In 2022, the Florida Legislature passed a bill titled the Individual Freedom Act. The bill is better known as the Stop Wrongs to Our Kids and Employees Act, or the Stop WOKE Act, and it has become a cultural flashpoint across the country.
The bill seeks to “protect individual freedoms and prevent discrimination in the workplace and in public schools.” While the bill explicitly authorizes “age-appropriate” classroom discussion of topics such as sexism, slavery, and racial discrimination, it prohibits instruction meant to “indoctrinate or persuade students to a particular point of view inconsistent with the principles of individual freedom or state academic standards.” The bill went into effect on July 1, 2022, and it places new restrictions on Florida’s public schools, colleges, universities, and corporations.
Proponents of the bill argue that aspects of progressive ideology – often referred to as wokeness – are being aggressively pushed on students, parents, and employees, and the effect is tantamount to ideological oppression and indoctrination. Opponents of the bill say that the Stop WOKE Act infringes upon freedom of speech and thought. Several opponents – including prominent organizations like the ACLU and FIRE – have taken to the courts to block or pare back the bill’s influence.
Ryan Newman serves as General Counsel to Florida Governor Ron DeSantis, and he is responsible for driving Florida’s litigation defense of the Stop WOKE Act in cases such as Pernell v. Florida Board of Governors, Novoa v. Diaz, and Honeyfund.com Inc. v. DeSantis. Please join us as Ryan discusses these cases.
Ryan Newman, General Counsel, Executive Office of Florida Governor Ron DeSantis
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Sam Fendler: Hello and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I’m an assistant director of practice groups with The Federalist Society. Today we’re excited to host a litigation update on the Stop WOKE Act cases. Our guest today is Ryan Newman. Ryan is general counsel to Florida Governor Ron DeSantis. He has previously served as an attorney in the Department of Defense, Department of Justice, and as chief counsel to Senator Ted Cruz. Ryan is a former Supreme Court clerk, a West Point graduate, and a veteran of Operation Iraqi Freedom.
If you’d like to learn more about Ryan, you can see his full bio on our website, fedsoc.org. After Ryan gives his opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we’ll do our best to answer as many as we can. Finally, I’ll note that as always all expressions of opinion today are those of our guest speaker and not The Federalist Society. Ryan, thank you very much for joining us today, sir, and the floor is yours.
Ryan Newman: Great. Thanks, Sam, for having me. It’s great to participate again in another Federalist Society event. Thanks for having me. I’m excited to spend some time talking a little bit about the Stop WOKE Act and the litigation that it has spawned. As it turns out, I work for very aggressive governor, and we’re constantly sort of pushing the envelope on things. So we do generate a fair amount of litigation. But we enjoy it. We don’t feel like we’re doing our jobs if we’re not getting sued. But thanks for having me. I’m delighted to be with everyone today.
Well, I want to start by giving a little bit of background about the Stop WOKE Act before I get into the litigation. The Stop WOKE Act was intended to address a particular problem that we see in the country. And it’s an issue that we take very seriously.
My view is that our country is in the grips of a cultural revolution. Now, there’s no guillotines here. You won’t be taken out to the guillotine. It’s not that kind of revolution. But you could lose your job. You could lose your kids. You can lose your reputation as a result of this revolution. But it is a revolution nonetheless, and it’s a revolution driven by what we call woke ideology.
Now, this ideology is a product of critical theory, and critical theory has its roots in Marxism. Now, the purpose of critical theory is to understand -- or at least when it was developed in the 20s and 30s was to understand why the Marxist revolution, the revolution of the proletariat, didn’t actually happen. Marx believed that this revolution of the proletariat would be an automatic thing generated by historical forces. Well, you know, when the 30s came around, it was kind of discovered that things weren’t playing out the way that the Marxists had initially anticipated.
And so critical theorists wanted to explore the power structures in society to try to understand why it was that the working classes didn’t rise up, the revolution of the proletariat didn’t happen, and the idea was to explore those power structures in society that kept the working classes down. Critical theorists were very much focused on how society functions, the power dynamics in society, and that sort of thing. They believed at the end of the day that the Marxist belief that this evolution would happen automatically was not correct and that the only way that the revolution would happen is to actually capture the institutions of society.
