Florida’s Stop Woke Act has been blocked by a federal judge—again. The law championed by Governor Ron DeSantis suffered yet another setback in Pernell v. Lamb, when a federal appeals court affirmed the district ruling that enjoined the Individual Freedom Act, aka, the “Stop W.O.K.E. Act.”
DeSantis was at the forefront of the battle against DEI and critical race theory in schools and the workplace. But the law he backed was beset by legal challenges shortly after it passed in April 2022.
As Professor Jacobson explained, the Florida Act targeted certain employment practices by private corporations, particularly race-shaming tactics that have become common, as well as the training in and teaching of these race-shaming theories in public higher ed.
The law makes it an act of discrimination “on the basis of race, color, national origin, or sex” to subject any student or employee to “training” or “instruction” that “espouses, promotes, advances, inculcates, or compels” belief in any of eight concepts, including:
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.
In the education setting, the law applies to K-12 (not challenged in this case) and universities. Professors who fail to comply face unspecified “disciplinary measures” and potential termination.
Several professors and students sued to block the law on the grounds that it violates their First Amendment rights by suppressing politically disfavored viewpoints. The district court granted a preliminary injunction in November 2022. The 11th Circuit upheld it in a short-form order that Professor Jacobson also covered here.
Now, a divided 11th Circuit panel (2-1) has affirmed the district court’s preliminary injunction blocking enforcement of the higher-education provisions of the Act. Judge Britt Grant (Trump appointee) wrote for the majority, joined by Judge Charles Wilson (Clinton appointee); Judge Barbara Lagoa (Trump appointee) dissented.
The panel held that the Act’s restrictions on professors’ speech about race, sex, and national origin violate the First Amendment. “If the First Amendment offers any boundary of protection at all for public university classrooms,” Judge Grant wrote, “this statute crosses it.”
“The Act is a wide-ranging, ex ante restriction on the speech of every public university professor in the state,” Grant continued.
Judge Lagoa pushed back. She said the majority’s reasoning “glossed over the classroom reality”: “[A] professor’s words do not operate in a vacuum; they carry a ‘coercive effect’ because the professor maintains authority over the students’ grades.” It also defies legal precedent: the state retains authority, she concluded, to “restrict a professor’s viewpoint in a public classroom, even if the professor’s viewpoint represents his professional opinion.”
Florida Attorney General James Uthmeier doubled down, calling the majority opinion “totally incoherent and inconsistent with the intent of the First Amendment”:
The AG has not announced whether the state will appeal the court’s decision. Florida’s remaining options are to seek rehearing en banc before the full 11th Circuit or petition the Supreme Court for review. Either path faces long odds, especially given the circuit court’s own legal precedent.
This is not the first time the appeals court has found the Florida Act unconstitutional. In Honeyfund.com Inc. v. Governor, the 11th Circuit held an analogous provision—one barring mandatory workplace meetings that endorsed these same eight concepts on race, sex, and national origin—enforced unconstitutional viewpoint discrimination.
In both the education and workplace provisions, the Pernell panel concluded, quoting its own language from Honeyfund, “speech is not regulated incidentally as a means of restricting discriminatory conduct—restricting speech is the point of the law.”
Rather than face another likely loss in court, Florida might do better against the woke educational bureaucracy by simply gutting it. Professor Jacobson predicted as much back in 2023, when DeSantis moved to defund DEI offices and positions rather than regulate classroom speech outright—a pivot that “would not implicate—at least not directly—the First Amendment concerns” that have now sunk the Act twice at the circuit level.
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