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In 2022, Florida’s Republican state legislators passed the Stop WOKE Act, championed and signed by GOP governor Ron DeSantis. The law would limit the way faculty members at public universities can teach about race and gender.
But since November of that year, federal judges have repeatedly blocked the law from impacting universities. Florida students and faculty members represented by the NAACP Legal Defense Fund, the American Civil Liberties Union and other groups have won a preliminary injunction to halt its implementation, and they’re continuing to push to have the act’s restrictions on classroom teaching ruled unconstitutional.
Attention-grabbing oral arguments a week ago before the U.S. Court of Appeals’ 11th Circuit conveyed what could happen if they lose. A heavy-hitting Washington lawyer, known for representing big-name Republicans and now defending the Florida law, made a series of arguments that academic freedom advocates have called “extreme.” If judges adopt these conclusions, they say, states could demolish the tradition of academic freedom in American higher education.
Florida found a powerful advocate: Charles J. (Chuck) Cooper has represented U.S. attorneys general, former ambassador to the United Nations John Bolton and others, and he was once himself a U.S. assistant attorney general in the Reagan Administration. In that role, Cooper successfully urged Samuel Alito to become his deputy, and The National Law Journal reported that Cooper advised Alito on his later, successful confirmation to the U.S. Supreme Court.
Last Friday, Cooper told the three 11th Circuit judges that professors’ speech in the classroom is government speech, and “the state, when it is the speaker, it can choose what it wants to say.” Cooper said a state can “insist that professors not offer—or espouse, I should say, and endorse—viewpoints that are contrary to the state’s.”
One of the three judges on the panel, a Donald Trump appointee, later asked a question that showed how far Cooper’s argument could extend. The judge posed a hypothetical about how much the state could limit classroom teaching if the judges were to accept Cooper’s arguments: “Could a legislature prohibit professors from saying anything negative about a current gubernatorial administration?”
Cooper replied: “I think, your honor, yes, because in the classroom the professor’s speech is the government’s speech and the government can restrict professors on a content-wide basis and restrict them from offering viewpoints.”
Risa Lieberwitz, general counsel for the American Association of University Professors (AAUP), told Inside Higher Ed that “the state of Florida is making an extreme argument about the First Amendment that would eliminate academic freedom completely in the classroom, and that is an argument without merit under the First Amendment.”
Keith Whittington, founding chair of the Academic Freedom Alliance and a Princeton University politics professor, said Cooper’s reply “seems an obviously extreme answer to the First Amendment issue, so it clarified what the stakes were.”
Those stakes are stark. “It means that political officials, including state legislatures, can simply determine what messages they want conveyed in the classroom, what messages they don’t want conveyed in the classroom,” Whittington said of Cooper’s argument. “It’s clearly a terrible thing for academia if the argument gains traction and courts accept it,” said Whittington, who recently published the book You Can’t Teach That! about politicians’ attempts to dictate what’s taught in classrooms. “It really does open the door to any kind of legislative intervention that states might want to engage in about restricting what might happen in classrooms … or even scholarship, potentially.”
In response to Inside Higher Ed’s request for an interview, Cooper wrote in an email that “the controlling precedent from the Supreme Court and 11th Circuit clearly and dispositively support the constitutionality of the act.”
The End of Academic Freedom?
The Stop the Wrongs to Our Kids and Employees (WOKE) Act is one of multiple “divisive concepts” laws that Republican-led states have passed since 2020. That year, President Trump issued an executive order curtailing the teaching and advocacy of “divisive concepts” in executive agencies and the military. While the Biden Administration reversed Trump’s order, states have adopted laws that contain lists of targeted concepts similar to Trump’s.
Florida’s law, perhaps the nation’s most far-reaching if it does take effect, says the state considers it discriminatory “to subject any student or employee to training or instruction that espouses, promotes, advances, inculcates or compels” them “to believe any of the following concepts.” It then lists eight taboo ideas. Among them: the idea that a person “should be discriminated against or receive adverse treatment to achieve diversity, equity or inclusion” and that a person’s status as privileged or oppressed “is necessarily determined by his or her race, color, sex or national origin.”
At the end of the list is a paragraph saying the list “may not be construed to prohibit discussion of the concepts listed” provided “instruction is given in an objective manner without endorsement of the concepts.” The word “endorsement” isn’t defined.
Leah Watson, an ACLU attorney, told the judges during oral arguments that Stop WOKE amounts to unconstitutional viewpoint discrimination. “It only restricts their [faculty members] personal views if they don’t agree with the state,” Watson said. The law permits professors to “compel, espouse, promote ideas all day long—as long as they’re the ones that the state agrees with.”
But it’s Cooper’s argument that professors’ in-classroom speech is government speech that—if judges agree with it—could carry the most devastating implications for academic freedom. Lieberwitz, the AAUP general counsel, said it represents “a continuation of the attacks on higher education that we’re seeing over the last few years” but also “a new extreme of an attempt to use the law as a way of dictating what faculty should say in the classroom.”
Matthew Finkin, a law professor at the University of Illinois at Urbana-Champaign, said the argument that public university professors’ speech is government speech is actually “quite old, it goes back 100 years—the idea that we appoint you to say what we tell you to say.”
But that idea has also “been repudiated resoundingly for 100 years,” Finkin said, citing decades of legal precedent contradicting Cooper’s argument. Even if the case ultimately reaches the conservative U.S. Supreme Court, he said, “I am dubious that even this court would buy that argument. There’s just too much water under that bridge.”
“The governor is not a ventriloquist,” Finkin said. Professors “are not ventriloquists’ monkeys,” he added. “Otherwise what do you have?” he said. “You have the Chinese or the Russian university.”
Those conclusions were echoed by Howard Miller, an education, labor and employment attorney at Bond, Schoeneck and King. When a professor is in a classroom, Miller said, “it’s not his job to say whatever Ron DeSantis wants him to say.” If you take Cooper’s arguments to their logical conclusion, Miller said, “you’d almost be having Soviet-era universities.”
Miller said the First Amendment protects against public employers, such as public universities, becoming “thought police.” The state of Florida’s argument, he said, “would be making the state an authoritarian regime.”
When a public university, as an entity, puts out a statement, that is government speech, Miller said. But “the government can’t engage in viewpoint discrimination against its own employees.”
Whittington, the Academic Freedom Alliance founding chair, said he thinks “this is a somewhat unsettled issue and the state is making a particularly aggressive argument.” The state could have opted for a more nuanced defense that left “space for individual academic freedom within the confines of the First Amendment,” Whittington said. Instead, it’s trying to “play for all the marbles” by arguing that, in public universities, “there is no individual academic freedom right under the First Amendment.”
If Florida were to prevail with its radical argument, Whittington said, the ramifications might not remain confined to the classroom. Scholarship could also be impacted. And such a decision could open the door for both red states and blue states to restrict teaching and publications about ideas they don’t like.
Whittington said “the dynamics of the culture war” have eroded the self-restraint lawmakers used to have when it came to regulating public universities. If Florida’s argument wins the day, and voters press their politicians to stop ideas they don’t like, “state politicians will be able to say, well, I can do something about that.”
