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DeSantis Permitted To Gather Data On “Diversity, Equity, and Inclusion” in Public Universities, Judge Rules

DeSantis Permitted To Gather Data On “Diversity, Equity, and Inclusion” in Public Universities, Judge Rules

Looks like DeSantis is gathering info to gut the DEI bureaucracy, which could achieve the goals of The Stop Woke Act without dictating what professors can say or teach, and possibly insulating the reforms from the type of judicial injunction already granted.

Florida Governor Ron DeSantis has been at the forefront of fighting “woke” racism which comes in various flavors of Critical Race Theory, most notably Ibram Kendi’s openly discriminatory “anti-racism” and also “Diversity, Equity, and Inclusion” (DEI).

DeSantis signed The Stop Woke Act probibiting certain employment practices by private corporations, particularly the types of race-shaming tactics that have become common, as well as the training in and teaching of these race-shaming theories in public higher ed.

As announced by DeSantis in December 2021:

Today, Governor Ron DeSantis announced the Stop the Wrongs to Our Kids and Employees (W.O.K.E.) Act, a legislative proposal that will give businesses, employees, children and families tools to fight back against woke indoctrination. The Stop W.O.K.E. Act will be the strongest legislation of its kind in the nation and will take on both corporate wokeness and Critical Race Theory. Today’s proposal builds on actions Governor DeSantis has already taken to ban Critical Race Theory and the New York Times’ 1619 project in Florida’s schools. For more information about the Stop W.O.K.E. Act, click here.

“In Florida we are taking a stand against the state-sanctioned racism that is critical race theory,” said Governor Ron DeSantis. “We won’t allow Florida tax dollars to be spent teaching kids to hate our country or to hate each other. We also have a responsibility to ensure that parents have the means to vindicate their rights when it comes to enforcing state standards. Finally, we must protect Florida workers against the hostile work environment that is created when large corporations force their employees to endure CRT-inspired ‘training’ and indoctrination.”

In August 2022, Federal Judge Mark Walker in the Northern District of Florida, issued an injunction against the portion of the law that applied to private busineses, finding the law was overly broad. DeSantis vowed to appeal.

In December 2022, after a complaint and motion for preliminary injunction filed by the ACLU on behalf of university professors and students, Walker also enjoined the provisions applicable to public universities. In an opinion in the style all too common today throughout the judiciary, where judges play for the inevitable media coverage, Walker quoted George Orwell in the opening sentence:

“It was a bright cold day in April, and the clocks were striking thirteen,”1 and the powers in charge of Florida’s public university system have declared the State has unfettered authority to muzzle its professors in the name of “freedom.” To confront certain viewpoints that offend the powers that be, the State of Florida passed the so-called “Stop W.O.K.E.” Act2 in 2022—redubbed (in line with the State’s doublespeak) the “Individual Freedom Act.” The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints. Defendants argue that, under this Act, professors enjoy “academic freedom” so long as they express only those viewpoints of which the State approves.3 This is positively dystopian.4 It should go without saying that “[i]f liberty means anything at all it means the right to tell people what they do not want to hear.”5

[fn. 1 – 1 GEORGE ORWELL, 1984 at 1 (1961). In this case, Defendants’ “argument is like the thirteenth chime of   clock: you not only know it’s wrong, but it causes you to wonder about everything you heard before.” United States v. Marchena-Silvestre, 802 F.3d 196, 203 (1st Cir. 2015). Coincidentally, Governor DeSantis signed the law at issue on April 22, 2022.]

The court granted, in part, a preliminary injunction that the state “must take no steps to enforce” the contested provisions of the Stop Woke Act, specifically referencing this provision:

(4)(a) It shall constitute discrimination on the basis of race, color, national origin, or sex under this section to subject any student or employee to training or instruction that espouses, promotes, advances, inculcates, or compels such student or employee to believe any of the following concepts:

1. Members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex.
2. A person, by virtue of his or her race, color, national origin, or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
3. A person’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin, or sex.
4. Members of one race, color, national origin, or sex cannot and should not attempt to treat others without respect to race, color, national origin, or sex.
5. A person, by virtue of his or her race, color, national origin, or sex, 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, national origin, or sex.
6. A person, by virtue of his or her race, color, national origin, or sex, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
7. A person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin, or sex.
8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, national origin, or sex to oppress members of another race, color, national origin, or sex.
(b) Paragraph (a) may not be construed to prohibit discussion of the concepts listed therein as part of a larger course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts.

The State has filed with the 11th Circuit for a stay of the injunction pending appeal, to which the ACLU has responded and the State replied several days ago. So we may hear soon from the 11th Circuit if Judge Walker’s injunction continues pending appeal.