Now, critical theory as it was originally understood was based on this sort of materialist account of history. But critical theory ultimately spawned a bunch of different offshoots that attempted to explain and address other areas of human concern like race and gender. And so that sort of led to over time critical race theory, radical feminist theory, gender queer theory. These are all branches and offshoots of critical theory, the original Marxist idea. These theories embrace a sort of Manichean outlook that divides society into victims and oppressors. And the goal is to identify the power structures in society, both hidden and overt, that favor the oppressors and disfavor the oppressed.
In the Marxist account, of course, the oppressors are the capitalists, and the oppressed are the working classes and labor. But in the critical race theory worldview, the oppressors are white persons, and the oppressed are racial minorities. In the radical feminist or gender theory worldview, the oppressors are men, and the oppressed are women. Or the oppressors are heterosexual persons, and the oppressed are homosexual persons. Or in the context of transgender ideology, the oppressors are non-transgender persons, and the oppressed are transgender persons. This of course spawned this notion of intersectionality which overlays all the different identities that a person may have to determine sort of where they fall in terms of society and their place in society. But the basic idea as far as woke ideology is concerned is that one becomes woke or is said to become woke upon discovering the power structures often hidden or seemingly innocuous that are believed to oppress people based on their race, sex, or sexual orientation.
Now, like many ideologies there is a kernel of truth in woke ideology. There’s no question that there were terribly unjust laws and widely embraced norms in America that discriminated against racial minorities and women. That’s just a fact. But the problem with woke ideology, like any ideology, is that it reduces every explanation for a social problem or any social phenomenon to a power struggle between the oppressors and the oppressed. And the truth is that’s absurd. Humanity is much more complex than that. Our society is much more complex than that.
Of course woke ideology doesn’t just purport to describe the workings of the world. It's not just a descriptive ideology or theory. It also has a normative component or a normative point of view as well. Adherents to this ideology believe that these power structures are bad and must be dismantled. And to dismantle the power structures requires discrimination in favor of the identified oppressed groups. And so the fundamental problem with woke ideology is that in that respect it’s conceptually, fundamentally at odds with foundational principles of our political community here in the United States, the notion that we are all created equal and that we should be judged not based on immutable characteristics but based on who we are, our character, and what we do. But because of this normative aspect, woke ideology lends itself to political activism that takes on the quality of a social or cultural revolution.
And of course this is what we’re seeing in our universities. Our universities aren’t just educating people. Increasingly they’re turning students into little revolutionaries and into activists. And of course, because this is a social or cultural revolution of sorts, no corner of society is left untouched, is left unscathed by the reach of the revolution. And so it is no surprise, then, that woke ideology has spread from its incubator in colleges and universities to virtually every other institution of society, including American corporations.
Today, every single Fortune 100 company has a so-called diversity, equity, and inclusion program. These programs often include employee training that push critical theory concepts. And I’m sure many who are watching are familiar with Chris Rufo and the work that he’s done in this area in identifying a lot of the training programs that corporations around the country have embraced.
Just to give a few examples, one company used training modules that asked their employees to circle their identities, including race, gender, sexuality, and religion, and then reflect on their privilege during the discussion. Another company used a training module called Allyship in Action, which trained employees to deconstruct their racial and sexual identities and then rank themselves on a hierarchy of power and privilege. Another company used a conscious inclusion and antiracism training model, which asked employees to list their race, ethnicity, gender, gender identity, religion, education, profession, and sexual orientation on an official company worksheet, then consider their status according to the theory of intersectionality.
Another company provided training to employees that had them categorize their identities and determine whether they have privilege or whether they are a member of a marginalized group that is underrepresented, stigmatized, or otherwise undervalued in society. Another company offered training that encouraged its employees to identify everyone’s race during conversations, including those who are white, and to listen to the experience of marginalized identities and give them the floor in meetings or on calls, even if it means silencing yourself to do so. Some companies now annually assess their managers based on diversity issues with mandatory participation in programs such as discussion groups, book clubs, mentorship programs, and race reeducation exercises. And employees were asked to sign a loyalty pledge to keep pushing for change with suggested intentions such as reading more about systemic racism and challenging others’ language that is hateful.
