A Judge Blocked Part of Florida’s Stop WOKE Act. Here’s What That Means for Higher Ed.

• A state judge struck down the portion of the Stop WOKE Act impacting colleges and universities.
• The Florida law championed by Gov. Ron DeSantis sought to limit what and how professors could teach race-related topics.
• Stop WOKE's demise could have ripple effects outside of Florida as many legislatures prepare for 2023 sessions.

In a win for academic freedom, a state judge struck down the part of Florida's Stop WOKE Act impacting colleges and universities.

Judge Mark Walker wrote in a scathing rebuke of the law that it constitutes "viewpoint discrimination," meaning it limits faculty speech to include only opinions the state agrees with. Walker suspended the state's ability to enforce the law in colleges and universities, the harshest penalty imposed on so-called "divisive topics" laws in higher education thus far.

"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," Walker wrote in his opinion.

"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."

BestColleges spoke with attorney Adam Steinbaugh of the Foundation for Individual Rights and Expression (FIRE), which represented two plaintiffs in the case, about what this decision means for future higher education censorship.

A Losing Argument

Florida's main defense of the Stop WOKE Act centered on the idea that public university professors are state employees. Therefore, the state has the right to regulate their speech.

Steinbaugh said this ultimately was a losing strategy for the state. The court understood that faculty are hired to speak on their expertise, not to espouse the views of whatever government officials are in power.

"Just because the state creates a university, that doesn't mean faculty has to sing the party tune," Steinbaugh said.

Another argument the state made, which the judge also dismissed, was that Stop WOKE is an effort to limit racial discrimination. The legislation included language forbidding faculty from promoting things like, "members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin."

Professors previously told BestColleges that this type of teaching does not occur in college classrooms.

Even if the goal was to curb racism, the court said, the Stop WOKE Act would still be unlawful.

"Simply because the state of Florida says it wants to reduce racism or sexism in public universities does not give the state … a safe harbor in which to enact rank viewpoint-based restrictions on protected speech," the opinion stated.

Too Vague to Interpret

Judge Walker's opinion also came down hard on the apparent vagueness of the Stop WOKE Act.

Experts had previously told BestColleges that similar divisive topics laws are purposefully vague in an attempt to chill speech. If faculty have trouble interpreting a law, they are more likely to air on the side of caution and omit materials they otherwise would have included in coursework.

Steinbaugh said this rang true with the Stop WOKE Act, as people could look at the same law and come away with different conclusions.

Walker used one part of the law's text to exemplify this problem:

"Under that provision, educators cannot endorse the view that '[m]embers of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin,'" Walker wrote.

The presence of a triple negative makes the law unnecessarily difficult to decipher, resulting in a "cacophony of confusion," Walker wrote.

"It is unclear what is prohibited and even less clear what is permitted," he said.

Impact on Future Laws

While Florida has already appealed this court's ruling, Steinbaugh said he expects the decision will serve as a warning to other states that intend to implement similar laws.

"I hope it sends the message that lawmakers should not try to tread on higher education and classroom ideas," he said.

Lawmakers in other states introduced similar bills impacting higher education previously, but those failed to advance, he added. More action could come in 2023, but this decision in Florida may cause lawmakers — and the advocacy organizations backing these bills — to reconsider their strategy.

"I would be surprised if any of that moved forward," Steinbaugh said, "especially after this."

The decision will likely not impact divisive topics bills that dictate what happens in government training or K-12 classrooms, he added. Those venues don't enjoy the same First Amendment protections that college faculty do.