Why is Florida the only state to pass a full-on ‘curricula ban’?
Florida Gov. Ron DeSantis has made the legislation a centerpiece of his self-proclaimed “war on woke.”
When progressive Stanford Law students shouted down a conservative speaker on campus in March, one observer argued that they had walked into a trap.
The Stanford students “played their role in the conservative pantomime perfectly,” wrote Ken White, a lawyer who goes by Popehat on social media.
“The protesters' ‘we get to say who talks and who listens’ reception at Stanford will be hot-burning fuel in the right-wing engine that seeks to use the force of law to restrict expression on college campuses to suit conservative tastes.”
Censorship, in other words, begets more censorship.
State legislatures have significant power to shape what can and cannot be taught in K-12 public schools. But when it comes to universities, groups like the Foundation for Individual Rights in Education are fighting against legislation that they believe would violate constitutional protections.
So far, only one state — Florida — has actually passed legislation that FIRE considers to be a “curricula ban.” FIRE defines a curricula ban as “provisions that prohibit certain topics or ideas from being taught in college classrooms.”
“Of all the states that have considered curricular bans in the last few years, just one state enacted it,” John Coleman, legislative counsel for FIRE, told Yahoo News. “And we opposed that bill when it was before the Legislature.”
The law would ban “‘instruction’ on eight specific ‘concepts’ related to ‘race, color, national origin, or sex’ that may run counter to government officials’ notions of ‘freedom.’”
And Florida Gov. Ron DeSantis has made the legislation a centerpiece of his self-proclaimed “war on woke,” a phrase the likely GOP presidential candidate uses in speeches such as his recent address at Liberty University.
But litigation by FIRE and other groups has so far halted the Florida law — otherwise known as the “Stop WOKE Act” — in the courts.
Last fall, U.S. District Judge Mark Walker issued a temporary injunction against portions of the law that affect public universities in Florida. Walker ruled that the law “officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints.”
If “liberty means anything at all, it means the right to tell people what they do not want to hear,” the judge wrote.
DeSantis spokesman Bryan Griffin told Yahoo News that the Florida law “is designed to prohibit forced indoctrination.”
But the legislation, while it prohibits anything that “compels [an] individual to believe” something, also forbids state employees such as a university professor from “subjecting any individual ... to training, instruction, or any other required activity that espouses, promotes, advances” any of the forbidden ideas detailed by the state.
Griffin told Yahoo News that the ideas outlined by the state “are designed to force individuals to believe something” and are “delivered by individuals with authority or influence over others (employers over employees, teachers over students). That means this isn’t a peer-to-peer discussion or public discourse, but it is coming from someone with power over another and all of the associated leverages of their position.”
FIRE attorney Adam Steinbaugh told Yahoo News that this interpretation is “infantilizing.”
“We’re talking about adults who are going into class to encounter ideas they may disagree with because that’s how you learn to disagree with those ideas,” Steinbaugh said. “Students are able to come to their own conclusions. ... A university can very well deal with a faculty member who imposes some sort of coercive control over a student’s work. But outlawing ideas is not the way to do that.”
In all other states where legislatures have considered laws to restrict what public universities can teach on subjects like racism, history, sexuality and other topics, Coleman said, the final bills were amended.
“Other than Florida’s Stop WOKE Act, FIRE did not oppose the final versions of the so-called divisive concepts bills that were ultimately enacted, but did seek to amend earlier drafts when those versions would have instituted curricular bans in public institutions of higher education,” Coleman said.
The NAACP Legal Defense and Educational Fund and the American Civil Liberties Union also filed suits against the Florida legislation, but FIRE’s suit was different.
“FIRE’s suit is limited to higher education and does not take a position on the truth of the prohibited concepts of race and sex. Rather, FIRE takes the viewpoint-neutral approach that faculty retain the right to give an opinion — whether that opinion supports or opposes the prohibited concepts in the Stop WOKE Act,” the organization said.