Examples like that in the workplace where employees are subjected to that kind of training, which is hard to understand what any of that has to do with the core mission of a lot of these corporations, is precisely what the Stop Woke Act was intended to address. We saw this at least as an opening salvo to address this increasing problem of woke ideology seeping into areas where it hadn’t traditionally resided. And so the Florida legislature enacted the Stop WOKE Act, which was known as the Stop Wrongs to Our Kids and Employees, WOKE, Act. That’s the way that it’s informally known, although the legislature called the act its formal title. It’s the Individual Freedom Act.
Now, the act applies in both the employment and educational setting. So with respect to employment, the act amends the Florida Civil Rights Act to clarify what constitutes an unlawful employment practice. Specifically, the act provides that -- and I just want to read it through so that -- because there’s a lot of nuances in the language, and I think it’s important for people to understand what the act actually says. But as applied to employers and in the employment context, the act provides “subjecting any individual as a condition of employment, membership, certification, licensing, credentialing or passing an examination to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts constitutes discrimination based on race, color, sex, or national origin under this section.”
And then the act lays out eight sort of prohibited concepts. Concept one is members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin. The second concept, an individual by virtue of his or her race, color, sex, or national origin is inherently racist, sexist, or oppressive, whether consciously or unconsciously. Concept three, an individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.
Concept four, members 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. Concept five, an individual by virtue of his or her race, color, sex, or national origin bears responsibility for or should be discriminated against or receive adverse treatment because of actions committed in the past by other members of the same race, color, sex, or national origin. Concept six, an individual by virtue of his or her race, color, sex, or national origin should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
Concept seven, an individual by virtue of his or her race, color, sex, or national origin bears responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions in which the individual played no part committed in the past by other members of the same race, color, sex, or national origin. And concept eight, such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial color blindness are racist or sexist or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.
The act goes on to say that none of those concepts may be construed to prohibit discussion of the concepts listed therein as part of a course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts. So the concepts in any sort of mandatory employment setting where employees are required to attend a training or any other sort of required activity, an employer could not advance, inculcate, promote those concepts. But the act also wanted to make very clear that the concepts could still be discussed, just so long as in the course of mandatory training the employer wasn’t actively endorsing the concept and was being objective in their presentation of the concepts.
Now, the employer provision applies both to public and private employers, and the remedies are the same remedies that anybody would have if they brought a cause of action under the Florida Civil Rights Act for discrimination on the basis of race, sex, color, or national origin. So that’s the employment piece, but there was also an education piece to the Stop WOKE Act. And with respect to the act, the act amended the Florida Educational Equity Act to prohibit training or instruction that espouses, promotes, advances, inculcates, or compels students or employees to believe the same eight concepts that I just read.
The educational provision also clarifies that the provision may not be construed to prohibit discussion of the concepts listed therein as part of a larger course of training or instruction, provided that such training or instruction is given in an objective manner without endorsement of the concepts. The educational provision applies to public primary and secondary schools, as well as public universities. It does not apply to private schools.
There are two enforcement mechanisms for the educational provision. A party who was subjected to this instruction can sue the educational institution for equitable relief. So if there was curriculum that was requiring these concepts to be, again, inculcated, advanced, not just discussed in an objective manner but forced upon the student, then a student could seek an injunction against the educational institution to prohibit that activity. But suits couldn’t be brought against an individual teacher or professor.
The second mechanism for enforcement is from the board of education which respect to primary and secondary schools and the board of governors of the university system with respect to universities. They can enforce these requirements against educational institutions that fail to take corrective action when there’s a violation of the act. So that’s how the act operates in a nutshell.
Obviously, this act generated a fair amount of controversy, and four lawsuits were launched against the state to enjoin the Stop WOKE Act. One, Honeyfund v. DeSantis, was brought by private employers challenging the employment provision. Pernell v. Florida Board of Governors of the state university system and Novoa v. Diaz were brought by university professors and students challenging the education provisions as applied to universities.
And then Falls v. DeSantis included university professors as well as secondary or primary schoolteachers who were also challenging the education provisions. That case hasn’t gone very far. Their attempt to get a preliminary injunction was denied in district court because they weren’t able to establish standing. At least in that case, as it turned out, it wasn’t easy to find plaintiffs who actually wish to inculcate the repugnant concepts prohibited by the act. And so there has been some difficulty identifying plaintiffs who would openly admit to wanting to inculcate some of these concepts with their students.
