Why We Wrote an Amicus Brief to Contest the Stop WOKE Act

DeSantis's war on "woke indoctrination" compels professors to commit educational malpractice

The most controversial line from Florida’s new Social Studies standards reads as follows:

“instruction includes how slaves developed skills which, in some instances, could be applied for their personal benefit”

Here is how Governor Ron DeSantis defended this provision in a recent press conference: “They’re probably going to show that some of the folks that eventually parlayed, you know, being a blacksmith into doing things later in life.”

The impetus to whitewash history drives many of DeSantis’s educational initiatives, including House Bill 7, aka the Stop WOKE Act. Indeed, “The Stop WOKE Act Whitewashes History” is one of the main arguments we made in an amicus brief we recently submitted to support the plaintiffs challenging the Act.

You can read the full brief here. This short piece, originally published in Washington Monthly, explains why we wrote it:

The Supreme Court’s rejection of affirmative action in college admissions will provoke widespread debate. But not in the classrooms of Florida’s public colleges and universities, because the Stop WOKE Act would prohibit it.  

A pillar of Governor Ron DeSantis’ campaign against alleged “woke indoctrination,” the Stop WOKE Act, signed in 2022, stipulates that students in Florida’s K-20 public education system cannot be subjected to instruction that “espouses” or “advances” eight blacklisted concepts. 

One of these concepts is that “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.” This provision disqualifies any material that is pro-affirmative action. How, then, will students at Florida’s state universities “contribute to the democratic process” and “function as engaged community citizens” (to quote the mission statement of the University of South Florida) if they can’t discuss the pros and cons of vital issues like this?  

We just completed a year-long fellowship with the University of California National Center for Free Speech and Civic Engagement, where we investigated the effects of the Stop WOKE Act and other laws targeting higher education in Florida. From our research, which included interviews with over a dozen faculty at Florida public universities, we learned how the Stop WOKE Act has trampled on academic freedom, significantly restricting the ability of teachers to deliver accurate, engaging, and effective classroom instruction.  

That’s why we were happy to submit an amicus brief last Friday to support the plaintiffs—seven faculty members and a student group—seeking to strike down the Stop WOKE Act. The law is subject to a preliminary injunction, pending appeal from Florida. The federal appeals court for the Eleventh Circuit is expected to make a ruling in the next six months.  

The crux of our brief is that by compelling professors to commit educational malpractice, the Stop WOKE Act undermines public higher education’s mission to develop students’ critical thinking skills and prepare them to be informed citizens.  

“The Stop WOKE Act is an eerie combination of Orwell and Kafka,” University of Florida history professor Jeffrey Adler told us, adding that there are “mandates about what we’re not supposed to do and about what we’re not supposed to say,” but the specifics remain frustratingly amorphous.  

Frank Fernandez, an assistant professor of higher education administration and policy at the University of Florida, said, “The law is vague, but the message is clear.” And the message is that faculty members should avoid topics related to race, racism, and social inequality.  

There are dire consequences for faculty who violate the act. They may be fired or sued, and their institutions stand to lose funding. Despite the injunction, the law has already had chilling effects, negatively impacting teaching in areas ranging from African American studies to psychology.  

Many faculty especially those lacking the protections of tenure are changing their syllabi and are self-censoring to avoid falling afoul of the law. “They are overcorrecting to make sure that they’re not doing anything that could draw attention to themselves and threaten their livelihoods,” says Andrew Gothard, president of the United Faculty of Florida union.  

When professors are intimidated, students are the big losers. Here is how Fernandez captured this dynamic for students in his field:  

One cannot graduate from a higher ed administration program without  encountering critical race theory. I don’t care whether you personally believe it, but you need to be familiar with it. I feel like it would be educational malpractice on my part if I did not teach theories or perspectives that are recognized as important and foundational knowledge for students to be aware of to do research and get jobs.  

Imagine a chemistry professor who couldn’t mention carbon, a biology professor barred from discussing DNA, or a physics professor forbidden from bringing up gravity—this is the scale of educational malpractice the Stop WOKE Act engenders for humanities and social sciences faculty.  

It is no exaggeration to say that the Stop WOKE Act makes it impossible to teach the truth of U.S. history. The law prohibits endorsing or advancing in the course of instruction the idea that “[m]embers of one race, color, national origin, or sex are morally superior to members of another race, color, national origin or sex.” That looks reasonable at first glance. Who would want the classroom to be a forum for racist ideas? But this provision curtails the study of racist ideas. The act forbids students from engaging with primary sources that espouse white supremacy, from Thomas Jefferson’s Notes on the State of Virginia to D.W. Griffith’s 1915 film Birth of a Nation. Teaching students about racism without allowing them to encounter and analyze racist material is like teaching students about the constellations without letting them look at the stars.  

The absurdity of the Stop WOKE Act is illustrated by the guidance Florida’s public colleges and universities provided to faculty after the law was enacted. At North Florida College, for instance, the college’s attorney warned that a professor “teaching a class on U.S. History and Jim Crow laws could not tell students the historical fact that ‘white people were responsible for enacting’ Jim Crow laws.” We presume the attorney was concerned that instruction along these lines could potentially violate the seventh concept on the Stop WOKE Act’s blacklist, which prohibits instruction that advances the notion that a person “bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress” for past actions committed by people who share their same racial background.  From what we have seen, risk-averse university attorneys are responding to the vagueness of the Stop WOKE Act by recommending that faculty simply avoid any instruction that might fall afoul of the law.

Defending the Stop WOKE Act’s constitutionality, the state of Florida is arguing that faculty speech inside the classroom is government speech. “All the Act does is prohibit the State’s educators from endorsing the enumerated concepts while teaching the State’s curriculum, in the State’s classrooms, on the State’s time, in return for a State paycheck,” the state argues in its brief. Aside from sounding like a communiqué from North Korea’s Ministry of Education, it’s legally dubious because faculty don’t surrender their constitutional rights at the schoolhouse door. Challenging this claim on First Amendment grounds is the crux of the two lawsuits against the Stop WOKE Act. It’s worth reading the brief filed by six Florida professors with support from the ACLU and the NAACP Legal Defense Fund. 

The Stop WOKE Act’s reach into the curriculum and the classroom is unprecedented. When we spoke with Ellen Schrecker, professor emerita of history at Yeshiva University, she told us that what’s happening in Florida is worse than the McCarthy era. (Schrecker literally wrote the book on the latter subject, No Ivory Tower: McCarthyism & the Universities.) While there have been infamous movements to ban campus speakers and organizations (notably Communist individuals and organizations during the Cold War), prohibiting the expression of ideas is unique to our current moment.  

If professors cannot present the full range of views on any given subject, students won’t develop vital critical thinking skills, understand multiple perspectives, evaluate arguments, and form their own considered judgments. By dulling the intellect, the Stop WOKE Act makes students more, not less, susceptible to indoctrination.  

Conservative politicians, pundits, and activists envy Florida’s crackdown on academic freedom and campus free speech. Some states have enacted similar laws targeting higher education. Still, Florida’s Stop WOKE Act is the most high-profile and, arguably, most aggressive government effort to muzzle open discourse. We are afraid that Gothard, the union president, was onto something when he wrote, “Unlike Vegas, what happens in Florida doesn’t stay in Florida.” The people of Florida and beyond will be much better off if the status of the Stop WOKE Act changes from temporarily paused to permanently extinguished.