Proposed Florida University Regulation Raises First Amendment Concerns

The rule would seek to further define Florida's anti-DEI law, placing broad restrictions on academic instructors in the process.
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Published on October 31, 2023
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  • A Florida bill that was signed into law prohibits public colleges and universities from funding diversity, equity, and inclusion (DEI) programs.
  • The Legislature has now proposed a regulation, which attempts to further define the law and could prevent academic instructors from exercising free speech, opponents say.
  • A group of former Florida students and professors filed a lawsuit, attempting to block parts of the law.
  • A First Amendment expert weighs in.

A new regulation that the Florida Legislature has proposed could prohibit public universities from funding or participating in what it deems as social activism.

The regulation further defines Senate Bill 266 (SB 266), which was signed into law and went into effect July 1 and bars public universities from funding diversity, equity, and inclusion (DEI) programs.

The proposed regulation is raising eyebrows for many as a potential violation of educators' First Amendment rights.

Language in the regulation would ban universities from promoting activities that might polarize or divide society among political, ideological, moral, or religious beliefs, positions, or norms. Because the wording itself is vague, some are concerned that educators could be subject to disciplinary action for instructing on a wide variety of topics.

I can't think of anything that doesn't [break the rules of the new regulation], University of South Florida General Counsel Gerard Solis told the Tampa Bay Times. He said that even teaching on common issues, like Black History Month, could lead to violations of the proposed regulation because of what some perceive as their controversial nature.

He is not alone in his concern.

By attempting to limit what can be taught in general education core courses, the regulation directly infringes upon [instructors'] academic freedom as well as their right to freely engage in free speech and debate on all topics of interest and concern, a lawsuit filed on the matter stated.

The suit targets specific portions of SB 266 — rather than the new regulation itself — and is being brought by professors and students from New College of Florida, the Sarasota university that made headlines earlier this year after Florida Gov. Ron DeSantis reshaped its Board of Trustees to align the school with more conservative ideals.

Targeting parts of SB 266 for injunction — rather than the regulation alone — could be effective since the regulation simply gives body to the already enacted SB 266. In an Oct. 23 court hearing, Gary Edinger, attorney for the plaintiffs, argued that, independent of the regulation, SB 266 could be used to punish professors right now.

But there is no guarantee the argument will succeed.

Jane Bambauer, a First Amendment expert and professor of law at the University of Florida's Levin College of Law, told BestColleges that First Amendment protections do not necessarily apply to state-sponsored academic settings.

The usual rule is that the government can't censor the speech of individuals and private organizations, but it can manage its own speech, Bambauer said.

So, there's a set of government speech cases that basically says that the government can say what it wants. It can restrict itself in its messaging as well, and it can even, to some degree, control its employees — and that's sort of the terrain that we're in. Faculty members are a special kind of government employee when they work at a university.

Bambauer went on to say that the Legislature, in being the sponsor and watchdog of public educational programs, has a legal right to regulate the messages those programs convey.

If the state thinks the university is not rising to the level of academic integrity that it expects ... If it thinks they are indoctrinating rather than promoting critical thinking. If it means that ideology distorts the administration of education — if that's what the Legislature sees, I don't think that notions of academic freedom are so expansive that the Legislature couldn't intervene in some way.

Bambauer added, though, that, Generally, when the nature of the state's interference with faculty function is for the purpose of demanding political purity or homogeneity, those are the cases where the courts will find a free speech problem.

In other words, promoting only discourse that is not divisive, per the wording of the regulation, could be where the legal violation could become unavoidable — It is, after all, the promotion of a homogenous set of ideas.

All along, DeSantis' argument for advancing SB 266 has been that curbing discourse based on race or sexual orientation and identity will allow for greater freedom of thought and expression.

Yet, Bambauer said, it does just the opposite — particularly when viewed through the lens of the new regulation.

[The Legislature's] solution goes against the very values they say they are trying to promote: open inquiry and free thinking. Latent in these regulations is the idea that talking about diversity initiatives or talking about social issues that are divisive is itself a problem, and that it's better to avoid even discussing debates about, say, whether U.S. institutions of any variety are complicit in racism or something else divisive.

The regulation, which is still in draft form, must be approved by the Board of Governors that oversees the state university system before taking effect. The board's next meeting is Nov. 8, when the public will be allowed to comment before a final vote takes place in January.

The lawsuit by New College professors and students is slated to be decided within 10 days, per the judge. If successful, it could mean that state universities are barred from enacting significant portions of SB 266.

Bambauer said that curbing thought and expression goes against academia's values.

As someone who has unorthodox views, for that very reason, I want to hear the theories that are popular today so that they can be tested and refuted. I don't want to suppress them. I want that open inquiry and debate. That's what academia is all about.