Legal Watch: Stopping the "Stop WOKE" Act

In June, the AAUP filed an amicus brief in Lamb v. Pernell urging the US Court of Appeals for the Eleventh Circuit to uphold a lower court order preliminarily enjoining the enforcement of Florida’s Stop Wrongs to Our Kids and Employees (“Stop WOKE”) Act. That statute, passed in 2022, prohibits faculty members at Florida’s public colleges and universities from engaging in any “instruction” that “espouses, promotes, advances, [or] inculcates” certain ideas—all concerning racial or gender-based injustice—that the state’s politicians have designated as “prohibited concepts.” Since 2021, a push to enact similar laws has made its way to statehouses across the country, with varying degrees of success. Among the bills signed into law, the Florida statute stands out as a particularly blatant political attack, not only on the ability of university faculty to teach truthfully about racial inequities but also against higher education, academic freedom, and the First Amendment.

Like many other recent efforts to restrict speech at colleges and universities, the “Stop WOKE” Act was motivated by Republican lawmakers’ desire to censor their ideological opponents and to manufacture a wedge issue for elections. It aims to impose a regime of discriminatory government censorship on every public university classroom. As such, it is an outright attack on the freedom to teach—an essential aspect of academic freedom—and also violates core First Amendment principles. The law does not simply restrict faculty speech based on its content; it also selectively prohibits the expression of disfavored viewpoints on certain topics while allowing for the full expression of opposing viewpoints on those very same topics. For instance, the law would arguably prohibit a guest speaker like Justice Sonia Sotomayor from conveying her favorable views on affirmative action while permitting opponents to freely express their contrary views. The Supreme Court has described such “viewpoint discrimination” as a particularly egregious method of regulating speech that demands exacting judicial scrutiny. If allowed to reach the university classroom, laws like the “Stop WOKE” Act will quickly undermine teaching and learning. As AAUP statements and reports ranging from the 1915 Declaration of Principles on Academic Freedom and Academic Tenure to 2007’s Freedom in the Classroom explain, distorting the instructional process to favor a particular dogma—as Florida has done in the service of an “antiwoke” ideology—turns education into indoctrination. The AAUP’s amicus brief criticizes the law in the strongest of terms and uses foundational AAUP statements, particularly the 1915 Declaration, to demonstrate how that law threatens the ideal of universities as “nonpartisan institutions of learning.”

The magnitude of governmental overreach in the “Stop WOKE” Act is reflected in the sweeping arguments Florida has made in defending the law in court. In their brief to the Eleventh Circuit, state officials assert that, because public university faculty are employed by state institutions, their speech is the government’s speech and therefore falls outside of the First Amendment’s protections under the so-called government speech doctrine. The AAUP’s amicus brief pushes back forcefully against this contention, noting that the Supreme Court’s two foundational academic freedom cases—Sweezy v. New Hampshire (1957) and Keyishian v. Board of Regents (1967)—protected faculty members against state interference with classroom instruction at state institutions. The brief also points out that no one perceives a professor’s classroom instruction as representing the government’s views.

The AAUP’s brief urges the Eleventh Circuit to reject the government speech doctrine in the context of public university instruction. The brief notes that the Supreme Court reserved the issue in its decision in Garcetti v. Ceballos (2006), and that other courts of appeals have since held, based on academic freedom concerns, that speech involving “classroom instruction” at public universities can still fall within the First Amendment’s protections. The brief then explains that the rationale behind the government speech doctrine—the notion that government programs can function only if the government is allowed to dictate the views expressed by those involved in carrying them out—does not apply to higher education. The brief relies on the AAUP’s authority as the voice of the profession and invokes AAUP statements that explain that the purpose of the university is the attainment of the common good, not the advancement of partisan interest. Government censorship of teaching actively hinders universities from achieving that mission.

The Pernell case is just the latest example of the AAUP’s commitment to advocating for academic freedom as both a legal and a professional value and to opposing recent attacks on teaching about race.

Edward Swidriski is assistant counsel at the AAUP.