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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