The number of attempts by state legislatures to impede academic freedom in universities has skyrocketed since the summer of 2020, when racial justice protests took place across the country in response to the murder of George Floyd by a Minneapolis police officer. Those protests also sparked a higher level of discussion and interest about systemic racism nationwide, which filtered into many different parts of American life, from education to corporate culture to police reform.
“It has been decades since there was any question about the constitutionality of government bans on what can and can’t be taught in college classrooms,” Coleman said.
The Supreme Court ruled on the issue in the 1950s and 60s in cases where government officials sought to curtail the freedoms of “subversive” left-wing professors. The high court’s resulting decisions reaffirmed the free speech rights of academics.
However, a 2006 Supreme Court ruling in Garcetti vs. Ceballos has muddied the waters to some degree, “holding that a public employee’s on-the-job speech was not protected because it occurred in the workplace,” FIRE summarized.
The Garcetti decision “strips some 20 million public employees of their First Amendment rights when they clock in,” FIRE argues, and the court has indicated it might not apply to university faculty, but has not decisively settled the issue.
Recent attempts to crack down on academic freedom in universities has been a feature almost entirely of conservative Republican state legislatures. But attempts to censure professors or have them fired for objectionable speech have also ticked up since the Floyd murder in 2020, and that dynamic has involved “cancellation” attempts from both the left and right.
The “curricula bans,” meanwhile, have their roots in an executive order issued in September 2020 by then-President Donald Trump. The order “banned certain types of diversity training in federal agencies and included a list of ideas deemed ‘divisive,’” according to Education Week.
For example, it banned the discussion in federal agencies of any ideas “rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans.”
The specific list of “divisive concepts” outlined in Trump’s order has been the inspiration for many of the laws drafted in state legislatures, Coleman said. “States have borrowed from that language,” he said. “They’re often called anti-[critical race theory] bills but often the language comes in the form of divisive concepts. It’s a broad umbrella.”
Coleman said that in several states, such as Tennessee, Idaho, South Dakota, Oklahoma and New Hampshire, laws were introduced and passed along these lines. But Coleman said that these bills were amended and watered down before becoming law to alleviate the concerns of civil libertarians.
“There has been some confusion on the ground as to some of the bills’ application to classroom teaching,” Coleman said. “Neither the Idaho or the Oklahoma laws imposed bans on what could be taught in college classrooms, but there were incidents in both states where administrators improperly paused course offerings while they evaluated their obligations under those laws.”
The Florida law is unique in its attempt to explicitly censor professors, according to FIRE. Steinbaugh said the law would mean that “if a faculty member permits a guest speaker to endorse affirmative action (one of the prohibited concepts, as Florida’s lawyers conceded in federal court), or reads from an essay making that argument, they risk not only their job, but millions of dollars in annual state funding.”
While conservatives might welcome that scenario, Steinbaugh said that proponents of the Florida law “are unwittingly arming their enemies.”
“Granting campus censors (high or petty) expanded authority will only reinforce campus orthodoxy — or, at best, trade one orthodoxy for another. Officials given more authority will wield it against unpopular speech, which conservatives will be unsurprised to learn often means suppressing conservative-minded speakers.”
“Free speech advocates have long — and correctly — responded that students should expect to encounter views, speakers and faculty they find disdainful,” Steinbaugh said.
In fact, this is exactly what Stanford Law School Dean Jenny Martinez said in her memo rebuking the progressive students who shouted down conservative federal Judge Kyle Duncan.
“The mission of the university is the discovery, improvement and dissemination of knowledge,” Martinez wrote. “To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community.”
Yet despite the halting of the Stop WOKE Act in federal court, legislators in multiple states have continued to propose similar provisions this year.
And DeSantis and Florida Republicans are pushing ahead with another piece of legislation that would, according to FIRE’s summary, “eliminate ‘any major or minor’ that ‘engenders beliefs in the concepts defined’ in the unconstitutional Stop WOKE Act, as well as any ‘major or minor in Critical Race Theory, Gender Studies, or Intersectionality,’ or any ‘derivative major or minor of these belief systems.’”