Florida in October petitioned for cert from the Eleventh Circuit decision declaring invalid Florida’s Stop WOKE Act as applied to university classroom speech. Florida’s petition asks the Court to decide that Garcetti applies to university classroom speech such that it is government speech unprotected by the First Amendment. Or, if not government speech, classroom instruction is subject to ordinary Garcetti analysis, not unique academic-freedom protections the Eleventh Circuit applied. AG’s from thirteen states (the usual suspects)1 filed an amicus in support of Florida.
None of this can be squared with academic freedom principles incorporated into the First Amendment in Sweezy and Keyshian, which rejected state attempts to control classroom speech by controlling who could teach and how. Either the First Amendment limits (in some way) what states can dictate about university professors in the classroom or the state can dictate what professors say just as it can dictate the litigation position an ADA espouses. Both cannot be right.
I can see the Court taking the case–there is a deep circuit split, a dissent below, a high-profile law, and Florida has been at the vanguard of these efforts. I would like to believe the Court does not have the stomach to eliminate academic freedom as a First Amendment concept.
But I am often wrong.
- Including Texas. But presumably by the time the Court takes the case and merits briefing is due, the newly elected Democrat will be in office and will back away from this position. ↩︎