That being said, three of the cases have survived and on the merits have had some success. We haven’t as it turns out fared as well as we had hoped in the district court in these cases. All the cases have been assigned to one judge, Judge Walker, an Obama appointee in the northern district of Florida. And he has entered preliminary injunctions in the Pernell and Novoa cases, which are the challenges to the education provision, and in the Honeyfund case, which was a challenge to the employment provision.
Now, the state has appealed to the Eleventh Circuit in both cases. In the education case we sought a stay pending appeal. That’s in Pernell and Novoa. But unfortunately the motions panel, which included Judges Grant, Lagoa, and Wilson in the Eleventh Circuit, denied our stay request. But we fight on.
Each of these cases raise essentially two claims. One is that the act violates the free speech clause of the First Amendment to the U.S. Constitution as applied to the states through the Fourteenth Amendment. And the plaintiffs said -- the cases have also added on overbreadth claims, which I won’t really discuss because the court has just knocked those overbreadth claims out. The second claim is that the act violates the due process clause of the Fourteenth Amendment as unconstitutionally vague. Resolution of these claims differs slightly based on the type of case, whether the challenge is to the employment provisions versus whether the challenge is to the education provisions.
So I want to begin by discussing the employment case, the Honeyfund case. This was a suit brought by two employers and two DEI consultants. The employers claimed that they wanted to hold mandatory training on topics such as advancing women in business, understanding gender expansiveness, and understanding institutional racism. The trainings also would use terms such as dominate group, racial bias, white man’s privilege, and white man’s guilt and address topics such as institutional racism, oppression, and intersectionality.
The court found standing for both the employers and the consultants and then also went on to find that they would have a likelihood of success on the merits. The court rejected our argument that the act was a regulation of conduct, not a regulation of speech. We argued that what the act really prohibits is mandatory training where these concepts would be inculcated or forced onto the employees.
Central to this sort of line of argument was our point that, look, the corporation can advocate for all of these concepts through its advertising, involuntary training sessions, but what it couldn’t do was require its employees to sit through training sessions that would inculcate concepts like members of one race are morally superior to members of another race. But the court nevertheless rejected that argument saying that the bottom line is that the only way to determine whether the IFA, Individual Freedom Act or the Stop WOKE Act, bars a mandatory activity is to look to the viewpoint expressed at that activity, to look at the speech. The court said plainly the IFA regulates speech. The court also rejected our argument that whatever burden that was placed on speech by the act was only incidental to an otherwise permissible regulation of conduct.
Again, the focus of the act is prohibiting mandatory training. The fact that it concerns speech is just an incident to that regulation. But the court explained that the regulated conduct was not separately identifiable from the speech. The court said that it could know if the mandatory trainings were prohibited only by looking at the speech. Therefore, the act is a direct regulation of speech, subject to First Amendment scrutiny.
But as I just alluded to the employer remains from to espouse concepts publicly and through voluntary training activities. The only thing it cannot do is punish its employees for refraining or refusing to attend mandatory training where these concepts are forced upon the employees. And so it certainly strikes us as primarily a regulation of conduct along the lines of a case recently decided by the Eleventh Circuit and also led by the state of Florida in Norwegian Cruise Line where the court upheld the state’s prohibition on vaccine passports where there, again, the prohibition was on employers refusing to admit people to their premises, again, based on their refusal to provide confirmation that they had been vaccinated, again, looking to the speech. But, again, whatever impact on the speech was just incidental to the primary thrust of the regulation, which was to prevent certain conduct.
Nevertheless, Judge Walker did not buy those arguments. He also rejected our argument that at least if the court wasn’t going to find that this is not -- the First Amendment’s not implicated that it should at least apply only intermediate scrutiny because of the captive audience doctrine. Here we have a situation where the employees have no choice but to listen to these ideas on pain of discipline at work or losing their job. But the court concluded that the doctrine has only been narrowly applied and has never actually been found to apply to private employers. But in any event the court found that intermediate scrutiny still wouldn’t be appropriate because the regulation is a viewpoint restriction. It would allow endorsement of the concepts is prohibited, but opposition to the concepts is permitted. So in the court’s view the act was a viewpoint restriction, and so strict scrutiny should apply.
