Excerpted From: Emerson Sykes, “Free Speech, Academic Freedom, and Racial Justice on Campus: An ACLU Lawyer's Perspective”, 20 Hastings Race and Poverty Law Journal 3 (Winter, 2023) (15 Footnotes) (Full Document)

EmersonSykes[. . .]

Now, some breaking news. In the last couple of weeks, we at the ACLU's National Office, along with the ACLU of Florida, the NAACP Legal Defense Fund, and pro bono counsel at Ballard Spahr have sued to stop the enforcement of Florida's Stop W.O.K.E. Act. Ron DeSantis, the governor of Florida, has championed a few different laws, including the “Don't Say Gay” law, that weigh in on culture war issues and one of them is the Stop W.O.K.E. Act. Governor DeSantis literally said, “We want a woke-free state of Florida.”

I hesitate to start the conversation with Ron DeSantis, though, because I think it's important where we begin the story. Discussions around how we think about and talk about our history as a country in public schools is a debate that has been with us since the founding of our country. There's nothing really new about arguing about what our history is, and who our heroes are, and what kinds of stories can be told to our children. For generations, we had a white-washed history in our schools. Over the last few decades, there's been significant progress in trying to present a more inclusive and representative curriculum in our schools. What we're seeing now is the backlash to that progress.

It's no coincidence that at the ACLU, our free speech team spent about a year and a half doing nothing but defending racial justice protesters and we have spent the last year and a half working on these anti inclusive education bills. In the wake of the 2020 national reckoning with how we think about and talk about race in this country, we've seen these efforts to squash that conversation and to prohibit certain viewpoints from being shared.

Now, a bit more about our lawsuit. The Stop W.O.K.E. Act includes eight prohibited concepts which are lifted directly from President Trump's Executive Order 13950 that was blocked by a federal court because it was too vague. The Executive Order was also withdrawn by President Biden, but nonetheless, it's gone on to live a thousand lives because it's been cut and pasted into hundreds of policies and state bills around the country.

This list of eight so-called “divisive concepts” is interesting because some of them are seemingly innocuous. The first concept is that you're not allowed to teach that one race or sex is inherently morally superior to another. No one was really teaching that to begin with, so banning it doesn't really stifle anyone's speech in particular, but it's still kind of strange.

Some of the concepts are nonsensical. My favorite is there's one that says that you're not allowed to teach, that anyone “cannot or should not attempt to treat others without respect to race, sex, gender and national origin.” A judge--actually our judge--in Florida recently ruled that the same provision in the employment context, “achieved the rare triple negative.” So, some of these concepts on their face are ungrammatical and unconstitutionally vague.

There is another category of these concepts, though, that directly target topics of public debate. For example, you're not allowed to teach that meritocracy, objectivity, or colorblindness are racist or sexist concepts. Of course, people might not agree with the idea that colorblindness is racist, but I know that there are multiple professors in this very law school who believe and teach based on mountains of research and evidence that colorblindness can be racist. But in Florida, it's a violation of the law to teach that colorblindness can be a racist concept, and that's on penalty of termination, on penalty of individual lawsuits being filed against you through this law and on penalty of the withdrawal of state funding for your public institution of higher education.

Another banned concept is that you're not allowed to teach that anyone has specific status or privilege based on their race or sex. So, you're not allowed to teach the idea that there is such a thing as white privilege. Again, that's a topic of public debate. Some people might think that there's no such thing. But the Stop W.O.K.E. Act says that you're allowed to criticize the idea that white privilege exists, but you're not allowed to promote it.

There's another clause that says that the banned concepts can be discussed, but they must be discussed in an “objective way and without endorsement.” But what does that really mean? This was actually an attempt to cover some of the loopholes in earlier versions of these laws. We filed the first federal lawsuit challenging one of these statewide laws in Oklahoma last year and that law included almost the same list of divisive concepts. That law, though only applied the concepts to K-12 schools and said you could not make any of these concepts a “part of a course,” which we argued meant that you're not even allowed to mention them. The Florida legislature attempted to cover their behinds a little bit in this regard and said, of course, you can discuss these topics but they have to be covered in an objective way and without endorsement. But we argue this phrase does not cure all of the other problems with the law, and actually makes the whole thing more confusing.

