Michael Moline, Florida Phoenix
A legal challenge to a Florida law forbidding university classes that “distort” history or programs that foster diversity may turn on whether it has actually harmed the group of professors, students, and others behind their lawsuit.
That’s the inference from about two hours of oral arguments that unfolded Monday before Chief U.S. District Judge Mark Walker in Tallahassee.
NCF Freedom Inc., an umbrella group for the plaintiffs from New College of Florida, claims SB 266, passed earlier this year, has already chilled their plans to teach or study material deemed “woke” by the DeSantis administration, including those that touch on systemic racism, identity politics, or gender studies.
Although the plaintiffs are from New College, the case has implications for university communities across Florida.
Walker said he planned to issue a ruling relatively quickly.
“I’ll try to get an order out in the next 10 days,” the judge said.
Lawyers for the state insisted under questioning by Walker that no one, including the plaintiffs, have been harmed by the law, at least not yet, because the university system is still working its provisions into the curricula at the various state universities through the opening of fall semester next year.
Under federal civil procedure, if the plaintiffs haven’t suffered harm the courts are capable of relieving, they lack standing, or the right to sue.
Furthermore, the state argued, the law doesn’t target single professors, students, or clubs. Instead, it threatens state funding for universities that fail to protect students against disfavored speech. The state’s attorneys stressed Monday that the restrictions apply only to general education courses — classes required typically during freshman and sophomore years.
“This is a statute that does not go into individual classroom speech. This is directed at the Board of Governors and the institutions that constitute the Board of Governors,” which supervises Florida’s State University System, argued Bill Galvano, general counsel to the New College Board of Trustees.
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.
Walker did express skepticism about any attempt to define a distortion of history. He mentioned “Gone with the Wind,” once considered in some circles a reasonable account of the Civil War and Reconstruction.
“We can’t agree on the most basic sort of issues relating to history or political science,” Walker observed. “Where does distortion stop and start?”
Gary Edinger, a Gainesville attorney representing the plaintiffs, explained to reporters following the arguments that the state appeared to have written the law to snooker anyone attempting to sue, like in the billiards game — as the state of Texas did with its law allowing private lawsuits against people having abortions, erecting a procedural barrier between them and the state.
The implication being: They may be oppressed, but no one is oppressing them individually, so there’s no one to sue.
“What he was wrestling with here is that the kind of statute we have here, where we have 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 this law is actually constitutional. The issue is, can anyone sue,” Edinger said.
SB 266 blocks 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 professors’ employment contracts’ arbitration option.
‘Simple country judge’
Walker pressed the state’s lawyers on the law’s attempt to declare which academic approaches — as the law puts it — “distort significant historical events.” The law also bans “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.”
Walker acknowledged that he’s “a simple country judge from Tallahassee, Florida,” but pressed attorney Galvano — a former Senate President in the Legislature — to explain whether the threat to state funding wouldn’t work as a de facto way of censoring classroom instruction, even in upper-level classes not ostensibly covered by the statute.
He compared the state’s case to putting a saddle on a mule and calling it a racehorse.
“You don’t make a racehorse by calling it a racehorse,” Walker said. Similarly, the state’s approach appears to be, “You can teach these classes but you can’t express these viewpoints within that classroom,” he continued.
Edinger, meanwhile, argued it’s unreasonable to expect that the threat of the loss of state funding won’t affect university administration decisions about tenure, salary, and job discipline, even for profs teaching upper-level classes.
“What about the professors who are teaching general education? They have these issues of, ‘How am I going to teach consistently with a statute that is so vague that no one understands what it means?’” Edinger said.
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