Finally, the court concluded that the act could not satisfy strict scrutiny. From our point of view, the purpose of the act in the end is to prevent discrimination on the basis of race and sex, discrimination that amounts to workplace harassment and would potentially already be proscribed by Title VII. The court response was even assuming this to be a valid compelling interest the court concluded that the act is not narrowly tailored. That is to say that it prohibits more than what would otherwise be permissibly prohibited under the Florida Civil Rights Act. The court acknowledged that some of the concepts if forced upon employees may be proscribable but not all of them, and so the court held that the act was not narrowly tailored.
The court also ruled in favor of the plaintiffs on their vagueness claim, finding that the concepts in the act were unconstitutionally vague. Now, our position is that, look, if you just open up a dictionary and read the definitions of the words, the concepts are actually fairly straightforward. And even the court acknowledged that at least with respect to some of the concepts they were not necessarily vague. But the court nevertheless concluded that the entire act was unconstitutionally vague and not severable because each concept was subject to the requirement or at least to the exception that it be taught in an objective manner without endorsement. According to the court, this objectivity exception was an inherently vague term which from our standpoint is somewhat odd considering that the concept of objectivity is ubiquitous in the law. But in any event, none of the concepts can be taught without in some way endorsing them, which was the conclusion that the court ultimately reached in finding that the act was unconstitutionally vague.
So that’s how things played out with the education -- I’m sorry, with the employment provisions. With respect, though, to the education provisions a challenge was brought in the Pernell and Novoa cases by university professors, as well as students, challenging those provisions of the act. Now, at the outset I just want to take issue with the court’s characterization of the act as some dystopian nightmare from Orwell’s 1984 where the state, according to the court, has declared that it has “unfettered authority to muzzle its professors in the name of freedom.”
Well, we just don’t think that’s accurate. The act comes nowhere close to exercising unfettered authority over the speech of public university professors. Recall that the act only imposes limits on instruction and training that advocates, inculcates, or espouses the eight concepts identified in the act. Professors can still discuss these concepts in a class, so long as they do so in an objective way and without endorsement. And of course, professors remain free to advocate for these concepts outside of the classroom, including as part of their research and writing activities. Nothing in the act prohibits professors from advocating these concepts in a whole panoply of contexts outside of the classroom.
Nevertheless, the court held the act to violate the free speech clause because it discriminated on the basis of viewpoint. Again, endorsement of the concepts according to the court is prohibited, but opposition to the concepts is not. The court rejected our argument that the classroom speech of public university professors is government speech not protected by the First Amendment under Garcetti. The court just flatly said, look, there’s no precedent demonstrating that the Garcetti principle should apply in this context in the university context. Instead, the court applied a balancing test under Eleventh Circuit precedent, a case called Bishop, that pertains to the speech of university professors.
The court acknowledged that the state could determine its curriculum and the content of courses, but the court distinguished that from rank viewpoint discrimination within the curriculum. So the basic idea is the state can decide what subjects it’s going to teach in its universities and the content of its courses, but it cannot restrict viewpoints within those courses.
The court also rejected the notion that the state could engage in viewpoint discrimination for the sake of prohibiting discrimination in the classroom. Our view is that advocating these concepts to students in a situation where there’s a power dynamic, whether it be the employer over the employee or the professor over the student -- that these concepts are so repugnant and so violate fundamental first principles of our society that they amount to a discrimination. But the court rejected that argument. Pointing back to its decision in Honeyfund, the court concluded that the act’s regulation of speech exceeded that state’s interest in regulating discriminatory conduct.
Finally, the court acknowledged that the academic freedom of professors as an adjunct to their free speech rights weighs against the restrictions in the act. So the court was willing to put its thumb on the scale of the plaintiffs in this case because of the academic freedom of university professors. The court said that “This court concludes that the State of Florida as an employer and educator cannot restrict university employees from expressing a disfavored viewpoint about a matter within the established curriculum while instructing on that curriculum.”