But in the meantime, as we previously reported, DeSantis has required Florida public higher education institutions to provide data on the funds and programming supporting DEI.

So, the ACLU filed a motion claiming the state request for data violated the court’s prior injunction. The State responded:

The question presented by Plaintiffs’ motion is a simple one: is providing basic information about state Universities’ diversity, equity, and inclusion (“DEI”) programs, as directed by the Governor’s December 28, 2022 Memorandum, a “step” in the “enforce[ment]” of the Individual Freedom Act or its implementing Regulation? Order Granting in Part and Denying in Part Motions for Prelim. Inj., Doc. 63 (Nov. 17, 2022) (“Prelim. Inj.”). The answer is likewise simple: merely collecting and transmitting information is not “enforcing” anything. To “enforce” a law is “to compel obedience to [it].” “Enforce,” BLACK’S LAW DICTIONARY (11th ed. 2019).

The Court in a short form order quickly found there was no violation of the injunction:

This Court has considered, without hearing, Plaintiffs’ motion to compel compliance with this Court’s preliminary injunction, ECF No. 86, and Defendants’ expedited response, ECF No. 88. Although this Court would not hesitate to compel compliance with its preliminary injunction, this Court finds there has been no violation of the injunction at this time. Accordingly, Plaintiffs’ motion, ECF No. 86, is DENIED.

The request for information did not require the institutions to do anything more than report information, though it seems obvious that DeSantis is likely to gut the DEI bureaucracies, which would seem a way to achieve part of what The Stop Woke Act was intended to do. Terminating administrative positions, or cutting funding, would not implicate — or at least not directly — the First Amendment concerns that applied to what faculty could teach.

Is the federal court really going to micro-manage the Florida state higher education budgets and tell the state it cannot cut back on the number of Assistant and Associate Deans for DEI, and various underlings in the bureaucracy? Maybe, but that’s a big stretch, much more so than telling the state it cannot dictate what professors say in class. Cutting back or eliminating the DEI bureaucracy also would be more effective than telling professors what to teach, since the DEI campus machinery reaches all aspects of student life, not just coursework.

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Comments

Anyone who still has a libertarian bone left in their body congratulations on this wake up to reality call brought to you by a judge applying exactly libertarian principles.

The idea that the state has no role regulating the public square by the way would have gotten you laughed at during the founding fathers lifetime.

Winning the court case against the new strategy of Democrat activists in robes is essential.

    henrybowman in reply to Danny. | January 16, 2023 at 2:36 am

    As usual, your flawed understanding of libertarianism is on display for all to see.
    When the State pays the instructors and funds the Universities, it has the power to regulate professors and administrators as employees. Walker enjoining the law for private entities was proper; enjoining it for public universities was not. The judiciary seems to have no problem with government control of the universities imposed by liberals, such as Title IX, Affirmative Action, and so on; to enjoin analogous regulation from the conservative side is nothing but hypocrisy.

      FrankJNatoli in reply to henrybowman. | January 16, 2023 at 7:10 am

      “Walker enjoining the law for private entities was proper”
      So the Greensboro Woolworth was legally correct, refusing service to Negroes at its lunch counter?

        henrybowman in reply to FrankJNatoli. | January 16, 2023 at 10:19 pm

        Yes.
        You wanted an answer?
        Yes. They were entirely within their rights.
        Americans have freedom of association. The American government doesn’t.
        American “civilians” are free to discriminate. The American government isn’t.
        Civil rights law turned this truism on its head — politicians “interpreting” our constitution into the opposite of what it is.
        “You gave up rights when you opened a business” is nuclear-hardened bullshit.
        Is discrimination moral? Often not. But vices are just that, vices — not crimes.
        Here’s the long form.

          henrybowman in reply to henrybowman. | January 16, 2023 at 10:42 pm

          Let me mention one other thing that is rarely pointed out.
          In Jim Crow states, white citizens weren’t “free” to racially discriminate — they were mandated by law to racially discriminate.
          When the Civil Rights Act passed, these citizens were whipsawed from a regime where it was forbidden not to discriminate, into a regime where it was forbidden to discriminate — without ever having passed through the “American constitutional zone” under which those who wanted to discriminate were free to, and those who wanted to integrate were free to.
          Jim Crow was just another face of Democrat authoritarianism.

          Evil Otto in reply to henrybowman. | January 17, 2023 at 5:47 am

          “Jim Crow was just another face of Democrat authoritarianism.”

          Don’t pretend for a moment that the Democrats in those states and cities weren’t doing EXACTLY what the people there wanted. Jim Crow wasn’t some authoritarian set of laws imposed upon the populace from above. A large majority of the citizens wanted their local and state governments to enforce laws that suppressed a minority’s rights. They voted for politicians who swore to continue it. They rioted, used violence and intimidation against black people, and cheered when the power of the state was used to enforce those laws.

