been filed against the enforcement of Stop WOKE Act, and Judge Mark Walker has already issued a temporary injunction on the workplace training portions of the law. (Judge Walker had previously issued a sharp opinion in a case regarding the right of state university professors to serve as expert witnesses in lawsuits filed against the state. The state is currently appealing that case to the 11th Circuit.) The ACLU filed a separate lawsuit on the education components of the act, as has FIRE.
In response to anti-Communist measures aimed at state universities, the Warren Court emphasized that academic freedom was an important First Amendment value, but the scope and implications of that point are less than clear. In Garcetti v. Ceballos in 2006, the U.S. Supreme Court held that that when the speech of government employees is pursuant to their duties it is not protected by the First Amendment. Crucially, however, the Court held open the question of whether this was still true in the context of teaching and scholarship by university professors at state universities.
There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.
Lower courts have generally construed this as an academic freedom exception to Garcetti's government employee speech doctrine. As a consequence, scholarship and classroom teaching at state universities have continued to be afforded some degree of First Amendment protection. The academic freedom exception to Garcetti is probably critical to any First Amendment challenge to the anti-CRT bills.
I have a draft paper to be published by Wake Forest Law Review arguing that university-level classroom instruction should not be regarded as government speech for First Amendment purposes (classroom instruction in primary and secondary public schools is probably a different matter).
In its response to the ACLU lawsuit, Florida is taking a big swing at academic freedom at state universities. The state argues that Garcetti's reasoning is inconsistent with preserving an academic freedom exception to government employee speech doctrine, and it points to lower court decisions involving classroom instruction in primary and secondary public schools as indicating that the state can regulate the speech that the "employee was being paid to create."
The in-class instruction offered by state-employed educators is also pure government speech, not the speech of the educators themselves. When "public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes." Garcetti v. Ceballos, 547 U.S. 410, 421-22 (2006). And "[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen." Therefore, "the employee of has no First Amendment cause of action." Accordingly, under the square reasoning of Garcetti, educators in public universities do not have a First Amendment right to control the curriculum.
Florida points in particular to a pre-Garcetti 11th Circuit ruling involving a professor at the University of Alabama. In that case, the professor made a habit of discussing his personal religious beliefs in his classes on exercise physiology. The circuit court held that the professor had no First Amendment right to defy his superiors when they told him to cut it out. The lower courts have a mixed record on the question of how much constitutional protection there might be for academic freedom of individual professors, as contrasted with academic freedom for universities as institutions, and Florida in this case urges the district court to hold that there is no "purported right to academic freedom."
Florida is right that First Amendment protection for individual professors in their scholarship and teaching at state universities is murky. Denying that such protection exists at all would be the easiest basis on which to uphold policies like the Stop WOKE Act, and Florida is willing to take that route. The stakes for the future of academic freedom in higher education could not be higher. If Florida wins on those grounds, the state could direct state university professors on what they say in their teaching and scholarship and sanction or fire professors for teaching or researching ideas that politicians do not like. Academic freedom in state universities would be a matter of grace. Of course, professors at private universities are in the same boat. Academic freedom protections in schools like Princeton University depend on contracts and professional norms, not constitutional protections. Academic freedom is under a growing threat at private universities as well. Unfortunately, if not constrained by constitutional limits, politicians seem increasingly inclined to significantly weaken the scope of academic freedom at state institutions. It is a war being waged on many fronts, and ironically the state of Florida is now joining the wokesters in urging that traditional academic freedom protections be tossed aside so as to advance currently fashionable political goals.