Is It Safe for Professors to Go Back to Florida? (Spoiler Alert: No. No, it is not.)

Earlier this month, a divided panel of the Eleventh Circuit surprised many people -- most definitely including me -- with a ruling that Florida-based journalist J.C. Bruce hailed in The Tropic Press with this headline: "A victory for the First Amendment: DeSantis' pet project--the Stop WOKE Act--is shredded." The Chronicle of Higher Education (CHE) offered a more muted headline: "Are 'Divisive Concepts' Laws on the Ropes?" Notwithstanding their different tones, both articles made it clear how important the Eleventh Circuit's ruling is.

The majority opinion was written by Trump appointee Britt Grant, and her language was colorful, to say the least. Bruce was obviously having a great time directly quoting the majority's handiwork, including these gems:

"Florida's salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State's own statutes recognize as centers of inquiry—classrooms where students are trusted to puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth."
"[I]n this context the First Amendment trusts students to ﬁgure it out for themselves."
"The State asks us to consider its rules a means of targeting discrimination. But hearing an idea you disagree with is not discrimination; it is an opportunity to come up with a better idea, or maybe even change your mind."
"Because the government pays the professors’ salaries, Florida says, their speech is the State’s speech. Emphatically no. The Florida defendants cannot 'put together half a donkey and half a camel, and then ride to victory on the synthetic hybrid'."
"Though the government has plenty of ways to promote its own viewpoint, puppeteering every university professor in the state is not one of them."

Longtime readers of Dorf on Law might recognize the "Stop WOKE Act" for a number of reasons. One of those reasons might be my repeated references to that law (e.g., here) as I explained why I had negotiated an early retirement deal from the University of Florida's law school only four years after I moved there as a chaired professor. The governor signed the law in 2022, and it went into effect on July 1 of that year. Even though then-Chief Judge Mark E. Walker of the federal Northern District of Florida blocked the law four and a half months later, calling it "positively dystopian," that did not stop the law from being an absolute bombshell.

Except in the most extraordinary circumstances, a bill's path to becoming a law takes months or even years to traverse, such that a law taking effect on July 1 will have been covered in the media and discussed long before its effective date. And because this particular ill-conceived law was such a key part of Florida Republicans' attack on their own university system, there was nothing secret about what was going on.

Unsurprisingly, faculty meetings in the 2021-22 academic year were dedicated to trying to determine how to respond to the governor's attempt to dictate what we taught. Administrators at the university level sent us "Guidance for teaching controversial topics" and created material with titles like "Teaching in the Era of 'Divisive Concepts.'" (Access to such resources is limited to the relevant university affiliates, of course, so even if I were inclined to share the content -- which I am not -- I would not be permitted to do so.)

Why was the law a big deal? As I explained in a Dorf on Law column in February of 2023 (early in my efforts to find an exit strategy from the Sunshine State):

[The] Stop WOKE Act," signed last year, ... treats as legal discrimination any training of students or employees that "espouses, promotes, advances, inculcates, or compels such student or employee to believe" any on a list of eight sloppy and vague categories of offense, for example:
7. A person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin or sex.

Nothing vague or overbroad there, eh? As a grimly amusing aside, note that WOKE in that bill's title is a backronym for "Wrongs to Our Kids and Employees," so DeSantis et al. were purporting to stop kids and employees from being wronged by becoming uncomfortably aware of their country's history of racism and bigotry in general. As Bruce deadpanned in his Tropic Press piece: "[I]t bears remembering that Florida is a state that still celebrates 'heroes' of the Civil War—Robert E. Lee, Jefferson Davis, and Confederate soldiers," adding the amusing non sequitur "that, under former governor and now U.S. Sen. Rick Scott, [Florida] banned the use of the phrase 'climate change.'"

It ought to be amazing that even one Eleventh Circuit judge voted to keep that law alive, but we are well beyond the point where anything can amaze. In any event, Florida's insane attempt to "puppeteer[] every university professor in the state" is dead. Yes, it could be revived by an en banc ruling or by the US Supreme Court, but let us imagine for now that the current ruling will be undisturbed and that the Stop WOKE Act is thus not merely dead but really most sincerely dead.

If so, is it safe to go back in the pool? My exit agreement includes a no-backsies requirement, but if it were possible to return, would I feel comfortable attempting to return to Florida? Should other professors feel that the death of the Stop WOKE Act is an all-clear signal?

Obviously not. For one thing, even though the law was put on ice in November 2022, professors across the state were understandably complying in advance, not only with the law itself (which might have been reinstated any day) but in response to the obvious anti-reality chill coming from the state capitol. And of course reasonable professors would do that. As I put it in my February 2023 column:

If you were teaching in Florida right now, and you cared about your job security and had been accused of violating that provision, would you reply breezily that you never said that anyone "must" feel any of those things? Again, the anti-intellectual forces are not going to go after the conservatives in the Econ department or anywhere else. This is about owning the libs -- where "owning" in this case means "having the power to take away the financial security of."
Speaking of job security, one of the moves from the state's political leaders changes the rules in a way that retains tenure in name only. Final changes to the university's regulations appear to be ready to go (if, in fact, they are not already in force) that create post-tenure review procedures for all professors every five years. Again, this is not going to be wielded against professors randomly.

Those changes did indeed go into effect, which means that professors in Florida's public universities can have, at most, tenure in name only. That professors are working under five-year renewable contracts, with spot-checks possible at any time by administrators who have been put in place by hostile Republican politicians, means that there is no way to call Florida's professors free to teach about "divisive concepts." Again, being "divisive" means "saying something about the country's past that Florida's most powerful bigots would rather people not know."

How hostile are they? The CHE piece ended with this:

[T]he DeSantis administration sharply criticized Tuesday’s decision on social media.
"This is a clear and unfortunate example of judicial overreach," DeSantis said. "The Constitution does not block us from fighting back against these ideological fads and from ensuring that our institutions stand on a solid intellectual foundation."
James Uthmeier, Florida's attorney general and a DeSantis appointee, said the majority opinion effectively declares that "public-university professors have a First Amendment right to teach white supremacy and critical race theory, and the Legislature cannot pass laws that say otherwise."
"Totally incoherent and inconsistent with the intent of the First Amendment," he added. A spokesperson for Uthmeier declined to elaborate on the attorney general's legal reasoning.

If you were trying to hold onto your job in a state where the governor and AG are willing to spout that kind of nonsense, what would you do? More importantly, what would you not do?

More broadly, CHE also added this:

Keith E. Whittington, a professor at Yale Law School who studies constitutional law and academic freedom, ... cautioned against viewing [the decision] as a death knell for classroom-content restrictions. ...
"Academic-freedom advocates shouldn't be overly optimistic about what's going to happen in the next round of this kind of litigation."
Even if the Eleventh Circuit has concluded that state legislatures cannot directly dictate what professors may say in the classroom, Whittington said, university governing boards and presidents often retain broad authority to shape curriculum and academic policy. In other words: Administrative interventions like those unfolding in Texas may present different legal questions than statutes like Florida’s "Stop WOKE Act."

I will address the insanity in Texas another time, but suffice it to say that the politicians who are taking control of the minutiae of higher education in red states across the country are not shy.

To put it more directly, these Republican politicians are relentless, and they will be messing with their universities with every fiber of their beings for as long as they are in power. Even an excellent outcome like the Eleventh Circuit's decision merely removes one medium-sized warhead from their arsenal of weapons of mass educational destruction.

- Neil H. Buchanan