By Jim Saunders ©2022 The News Service of Florida
TALLAHASSEE — Nearly two years after the controversial measure passed, a federal judge next month will consider the constitutionality of a Florida law that requires conducting surveys on state college and university campuses about “intellectual freedom and viewpoint diversity” and includes other changes that opponents argue violate First Amendment rights.
Chief U.S. District Judge Mark Walker is scheduled to start a trial Jan. 9 in a challenge by the United Faculty of Florida and other plaintiffs to a 2021 law approved by the Republican-controlled Legislature and Gov. Ron DeSantis.
Under the law (HB 233), annual surveys began this spring about “intellectual freedom and viewpoint diversity” at colleges and universities. Also, the law said schools may not “shield” students and faculty members from “ideas and opinions that they may find uncomfortable, unwelcome, disagreeable or offensive.”
In addition, it opens the door to lawsuits based on violations of people’s “expressive rights” at colleges and universities and allows students to record class lectures ”in connection with a complaint to the public institution of higher education where the recording was made, or as evidence in, or in preparation for, a criminal or civil proceeding.”
In a pre-trial brief, plaintiffs’ attorneys wrote that the “First Amendment’s strong predilection for academic freedom overcomes the state’s interests in HB 233.”
“They (plaintiffs) simply want the freedom to teach as they have before, without fear that discussing their viewpoints, or exercising legitimate (pedagogical) decisions about what to cover in their class — or making decisions about when to shut down a conversation that is unproductive or disruptive to the learning environment — will cause a student to use HB 233’s new, expansive monitoring tools, to report that their institutions are biased or hostile to intellectual freedom in the annual surveys, or report them for violating the anti-shielding provisions, perhaps secretly recording them in the process,” the plaintiffs’ Dec. 8 brief said.
But attorneys for the state argued in a pre-trial brief that the law “does not restrict any speech, is not content-based on its face, and the state’s asserted interest, backed by the legislative record, is similarly content-neutral, unrelated to the suppression of speech.” Defendants in the case are the state university system’s Board of Governors, the State Board of Education and Education Commissioner Manny Diaz Jr.
“After more than a year of litigation, the trial in this case will confirm what has been true from the outset: Plaintiffs have not been injured by HB 233, none of their hypothetical fears have materialized, none of their conspiracy theories are borne out by the evidence, and none of their constitutional rights have been violated,” the state’s brief, also filed Dec. 8, said, “The central fact plaintiffs have successfully established thus far, and the fact they will establish with certainty at trial, is that they vehemently disagree with HB 233 as a matter of policy. … But a policy disagreement does not give rise to a cognizable injury at all, let alone a deprivation of plaintiffs’ constitutional rights at the hands of defendants.”
Walker on Dec. 9 rejected motions by both sides for summary judgments, which, if granted, would have short-circuited the need for a trial.
“As for plaintiffs’ motion for summary judgment, factual disputes and competing inferences abound. … Plaintiffs’ First Amendment claims require this court to engage in a fact-intensive inquiry, which this court is better suited for doing at the bench trial,” Walker wrote in part of the order.
The trial will come amid broader debates about attempts by DeSantis and Republican lawmakers to place additional restrictions on what is taught on college and university campuses and in public schools.
Walker last month issued a preliminary injunction against a 2022 law that restricts the way race-related concepts can be taught in universities. DeSantis dubbed the law the “Stop Wrongs To Our Kids and Employees Act,” or “Stop WOKE Act.” The state has appealed Walker’s ruling to the 11th U.S. Circuit Court of Appeals.
In their pretrial brief, the plaintiffs’ attorneys cited Walker’s ruling in the Stop WOKE case to try to bolster arguments against the 2021 law. Also, for example, they wrote that the annual surveys “put pressure on Florida colleges, universities, and faculty to avoid any speech that could cause them to be reported to defendants as excessively liberal in the annual surveys. Those surveys, moreover, are designed to collect information about speech outside of any useful context in which any actual concerns about problematic bias could be appropriately investigated and addressed.”
But attorneys for the state wrote that the law does not require students and faculty members to participate in the surveys and does not “require anyone to ‘register’ their political beliefs — a central feature of plaintiffs’ claims.”
“(The) survey provisions’ purpose is to move beyond anecdotes to empirically assess freedom of expression and viewpoint diversity on Florida’s public campuses,” the state’s pre-trial brief said. “This is a perfectly legitimate end for the state to pursue. Like a thermometer, the surveys are meant to be a diagnostic tool designed to take the temperature of taxpayer-funded campuses. The survey provisions presuppose no diagnosis, prescribe no course of treatment and predict no future action or consequence.”
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