          Jim Crow was the will of the people. The Federal government was exactly right in putting it down.

      1. The laws in question all involve private universities and private businesses because the idea the state has nothing to say about the public square is anarchism that would have been alien to every party of the 18th and 19th and 20th century (including the Republican Party). So even according to YOUR OWN definition the judge did the right thing according to libertarian principles.

      2. Universities have charters first that mean we will need expanded government to deal with them.

      3. State Universities often have 10% or less of their funding coming from the government. Notice those football tickets? Notice those tuitions? Notice how much cheaper community college is?

      It is because the state is not paying the operating costs of the “state” universities.

      4. The public square will be regulated it always has been in American history, it is today, and it is in places like Europe and Japan to. The only question is will we have any say over those regulations by making them come from our elected representatives or will oligarchs do it.

      I like the anti-DIE legislation that came from Florida a lot better than the way your beloved oligarchs have run the public square.

      5. Unlike you I actually have American history and tradition on my side, traditions embraced by Republicans such as Ronald Raegan who correctly pre-empted the possibility of oligarchic control over the public square and the public flow of news with regulation neutering a major part of corporate America to this day.

      You are right the the Democrats on the judiciary love state involvement when it comes from a democrat.

      It is time for us to love Republican state involvement so we could finally have a say in how our nation is actually run.

    DSHornet in reply to Danny. | January 16, 2023 at 2:59 am

    So the Marxist idea of using our own laws and Constitutional principles against us is new to you? Or do I misunderstand?
    .

      Danny in reply to DSHornet. | January 16, 2023 at 2:42 pm

      1. Could you name a libertarian principle the judge wasn’t defending which Ron DeSantis wasn’t violating?

      2. Libertarianism is not our principle.

      3. I support ditching the libertarian approach across the board. It is a failed Bush experiment as terrible in practice as his war to turn Baghdad into New York City. It was when we took up that approach that we lost ALL of the institutions.

        CommoChief in reply to Danny. | January 16, 2023 at 6:19 pm

        Danny,

        There is a flaw in your reasoning. You seem to want an all or nothing approach. Reality is far more nuanced. Smaller govt with power to trample individual and collective liberty is preferred. There is going to be a govt that performs it’s core functions. Most States have higher ed institutions as part of their State Constitution.

        Why would anyone, other than some weirdo leftist ideologue, argue that a State has no say in the curriculum offered or policies of the institutions of higher learning both public and private? Even private institutions accept public funds directly and indirectly. Receipt of those funds and their approval to operate within the State necessarily come with oversight by the State.

        Even basic things such as free speech on a private campus can’t be curtailed. Each person who steps onto that campus has individual rights under both the US and State Constitution which can’t be wished away. Where a particular institution sets conditions that serve to violate those rights they can be held to account.

        Nothing in this is in anyway a violation of libertarian principles. Libertarians don’t believe that no govt should exist or that govt shouldn’t act to protect individual and collective rights of citizens.

        henrybowman in reply to Danny. | January 16, 2023 at 10:25 pm

        You call the libertarian approach a “failed Bush experiment” and claim to have “history on your side” all the way back to Reagan.

        The Declaration and the Constitution were written by libertarians, a half century before Republicans even existed. You need to recalibrate your Wayback Machine.

Imagine an America where someone is judged by the content of their character and not the color of their skin.
Not with Democrats in power.

I can understand private business being made exempt.

My only issue with this approach is that Democrats and leftists have no issues with FORCING their beliefs, mandates, dictates upon Private Business to do their bidding. So whats the difference here?

Secondly…if you take “The Mans” money then you ABSO-F88KING-LUTELY have to pony up all of the information “The Man” demands! If DeathSantis wants to know how many piss stops you take and whether your standing or sitting then the man has a right to that information because you’ve accepted his shilling!

Dont want to comply then dont accept public money.

Simples.

    And “accept public money” needs to include tax exemptions (for endowments, for example) and also access to the proceeds of government funded loans.

    gibbie in reply to mailman. | January 16, 2023 at 1:34 pm

    I upvoted you before I saw your appellation, “DeathSantis”. What do you mean by it?

