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Judge weighs higher education restrictions

Students walk outside of the Marston Science Library on campus at the University of Florida in Gainesville on Wednesday, September 22, 2021. (Rachael Gregory/Fresh Take Florida)
Students walk outside of the Marston Science Library on campus at the University of Florida in Gainesville on Wednesday, September 22, 2021. (Rachael Gregory/Fresh Take Florida)

A federal judge heard arguments Monday in a challenge to a new state law that prohibits instruction on certain topics in “general education core courses” at state colleges and universities.

The challenge, filed by the group NCF Freedom, Inc. and several New College of Florida professors and students, seeks to block higher-education officials from enforcing parts of the law.

But lawyers for the New College Board of Trustees and the state university system’s Board of Governors told Chief U.S. District Judge Mark Walker that the plaintiffs lack legal “standing” to challenge the law and that the issue isn’t “ripe” for consideration by the court.

The plaintiffs are “trying to connect dots too far,” attorney Bill Galvano, a former state Senate president who represents New College’s trustees, said.

Under the law, core curriculum courses “may not distort significant historical events,” include curricula that teach “identity politics” or violate a separate law that restricts the way certain race-related topics can be taught.

The new law also prohibits curricula “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.”

Under the measure, schools that offer courses that do not comply with those parts of the law would not be eligible to receive what is known as performance-based funding. Such funding can total tens of millions of dollars for some universities.

Restrictions in the law would strip away numerous course offerings from New College students, according to the plaintiffs, who allege that the law infringes on professors’ speech rights.

But Galvano argued that the law is focused on “programs” offered by state universities, not on what professors are allowed to say inside classrooms.

The law doesn’t say, “If you teach this, you will be disciplined,” Galvano argued.

Galvano also said the lawsuit is “premature” because university officials haven’t created regulations to carry out the law.

“It’s not ripe, and I don’t believe we have a concrete issue before you,” he told Walker.

Jason Gonzalez, an attorney who represents the university system’s Board of Governors, said the law doesn’t restrict instruction in elective courses. But Walker pressed him on the issue.

“When does it stop being curriculum and when does it start regulating viewpoint, when you get into the nitty gritty about what you can talk about or can’t talk about, as it relates to specific issues in history, for example?” the judge asked.

Gonzalez, reading from the law, said professors can teach about “historic events,” as long as they do not “distort” the facts.

But Walker pushed back.

“It seems to me in this state and this country right now, we can't agree on some of the most basic issues related to history or political science. … This idea, to say you can’t distort, is it really that simple?” the judge asked.

The judge pointed to the movie “Gone with the Wind” as the “classic example” of “pop culture adopting or fueling … a false narrative” about history.

“Where does distortion stop and start? I don’t think it’s that simple,” he said.

Gonzalez said professors can “say whatever they want” in elective courses.

“There’s no proscribed speech here,” he said, adding that the law “doesn’t outlaw a single course.”

The judge repeatedly asked lawyers on both sides to point to evidence in the court record showing professors would be punished if they violate the law.

“What’s the evidence … to show their fear is reasonable?” Walker asked Gary Edinger, who represents the plaintiffs.

“Let's get to the nub of it, counsel. ... We're fast approaching the day where we're becoming the movie ‘Idiocracy,’” the judge said. “What’s in the record that would suggest that it’s objectively reasonable to believe … that the folks … are going to be told what they can and cannot teach or they’re going to have to change … or they’re going to be disciplined?”

New College professors “are currently self-censoring” and have changed their course syllabi, Edinger responded. Professors who violate the law and cause their universities to lose funds could also lose tenure, he added.

The “schizophrenic hybrid statute” is unconstitutionally vague, and it’s not too soon for the court to consider what is known as a “pre-enforcement” challenge to the law, Edinger said.

“We feel it is appropriate to … take a look at the law and see how it stacks up against the Constitution,” he told Walker.

The judge said he expects to issue an order within 10 days on a request by the plaintiffs for a preliminary injunction to block parts of the law.

The 2023 law built on a controversial law 2022 statute that restricted the way race-related concepts can be taught in higher education. The 2022 law, dubbed the “Stop Wrongs To Our Kids and Employees Act,” or “Stop WOKE Act,” allowed universities to fire instructors who violate restrictions and gave permission to the Board of Governors to withhold performance funding from schools that do not correct instruction that violates the law.

Opponents challenged the 2022 law, which was a priority of Gov. Ron DeSantis, and Walker issued a preliminary injunction blocking state officials from enforcing it. The 11th U.S. Circuit Court of Appeals is slated to hear arguments in the state’s appeal of Walker’s order in late January.

Speaking to reporters outside the federal courthouse after Monday’s hearing, Edinger said Walker was grappling with the law, which may have been crafted to prevent challenges.

“I think what he was wrestling with here is that the kind of statute we have here, where it has things that would obviously violate the Constitution. The judge seemed to take that for granted and I didn't hear a whole lot of defense from the state that these laws are actually constitutional. The issue is, can anyone sue? So we've put together plaintiffs in this suit that are the perfect plaintiffs. They are a variety of students, (an) organization, professors. They teach classes which are clearly affected by the statute, and yet, maybe no one will be able to sue. So that is most of what our argument was about today. Is it possible for a plaintiff to challenge the statute and do we have to wait until someone is actually disciplined as opposed?” he said.

Sarah Hernandez, a New College sociology professor who is a plaintiff, said she’s teaching intermediate courses but worries that she might be disciplined for violating the law.

“I teach what I usually have taught. But that is at the risk that I just might not have my job, I don't know, next year, the year after, who knows?” she said.

Hernandez said she informs students that what she is teaching “may be in fact considered illegal in the state of Florida,” under the new laws.

“This is something I've never had to tell them before. And it's something they need to be aware of. Here's the impact,” she said.

The News Service of Florida is a wire service to which WUFT News subscribes.