They also threw in a nice little nugget where there's mandatory black history curricula also, insulating themselves further from the argument that they are prohibiting all talk about racism, which we argued the Oklahoma law did. But what's unique about the Stop Work Act, despite these efforts to sort of cover some of the loopholes, is that it applies the eight prohibited concepts to higher education. These are purely viewpoint-based restrictions on academic freedom in higher education, and that's unconstitutional.

We sued on behalf of seven professors and a student. Our lead our lead plaintiff is Professor Leroy Purnell, who's a Florida A&M University Law professor and former dean. And we named eight defendants, the Florida Board of Governors of the State University System of Florida, the education commissioner and the boards of trustees of the universities that the different professors come from. We also have one declarant who is department chair speaking on behalf of non-tenured instructors. We really wanted to represent the non-tenured voice because we think that these are some of the most vulnerable people in the academy and they're the most likely to get complaints lodged against them. They also have the fewest protections if they expose their university to any sort of liability. Not surprisingly, we had a hard time finding non-tenured folks who are willing to stick their necks out and be plaintiffs. We don't blame them for that--they face a very real risk--but we really did want to bring that narrative into view, so we were pleased to at least get the declaration about the non-tenured perspective.

We're bringing four claims to under the First and Fourteenth Amendments. Our first claim is based on the viewpoint based regulation of academic speech by instructors. I'll note that instructors includes professors, non-tenured professors, adjuncts, teaching assistants, and even possibly students who are leading a particular session. I think this highlights how on university campuses, people wear different hats at different times: students, teachers, employees, residents. It makes it hard to make sharp divisions about who is an instructor.

There's the right to academic speech by instructors and there's also a students' right to receive information that's recognized under the First Amendment and that's the basis for our second claim. We represent one FSU student who's a very brave student activist who actually testified against the Stop W.O.K.E. Act in the legislature twice and I think she has a particularly compelling narrative. People often say, protesting is all well and good, but you need to actually engage in the process. And this plaintiff, Johanna Dauphin, she engaged, she's testified, and now she's one of the plaintiffs against this law.

Our third claim is that the law is void for vagueness. As I mentioned, there are some provisions that are obviously unconstitutionally vague and this is related to but separate from the First Amendment issues - vagueness is a due process violation. People often conflate due process vagueness with First Amendment overbreadth, but they're actually separate, which we think is important in such a politically charged case. A judge could, though we hope they don't take this option, rule that the law is vague without having to say anything about so-called wokeness or censorship. In Oklahoma, our lead claim was a vagueness claim. We have a slide deck that a school district produced to provide teachers with guidelines for how they will implement HB 1775 where they literally wrote, “Nobody knows what this part of the law means.” So, a teacher in Oklahoma can lose their license if they violate a law and nobody knows what it means.

The final claim is equal protection. We argue that the based on the legislative record, it's obvious that there was discriminatory and racist intent in the passage of the law. We move to a preliminary injunction on the first three claims, the First Amendment and the due process claims. When we think of academic freedom and racial justice being in tension, we think of academic freedom as code for the right of powerful professors to say offensive things, but I want to change the narrative a little bit. This is an academic freedom case. This is also a racial justice case.

[. . .]

This call for forgiveness, does not mean that we should not call out discrimination and bias when we see it. I am a huge proponent of calling out--I believe that it is the epitome of free speech. But at the same time, I do have have concerns about the idea of “cancelling.” Much ink has ben spilt as to whether cancel culture is actually a thing, but to the extent that people on all sides of the political spectrum reach to the most punitive measure available when do or say something that they don't like, and share the impulse to excommunicate people from polite society for disagreeing with them, it makes me think about how can we find a way to show that we care about something without immediately resorting to censorship and punishment.

Restorative justice doesn't mean you let things go or that any harm done is not important, it means that we prioritize making victims whole and we prioritize real accountability. I submit that between throwing up our hands and saying there is nothing we can do to address controversial speech because of the First Amendment and excommunicating people from our community because of what they've said or thought are all the good ideas for how communities can heal and grow and prosper together.


Emerson Sykes is a Senior Staff Attorney at the American Civil Liberties Union Foundation's Speech, Privacy & Technology Project where he litigates First Amendment speech and assembly cases.