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With Last-Minute Changes, Florida’s ‘Stop WOKE’ Bill Establishes Limits on Classroom Instruction Some Experts Call ‘Flatly Unconstitutional’

Florida Gov. Ron DeSantis speaks at the Conservative Political Action Conference (CPAC) at The Rosen Shingle Creek on Feb. 24 in Orlando, Florida. (Joe Raedle/Getty Images)

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Legislation on its way to Florida Gov. Ron DeSantis’s desk goes further than any yet proposed in banning certain race- and gender-related lessons and diversity trainings in K-12 schools. The legislation allows Floridians to sue if teachers violate its prohibitions on certain kinds of instruction.

What’s more, the state’s public colleges and universities could find themselves on the wrong end of the proposed law, with disastrous financial consequences.

“It will be the first state in the country that enacts a higher education curriculum ban, so it is unique in that regard,” said Tyler Coward, senior legislative counsel at the Foundation for Individual Rights in Education (FIRE), a higher education free-speech advocacy group. 

Similar bills in other states, he said, “are limited solely to K-12, or the higher education applications are limited to either university trainings — where there are no academic freedom concerns — or to prohibitions on compelling students to express agreement with the specified concepts.”

FIRE and other groups have urged the governor to veto the bill.

House Bill 7, widely known as the “Stop WOKE Act,” prohibits instruction that implies someone is responsible for actions “committed in the past by other members of the same race, color, sex or national origin.” It requires that instruction, materials, and professional development be “consistent with principles of individual freedom” – and allows Floridians to sue if they believe their school or workplace has violated the law.

So-called “divisive concepts” bills have made their way through state legislatures nationwide over the past several months, with most limiting how educators can talk about issues around race and gender in the classroom. Similar legislation has surfaced in Iowa, Idaho, New Hampshire, and Oklahoma, among other states. 

In Florida, the strongest language in the bill is directed at the state’s public colleges.

Irene Mulvey, a mathematics professor at Connecticut’s Fairfield University and president of the American Association of University Professors, called HB7 “a complete violation of academic freedom for instructors” that “basically legislates ignorance in higher education.”

Just before its passage, FIRE’s Coward wrote in a March 7 op-ed that Florida lawmakers were “about to cross an unconstitutional line” in approving the legislation. For instance, the bill would ban defending affirmative action policies. “This sort of viewpoint-based discrimination,” he wrote, “is flatly unconstitutional.”

He said students who feel targeted in class on the basis of race or sex can already use existing anti-discrimination law.

The proposed legislation, Coward said, also may violate a law that DeSantis signed just last year: In 2021, Florida lawmakers approved an “intellectual freedom” measure that prohibits the state from shielding students from speech protected by the First Amendment — even speech “​​they may find uncomfortable, unwelcome, disagreeable, or offensive.”

In an interview, Coward said HB7 and similar legislation “runs afoul of decades of Supreme Court precedent protecting the academic freedom of professors to discuss topics germane to their area of expertise.” 

Unlike educators in K-12 public schools, who must deliver a curriculum that’s typically approved by a local school board, college instructors enjoy more leeway to teach and speak freely with students. 

Several landmark court cases have noted “a special concern” of the First Amendment when it comes to higher education, according to ​​Julie Underwood, an attorney, dean emerita of the University of Wisconsin School of Education and former general counsel for the National School Boards Association. That’s because courts have honored higher education’s role in “fostering a marketplace of ideas,” Underwood has written.

A spokesperson for DeSantis last week said the new legislation hadn’t yet reached his desk and he did not immediately respond to a request for details on when DeSantis is expected to sign the bill.

Last-minute changes to the legislation would empower the state Board of Governors, which oversees Florida’s public universities, to look into possible violations. And it would make universities ineligible for extra performance-based funding, based on indicators such as graduation rates and alumni median earnings, if even one person violates the law. According to the amended legislation, in addition to the Board of Governors, a court or a standing committee of the legislature could also determine whether violations have taken place.

That provision prompted Rep. Carlos Guillermo Smith, an Orlando Democrat, to say last week that such a committee “will then be the judge, jury and executioner on all violations of House Bill 7.”

AAUP’s Mulvey said enabling legislators to identify violations “basically guarantees inappropriate interference in higher education.”

More generally, she said, the performance-based funding threat “will just absolutely chill academic freedom in public higher ed because an instructor will be worried about having a nuanced and difficult discussion on an important topic in the classroom. They’ll be worried that this discussion could be misinterpreted or misunderstood and then reported, resulting in a loss of funding for the entire institution for a year. So I feel like people will be looking over their shoulders. They’ll be second-guessing themselves. They’ll be self-censoring themselves. And who loses there are the students, who are really going to be denied the full, fair and honest education they deserve.” 

Mulvey said she hopes that gives DeSantis pause before signing the bill, “but I’m not confident that it will.”

Civil rights groups are opposing the bill. Equality Florida urged its supporters to help defeat the legislation, saying lawmakers “should be addressing the issues of everyday Floridians, not censoring workplaces and schools from teaching honest LGBTQ history, Black history, the root causes of injustice and discrimination, and more.”

The legislation has passed both chambers of Florida’s state legislature along partisan lines. DeSantis, a Republican widely expected to run for president in 2024, previously signed an executive order barring schools from engaging students in what opponents say are problematic lessons around race and gender. 

DeSantis had actually proposed the legislation in December, saying he wants Florida to become “a bulwark” against school lessons and corporate trainings that make people uncomfortable about their ancestors’ actions.

The Florida legislation’s sponsor, Miami Springs Republican Rep. Bryan Avila, has said students and workers “deserve to learn and earn in positive environments that value each individual.”

A one-time adjunct professor at Broward College, Avila said students rely more and more on teachers as role models. “So, really, it’s incumbent on the teacher to show restraint, in terms of inserting any sort of belief or any sort of ideology that is not consistent with the values … that we’re trying to make sure that students feel like they’re learning in a positive environment,” WUSF reported.

Avila did not immediately respond to a request for comment.

Similar legislation is progressing in Tennessee that would limit what educators can require in class. It would also require colleges to survey students every two years to assess students’ “comfort level in speaking freely on campus, regardless of political affiliation or ideology,” the Commercial Appeal reported.

The bill’s sponsor, Republican Sen. Mike Bell, has said the legislation doesn’t ban teaching any concept, but prohibits “mandatory” trainings around them. He also said colleges “can’t incentivize teachings around these concepts.”

Lawmakers in most states have removed provisions around higher education at the urging of groups like FIRE, as well as the ACLU, AAUP, and others.

Coward said lawmakers in Georgia a few weeks ago removed higher education provisions from a divisive concepts bill after FIRE testified that there are “constitutional issues at play when you’re restricting what can be taught in college classrooms.”

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