Pernell v. Lamb, No. 22-13992 (11th Cir. 2023)

On June 23, 2023, the AAUP filed an amicus brief in the United States Court of Appeals for the Eleventh Circuit in support of Florida faculty who are challenging the state’s “Stop WOKE" Act. That law, passed in 2022 and formally known as the Individual Freedom Act, prohibits professors at Florida’s public universities from expressing certain disfavored viewpoints while teaching on topics including those involving racial and sexual discrimination and injustice. The AAUP’s brief argues that the law violates the First Amendment and threatens to destroy academic freedom, sabotage higher education, and undermine democracy.

Enacted in 2022, the Individual Freedom Act (IFA) prohibits faculty at Florida’s public colleges and universities from engaging in “instruction” that “espouses, promotes, advances, inculcates, or compels . . . student[s] or employee[s] to believe” eight concepts involving racial and sexual discrimination and injustice. The IFA is one of the most egregious attempts ever undertaken by politicians to restrict the freedom of faculty to teach, and of students to learn, in the university classroom. By selectively censoring specific viewpoints about racial and sexual inequities that Florida’s current politicians disfavor—while at the same time permitting the expression of opposing viewpoints—the law seeks to suppress genuine discussions about vitally important issues currently facing this country. With the assistance of the American Civil Liberties Union, several professors and a university student filed suit against the law for violating the First Amendment and other constitutional provisions. In a compelling and strongly worded decision issued last November, a federal district court granted a preliminary injunction prohibiting officials from enforcing key provisions of the statute. The officials then appealed to the Eleventh Circuit.  

The AAUP’s amicus brief, which urges the Eleventh Circuit to affirm the district court’s preliminary injunction, consists of two main parts. The first part argues that the IFA violates the First Amendment and explains that if the law is allowed to go into effect, it will destroy academic freedom, sabotage higher education, and undermine democracy. Building on key Supreme Court precedents and important AAUP statements, including the 1915 Declaration of Principles on Academic Freedom and Academic Tenure and the 1940 Statement of Principles on Academic Freedom and Tenure, the brief argues that allowing politicians to ban the expression of viewpoints they dislike from the university classroom is antithetical to academic freedom, which the Supreme Court has long recognized to be “a special concern of the First Amendment.” As the brief states, “An essential aspect of academic freedom is the freedom of college and university faculty to teach a given subject without the government invading the classroom to suppress the expression of certain viewpoints.” If allowed to go into effect, the IFA would destroy academic freedom in Florida and would turn its universities from places where ideas are freely discussed and evaluated into “proprietary institutions” where professors are severely restricted in their teaching and students are indoctrinated with government-approved opinions. Stressing that “academic freedom is a non-partisan value that protects classroom instruction regardless of the ideological viewpoint of the ideas being discussed,” the brief explains that while the IFA targets so-called “woke” ideas, a decision allowing it to stand would allow state politicians to censor any shade of opinion or thought they pleased, with disastrous consequences for higher education and democracy. “Higher education would be liable to devolving into a political free-for-all” in which politicians exploit public universities for their own partisan ends.

The second part of the AAUP’s brief focuses on rebutting the state of Florida’s radical claim that “classroom instruction in public universities is government speech and thus not entitled to First Amendment protection.” As the brief explains, far from allowing state governments to co-opt public universities to serve as their partisan mouthpieces, legal precedents require adherence to academic freedom. Florida’s assertion that the IFA does not have to comply with the First Amendment relies on the Supreme Court’s 2006 decision in Garcetti v. Ceballos and the “government speech doctrine.” In Garcetti, the court held that when public employees speak “pursuant to their official duties,” their speech is not protected by the First Amendment and is therefore subject to discipline by their government employer. The government speech doctrine is a legal principle stating that the First Amendment restricts the government’s ability to regulate private speech but does not restrict the government when it is speaking for itself.

The AAUP’s brief urges the Eleventh Circuit to join other federal courts of appeals in holding that Garcetti does not extend to university-level teaching and research, noting that the Supreme Court itself explicitly recognized that its holding may not apply to scholarship and teaching due to the importance of academic freedom “as a constitutional value.” In addition, the brief explains that both Garcetti and the government speech doctrine are based on the notion that the state must be able to control its employees’ speech for government programs to function at all—a rationale that does not apply to higher education. Colleges and universities require exactly the opposite: they require academic freedom and cannot function if the government is allowed to control the viewpoints expressed by faculty in the classroom. Applying well-established legal principles, the brief proceeds to demonstrate that the speech prohibited by the IFA involves “matters of public concern” and that the interest of faculty in being free to speak on those matters overwhelmingly outweighs the state’s desire to dictate viewpoints expressed in the classroom. Finally, the brief refutes the state’s assertion that classroom instruction is “government speech,” stressing that the general public does not understand professors to be speaking for the state when they are teaching and that university-level teaching has long been recognized as being off-limits to the sort of control imposed by the IFA.