As for the vagueness claims, the court basically went the same direction as it did in Honeyfund, also finding the act to be unconstitutionally vague. While acknowledging that some of the concepts may not be vague, some certainly are. In any event, according to the court the entire statute is rendered vague because of the provisions permitting discussion of concepts if given an objective manner without endorsement. The bottom line is the court found that the very concept of objectivity is utterly ambiguous.
So that’s basically how the litigation played out. I just want to conclude real briefly with what are the stakes of these decisions. Well, in our view woke ideology poses a direct and irreconcilable challenge to a fundamental principle of the American political community, not always faithfully observed, of course, but nevertheless stretching back to the Declaration of Independence. And that is the equality of all persons, that we’re all created equal. The question raised by these cases is whether the people acting through their elected representatives have the authority to take limited measures to prevent the forced indoctrination of people in the workplace and in our public educational institutions in concepts that amount to rank discrimination on the basis of race and sex and that, if accepted by most Americans, would effectively destroy our country as we know it.
The Stop WOKE Act does not ban the eight concepts that it identifies. These ideas as pernicious and repugnant as they are will continue to exist in the marketplace of ideas. But they cannot be foisted upon employees in the workplace or imposed on impressionable students in public schools. We don’t believe that the Constitution requires the people to surrender this small degree of self-protection from an ideology that would itself destroy our political community. The Constitution is not after all a suicide pact, and the people should have the authority to gain control of their own institutions and to prevent the workplace from being exploited to impose ideas on people who just want to go about their daily lives and do their jobs. With that, I’m certainly happy to answer any questions.
Sam Fendler: We have quite a few questions from our audience. I think let’s start with you talked a little bit about how the court was going through your First Amendment claim. And it said that -- in one of these cases the court noted that they think the state does have the ability to set curriculum. You can pick topics, but you can’t necessarily pick viewpoints. I’m wondering if you could expound on Florida’s sense of how the state is involved in curriculum and what the theory is behind your cases there.
Ryan Newman: Well, we’re certainly hoping to exploit that line that we believe that Judge Walker drew. I actually thought that it was a strange line for him to draw, though. Obviously if the state has the authority to dictate an entire subject area and from our standpoint in a public university -- right, these are public institutions. These are the state students, and this is our speech. But he seemed to be fine with our ability to regulate the subject matter just so long as we were not sort of getting into the weeds of specific viewpoints.
But it could lead, I guess, to the consequence that, well, if the only what that the state can address what it believes to be a pernicious ideology in its universities is to not restrict perhaps the inculcation and advocacy of the ideology but to eliminate an entire course area, that seems like an awfully heavy handed way of addressing the problem. So it’s not something that we’re necessarily a fan of, but it might be something that we’re just forced to do in order to accomplish what we feel like we need to accomplish but in a way that will be consistent with what the court has said. Generally speaking, though, the curriculum is handled in a fairly decentralized way.
That being said, I think in a lot of ways universities are beginning to sort of lose confidence of political leadership of a state. And that’s why I think there’s a desire to centralize some more of the decision making about what’s going to be taught in universities while at the same time trying to respect the autonomy of universities and professors. So it’s a tough balancing act, but that’s something we’re certainly focusing on in this legislative session down here in Florida. And we’ll see how things play out.
But I do think that the people of the state should have and should be able to exercise authority over their own institutions. And if the institutions are becoming a purveyor of pernicious ideologies, then the political leadership ought to have the authority to do something about that. And that’s what we’re trying to do in Florida.
Sam Fendler: No question. And, Ryan, you opened up by talking about some of the background on critical theory, how this has sort of seeped into the American public, which to your estimation—and correct me if I’m wrong—the answer to that seems to be through the universities. Now, I think that it’s almost been accepted that universities will have an ideological bent. The students there are adults. But as the ideas crept lower into high schools, middle schools, elementary schools, a lot of people started to take notice.
And I think that may be what spurred action like what’s going on down in Florida. I’m wondering if you draw the distinction -- of course there’s the legal distinction. But how -- that’s more accurate -- how you draw this distinction between higher education and K to 12 education and Florida’s involvement in those two different segments of education?
Ryan Newman: Well, the Stop WOKE Act doesn’t really make a distinction between the two. That being said, in the Falls case, which is kind of stalled because the plaintiffs have had some difficulty establishing their standing, at least one or a couple of the plaintiffs I believe are teachers in primary or secondary school. And so it would be interesting to see, I guess, what a court concludes with respect to the rights of teachers in K through 12 schools.
