Who Controls the Curriculum in Florida?

For academic freedom’s advocates, there is much to like about the recent federal court ruling prohibiting Florida’s board of governors from enforcing the Individual Freedom Act. Especially gratifying are the rhetorical tropes Judge Mark Walker deploys in justifying this preliminary injunction. When the legislature adopted what Governor Ron DeSantis dubbed the Stop W.O.K.E. Act, Walker writes, it effectively embraced the “dystopia” depicted by George Orwell in 1984. Under the banner of freedom from discrimination, that body has now anointed itself a “Ministry of Truth” and, that done, asserted its authority to determine “which viewpoints shall be orthodox [for example, America’s fidelity to equality under the law] and which shall be verboten [for example, the reality of structural racism] in its university classrooms.” The practice of “extravagant doublespeak,” Walker concludes, is alive and well in Tallahassee.

In two earlier blog entries, I argued that the Stop W.O.K.E. Act is one element of a much larger project designed to secure unilateral control over Florida’s public education system, including its colleges and universities, in the service of a right-wing agenda. Here, I extend that argument but suggest that what Judge Walker represents as a ruling in favor of academic freedom in fact justifies the state’s authority to encroach on that same freedom. Walker thereby intimates the structural reforms that are essential if the university is to prove a sustainable home for the unfettered inquiry that is its mission.

The First Amendment’s free speech protections apply to public universities and colleges, despite their being state entities. That guarantee inheres in the Supreme Court’s affirmation of the principle of academic freedom in Sweezy v. New Hampshire (1957), Walker explains. This freedom, however, is not “an independent constitutional right” but an “adjunct” of the Constitution’s speech provisions. As such, governments can sometimes impose restrictions on state colleges and universities that would not withstand judicial scrutiny if applied to citizens generally.

To determine when such impositions are permissible, the Eleventh Circuit adopted a balancing test that weighs the academic freedom interests of professors against the state’s interest in regulating faculty speech. Application of this test leads Walker to conclude that the plaintiffs in Pernell v. Florida Board of Governors are likely to succeed on the merits and hence enforcement of Stop W.O.K.E. must now halt.

This conclusion, Walker insists, does not deny the state’s authority to prescribe curricular content: “Of course, the State has a say in which courses are taught at its public universities” and, by implication, what courses they may not offer. As Justice Hugo Black explained in Epperson v. Arkansas (1968), “It would be difficult to make a First Amendment case out of a state law eliminating the subject of higher mathematics, or astronomy, or biology from its curriculum.” However, once the state has authorized instruction regarding these topics, whether tacitly or explicitly, it cannot then require faculty to adopt the specific viewpoint it favors about these subjects. That, though, is precisely what the legislature has done through the Individual Freedom Act’s prohibition of instruction that may persuade students to endorse any of the eight “concepts” regarding race and gender it proscribes (for example, the belief that privilege is an unearned benefit of whiteness).