Pernell v. Florida Board of Governors. Britt Grant joined by Charles Wilson; Barbara Lagoa (unsurprisingly) in dissent).
This case challenged restrictions on classroom “that espouses, promotes,
advances, inculcates, or compels” students to believe certain things about race or sex.
The majority makes several moves: 1) Garcetti does not apply to professors’ classroom speech; 2) speech by public employees does not become government speech by virtue of government paying the salary; 3) Pickering balance favors plaintiffs, considering the import of academic freedom, the state’s acknowledged goal of stopping disfavored viewpoints rather than promote classroom efficiency or effective teaching, the vagueness of the regulations, and the prophylactic, broadly applicable, ex ante nature of the regulations.
The majority distinguished (sensibly) circuit precedent (from 1992) in which the court rejected a challenge to a university punishing a professor for bringing his religious views and other extraneous ideas into his physiology classes. Ensuring that the content of a course aligns with broad curricular guidelines differs from a blanket prohibition on teaching certain concepts in a certain way in all classes on all topics by all professors.
The case emphasized several important distinctions: Between regulatory efforts by universities (boards and administrators) and by state legislatures and political leaders; the former ontrol curriculum and other aspects of a public university. Between curricular decisions (what gets taught) and blanket censorship of disfavored ideas because the state dislikes those ideas.
And while the majority incorporates academic-freedom norms into the First Amendment, it does not render academic freedom and the First Amendment coextensive. Academic freedom principles may require things as a normative matter that the First Amendment does not compel. Academic-freedom norms of shared governance say boards and administrators control curriculum only in cooperation with faculty; academic-freedom norms of deference to faculty expertise say that the university decides what courses to offer but faculty decide the specifics of that course (e.g., textbook). It takes another step for a court to say that failure to engage in shared governance violates the First Amendment.
The new problem in Florida involves the place of Intro to Sociology in the general education curriculum. The Board of Governors (which oversees all Florida public universities) declared that every available introductory textbook was impermissible for the intro class as part of Gen Ed (because all discuss race, sex, gender identity, etc.); the Board convened a committee to develop a set of desiccated materials. Under Pernell, the Board’s decision to eliminate Intro to Sociology from Gen Ed is probably OK–the university (rather than the legislature) makes broad decisions about curriculum development and what courses students must take. Perhaps dictating the textbook crosses a line (although perhaps not, if the university makes the decision), but that is small consolation when the university says “fine, the class as you want to teach it cannot be in Gen Ed.”