The law does seem to recognize, or at least Eleventh Circuit precedent does -- seems to recognize perhaps some special protection for university professors. And you can pluck language from various cases, including some Supreme Court cases I believe, that suggest that perhaps professors at a university might have some special protection that a teacher in K through 12 wouldn’t, in part because universities have been historically understood to have some degree of academic freedom, at least that’s certainly what a lot of folks believe.
That being said, I’m not sure where that comes from as a constitutional matter, at least as an originalist matter. And so it’s kind of lost on me why a university professor, who is a public employee after all -- I’m not talking about professors at a private school or even teachers for that matter at a private school, but employees of the state who are paid by the taxpayers of Florida to do a job -- how they should necessarily have some special protection that a K through 12 teacher wouldn’t have. In our view at the end of the day what gets taught in a classroom is effectively government speech, and the state should be able to dictate what’s going to be taught in the classrooms.
That being said, with respect to the other activities of a professor, their research, their writing, those sorts of activities the Stop WOKE Act doesn’t touch at all nor do we have any desire to touch any of those activities. But when it comes to the instruction of students in a state school, to suggest that the people of Florida don’t have any say in that we think is just undemocratic. And it has led to a problem where these institutions are pushing out an ideology that are undermining the very foundations of our society. And so the question is whether or not the people have any authority to do anything about it through their elected representatives. And here in Florida we believe they do.
Sam Fendler: Ryan, we’re pushing up on our 1:00 deadline. I apologize for the technical difficulties that lost us some time. So I’m curious -- and forgive me if you addressed this while I was scrambling to get back on. But I’d love to hear your final thoughts on the matter, including maybe what is coming up next. You mentioned that some of these cases are in limbo, and I’m wondering what your next step is and what Florida’s going to do next.
Ryan Newman: Well, as I said, we unfortunately haven’t had as much success, at least in the district court, on these cases. And of course we suffered, I guess, a setback with respect to the Pernell and Novoa cases in our request for a stay of the district court’s injunction in the Eleventh circuit. We didn’t get the stay, which is concerning from our perspective. That being said, there may be reasons that have nothing to do necessarily with the merits that might have motivated the court to not grant our stay. The court didn’t provide any explanation for its decision to decline our request. And so both cases are being briefed up, and we look forward to oral argument in the cases. And we’ll see how it goes.
I am concerned, though. If it is the case that the political authorities of the state -- and by that I really just mean the people’s representatives at the end of the day; right? This was an act passed by the representatives of the people of Florida to address a significant concern and to regain control of their own universities. And I am a bit concerned that if you see kind of what’s coming out of the universities as a significant problem -- and I know a lot of Floridians do and I know a lot of Americans do. If you see that as a problem, then you’ve got to give the people some authority, some ability to regain control of their own institutions.
And I’m a little concerned that if we’re not able to prevail in these cases, if the First Amendment really is construed so broadly as to prevent the state legislature and the political leaders of the state from having a greater say over what’s taught in classrooms both at the university level and K through 12 -- I am worried about what tools really will we have to address the problem. Certainly hiring and firing decisions can’t then be based on ideology either. So if you can’t have some say over what’s being taught and your ability to hire and fire is similarly constrained, then how exactly are we to regain control of these institutions? I do struggle to understand how we might be able to do that at least in the immediate term. And so I fear that if we can’t prevail on some of these issues, then the problem will persist, and we’ll continue to have difficulty addressing it.
Sam Fendler: Well, Ryan, this has been incredibly enlightening, very helpful. We appreciate you stopping by and taking the time to talk to us about a whole host of things. You talked to us about what spurred the bill, some of the things that you and Florida are concerned with. And also to take the time to talk about each of these individual cases and where they are, I know that I greatly appreciated it. Our participants greatly appreciated it.
Please, again, let me apologize for my technical difficulties. To the audience as well, I apologize. But thank you very much for joining us. And please, you can check out our website, fedsoc.org, or you can follow us on all major social media platforms and stay up to date on announcements and any future events. Again, thank you all once more for tuning in, and we are adjourned.