The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Higher Education "Reform" in Florida
Some of the proposals pose real threats to free inquiry
At the end of January, Florida Governor Ron DeSantis held a press conference to announce a package of higher education reforms. I noted at the time that the details would matter, but that there was cause for concern.
We now have some details in the form of House Bill 999. If anything, the current bill is worse than the bullet points the governor outlined a few weeks ago. The text of HB 999 can be found here. Hopefully the bill will be improved before its seemingly inevitable final passage.
Some of the highlights:
- A prohibition on academic majors or minors in critical race theory, gender studies, or derivatives of "these belief systems." This is an extremely unusual legislative intervention into the academic affairs of state universities, and the current language attempts to avoid evasion by including a ridiculously vague catch-all. Can the University of Florida continue to offer a major in "African-American Studies?" Who knows.
- Florida already has a post-tenure review system for faculty. The bill would allow reviews to be immediately triggered "for cause," which could put problematic faculty on a path to being terminated after a year. The current process puts a lot of discretionary power in the hands of the provost to declare the performance of tenured professors unsatisfactory and get rid of them. Politically inconvenient faculty may find tenure protections to be less than advertised in Florida.
- Specifies that the board of trustees has sole responsibility for hiring faculty, though university presidents "may provide hiring recommendations." Current faculty need not be consulted.
- In addition, section 1001.725(1)(a) directs that
The board of trustees may delegate its hiring authority to the president; however, the president may not delegate such hiring authority and the board must approve or deny any selection by the president.
Say what now? The president has to personally read all the application files for even adjunct positions and make the hire for every vacancy in the university? Good luck with that.
- Prohibits diversity statements in faculty hiring and promotion, but the language used here is an absolute mess. The legislature should revise this section and borrow the model language outlined by FIRE.
- And then we have this:
Each state university board of trustees may, at the request of its chair, review any faculty member's tenure status.
The board can unilaterally revoke tenure? So tenure in Florida might protect you from an unhappy department chair, but it won't protect you from the university leadership (through post-tenure reviews) or the trustees (through this provision). Don't rock the boat in the Sunshine State.
- A ban on "any programs or campus activities" that "espouse diversity, equity, and inclusion or Critical Race Theory rhetoric." Courts are going to love that language. This also would seem to go well beyond activities initiated and run by the DEI bureaucracy and cut into scholarly activities by faculty and academic affairs. Not good from an academic freedom perspective, and quite likely to run into First Amendment concerns.
- A ban on general education core courses that "suppress or distort significant historical events or include a curriculum that teaches identity politics" or "defines American history as contrary" to the principles of the Declaration of Independence. This has already been framed by critics as a legislative ban on teaching race, etc. It clearly is not, but it is another word salad that courts will not appreciate. To the extent that it bans certain perspectives in university teaching, it will run into the same constitutional problems as the Stop Woke Act.
- A legislative mandate that every student take a class that "promote[s] the values necessary to preserve the constitutional republic through traditional, historically accurate, and high-quality coursework." The effort to control the perspectives being taught in university teaching likewise runs into academic freedom concerns, but it is not so obvious to me that this will suffer the same fate as the Stop Woke Act. Florida might well prevail in arguing that this specific course is government speech and instructors will be employed solely to be the mouthpiece of the government. Highly unusual in a state university environment, but I have argued elsewhere that this is a constitutionally possible option.
- The same provision also specifies that courses with "unproven, theoretical, or exploratory content are best suited to fulfill elective or specific program" requirements and should not be general education courses. This is just weird and probably unworkable.
That's a lot of "reform." Hard to imagine that this kind of micromanagement of how universities operate will be very workable in practice, even if it were a good idea. It is not quite as terrible as some critics are already claiming, but it poses a serious threat to tenure protections and faculty hiring. There will also be some substantial constitutional challenges to several provisions of this bill if it gets adopted in anything like its current form. In the name of prohibiting political litmus tests for faculty, the reform will wind up imposing political litmus tests for faculty.
