A federal judge will hear arguments on Monday in a lawsuit filed by professors and students at New College of Florida against a new state law that attempts to squelch progressive subject matter, including “critical race theory” or gender studies, plus diversity efforts in public universities.
At issue before U.S. District Judge Mark Walker in Tallahassee will be a motion to block implementation of the law pending a ruling on the group’s constitutional challenge to it in whole or part.
Represented by an organization dubbed NCF Freedom Inc., the group alleges in a complaint filed in August that SB 266, passed earlier this year, imposes viewpoint-based discrimination against protected speech in violation of the First Amendment and is unconstitutionally vague under the Due Process Clause of the Fourth Amendment, in that it fails to sufficiently specify what behavior will draw punishment.
The complaint names as defendants Manny Diaz Jr., state commissioner of education and a member of the university system’s Board of Governors, and other top state education officials including Richard Corcoran, newly installed as president of New College with pay package worth at least $1.3 million per year.
In a reply brief filed on Sept. 29, those defendants argued the state is justified in exerting control over general education courses that university students are obliged to take.
“This case is ultimately not a fight about academic freedom versus orthodoxy over the classroom. This is a fight over who controls the curriculum at public universities — professors or the public bodies who fund and govern public universities and who are ultimately accountable to the voters,” the state’s Sept. 29, 98-page brief argue.
“The case law and common sense hold that universities control their own curriculum. But plaintiffs want to usurp that authority and claim an unprecedented right to teach whatever they want in any course they want.”
SB 266
The law in question, SB 266, championed by Gov. Ron DeSantis, made sweeping changes to higher education governance in Florida, including blocking state or federal funds for diversity initiatives (sometimes referred to as DEI, for “diversity, equity and inclusion”) or application of critical race theory. The measure also specifies that university presidents have the last word on personnel matters, abrogating the professor’s employment contracts’ arbitration option.
In addition, the law references certain language used in undergraduate courses: “General education core courses may not distort significant historical events or include a curriculum that teaches identity politics … or is based on theories that systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States and were created to maintain social, political, and economic inequities.”
SB 266 followed passage of the “Stop WOKE,” or “Individual Freedom,” Act in 2022 to restrict conversations about race and gender in schools and workplaces. Judge Walker, who also heard that case, found that law unconstitutional in August 2022.
The lawsuit implicates SB 266’s application throughout the university system but centers on New College, a public, small honors institution in Sarasota formerly known as a beacon of progressivism. DeSantis is turning the institution into “a Hillsdale of the South,” referring to the private Christian Hillsdale College in Michigan.
As Salon reported of “citadel of conservatism” Hillsdale last year, “Its campus features prominent statues of Ronald Reagan and Margaret Thatcher, its curriculum leans heavily into the Western canon of ‘Great Books,’ and it describes itself as ‘a trustee of modern man’s intellectual and spiritual inheritance from the Judeo-Christian faith and Greco-Roman culture.’”
DeSantis ousted the sitting board members and replaced them with conservative activists including Christopher Rufo, who was behind the anti-CRT (critical race theory) movement. The governor’s board and Corcoran are even promoting intercollegiate athletics as a draw for conservative students.
The lawsuit argues the law is overbroad and “has a strong likelihood of deterring speech which is not properly subject to the law including discussion of almost all controversial historical, political, and social topics, many of which are vital to the unimpeded flow of ideas in a free society.”
The complaint also targets new restrictions on tenure protection for faculty, arguing the law will chill free inquiry plus classroom instruction and debate between students in class. The United Faculty of Florida, which represents university faculty, filed a separate 35-page complaint on Aug. 4 in state circuit court in Leon County over the tenure restrictions.
‘New, controversial theories’
The professor-and-student plaintiffs complained in their lawsuit that SB 266 is interfering with their right to teach and study important social problems, including systemic racism and the role gender differences play in society. CRT, for example, is an academic study of manifest institutional racism in America, including residential redlining, segregation, and voting restrictions.
As far as the state’s brief in the NCF Florida case is concerned, these represent “new, controversial theories.”
“As relevant here, SB 266 regulates curriculum, not day-to-day classroom speech. In other words, the university is charged with ensuring that certain core classes are not approved if they would include the divisive and/or discriminatory content prohibited by the statute; but plaintiffs remain free to express or receive those viewpoints in other classes,” it reads.
“The control over classes is quintessentially the university’s authority. As such, plaintiffs do not experience any injury under the First Amendment by having to direct certain viewpoints toward upper-level classes,” it adds.
This article originally appeared in florida phoenix