    FrankJNatoli in reply to mailman. | January 16, 2023 at 6:09 pm

    “I can understand private business being made exempt.”
    So, if a private business says “we’re not hiring any black people, starting tomorrow”, you’re OK with that?
    So, if a private business says “we’re not hiring any white people, starting tomorrow”, you’re OK with that?
    If you pull up to a McDonald’s takeout window, and they say “you can’t have your Big Mac because you’re color X”, you’re OK with that?

      henrybowman in reply to FrankJNatoli. | January 16, 2023 at 10:33 pm

      I am OK with all that, Frank, and I’m proud of it. Sorry if that blows your mind.
      Open up your mind. If you haven’t read the Cato link, read it.
      Just because the MSM has put out 60 years of “civil rights law = good” brainwashing doesn’t mean you can’t rise above it.
      Similarly, I believe anybody who takes up smoking or hard drugs is a complete idiot, but I’m not in favor of having him fined or imprisoned for it, and I would defend his right to do it.

        FrankJNatoli in reply to henrybowman. | January 17, 2023 at 6:23 am

        “I believe anybody who takes up smoking or hard drugs is a complete idiot, but I’m not in favor of having him fined or imprisoned for it, and I would defend his right to do it.”
        What was that line near the end of Godfather I?
        “In my city, we would keep the traffic in the dark people, the coloreds. They’re animals anyway, so let them lose their souls.”
        If the majority of Americans thought and voted like you and all the rest of Libertarians, the destruction of inner city black neighborhoods would be complete.
        But you’d sleep like a baby.

          CommoChief in reply to FrankJNatoli. | January 17, 2023 at 9:11 am

          The policies of the decidedly non libertarian mainstream political establishment seems to be doing a pretty thorough job of destroying the lives of a large number of folks across the Nation. Rural, suburban and urban alike.

          Prohibition is not going to succeed. The better option is individual liberty followed by unfailing enforcement of other laws. Let Joe shoot up heroin but arrest and imprison him for any other crimes he commits.

          Do not allow any excuses based on addiction or use; those are foreseeable outcomes of a choice to begin using. Do not allow the govt to fund healthcare related to drug use, charity hospitals should do so if people wish to fund those treatments.

          Stop treating adults as if they are children and let them rise or fall based upon their own choices. Private charity can step in to assist if they wish but get your hands out of the pockets of taxpayers.

    henrybowman in reply to mailman. | January 16, 2023 at 10:28 pm

    “So whats the difference here?”
    The end goal is to reduce tyranny, not to increase it.
    Although I rarely agree with arguments that “using the enemy’s tactics, you become the enemy,” I do draw the line at obvious goal contradictions like “destroying the town in order to save it.”

A 50% state tax on university endowments will get rid of all these extra bureaucracies very quickly.

The so-called “Stop Woke Act” brilliantly contains no mention of “woke”, “CRT”, “Critical Race Theory”, etc. It simply prohibits promotion of the specific “concepts” listed above which violate standard classically liberal (as opposed to leftist) values. This makes it difficult to oppose it based on “academic freedom”, and has led the media to commence a campaign of lies.

Here is an article in the leftist rag, “Orlando Sentinel” which is behind the paywall, presumably because they don’t want anyone to see it who doesn’t agree with them sufficiently to pay for access.

https://www.orlandosentinel.com/news/education/os-ne-universities-stop-woke-anti-crt-20230113-jrxsjkg7xzfglddff22om3v6s4-story.html

Here is a sample:

——
DeSantis signed the law, dubbed “Stop WOKE,” last summer banning the teaching of a once-esoteric academic concept called critical race theory in state universities, colleges, and K-12 schools. A federal court has temporarily blocked the law, which prohibits teaching students that people are “privileged or oppressed” based on their race, color, nationality or sex, with a judge describing it as a “positively dystopian” violation of professors’ First Amendment rights.

But DeSantis continued his campaign last week, appointing far-right activist Christopher Rufo to the Board of Trustees at New College of Florida. Rufo is best known for launching a national campaign against critical race theory, making the once-obscure subject into a lightning rod that has prompted protests at school boards across the country.

BierceAmbrose | January 16, 2023 at 4:35 pm

Wow. So many interesting moving parts.

ACLU — The govt enjoining people from doing something they want to, outside of govt — like cooking with gas — is one thing. The govt enjoining the govt from inflicting itself on parts of the govt is something else. The ACLU seems more about keeping the govt off the govt than off of people these days.

Who decides what? — The Hooker Test thought experiment sorts out the tangle of people doing policy or programs they agree with or don’t:

— You aren’t required to sell what they want to buy. They still get to want what they want, whether you want to sell it or not.

— They aren’t required to buy what you want to sell. You still get to want what you want, whether they want to buy it or not.

— Once there’s a deal everybody’s on the hook to deliver, and accept, the terms agreed, not other stuff on the side.

Govt staff get to advocate policy the same as the rest of us; their job isn’t a privileged position implementing their preferences as they like.

Playing well with others. — Your kink isn’t necessarily their kink, nor theirs yours. If you’re that against it, don’t take the job.

In no way is sliding into something your partner’s already declined ever acceptable. Even if you really, really (really) want it.