A federal judge heard arguments Monday in a challenge to a new state law that prohibits instruction on certain topics in 鈥済eneral education core courses鈥� at state colleges and universities.
The challenge, filed by the group NCF Freedom, Inc. and several New College of Florida professors and students, seeks to block higher-education officials from enforcing parts of the law.
But lawyers for the New College Board of Trustees and the state university system鈥檚 Board of Governors told Chief U.S. District Judge Mark Walker that the plaintiffs lack legal 鈥渟tanding鈥� to challenge the law and that the issue isn鈥檛 鈥渞ipe鈥� for consideration by the court.
The plaintiffs are 鈥渢rying to connect dots too far,鈥� attorney Bill Galvano, a former state Senate president who represents New College鈥檚 trustees, said.
Under the law, core curriculum courses 鈥渕ay not distort significant historical events,鈥� include curricula that teach 鈥渋dentity politics鈥� or violate a separate law that restricts the way certain race-related topics can be taught.
The new law also prohibits curricula 鈥渂ased on theories that systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States and were created to maintain social, political, and economic inequities.鈥�
鈥淲hen does it stop being curriculum and when does it start regulating viewpoint, when you get into the nitty gritty about what you can talk about or can鈥檛 talk about, as it relates to specific issues in history, for example?鈥�U.S. District Judge Mark Walker
Under the measure, schools that offer courses that do not comply with those parts of the law would not be eligible to receive what is known as performance-based funding. Such funding can total tens of millions of dollars for some universities.
Restrictions in the law would strip away numerous course offerings from New College students, according to the plaintiffs, who allege that the law infringes on professors鈥� speech rights.
But Galvano argued that the law is focused on 鈥減rograms鈥� offered by state universities, not on what professors are allowed to say inside classrooms.
The law doesn鈥檛 say, 鈥淚f you teach this, you will be disciplined,鈥� Galvano argued.
Galvano also said the lawsuit is 鈥減remature鈥� because university officials haven鈥檛 created regulations to carry out the law.
鈥淚t鈥檚 not ripe, and I don鈥檛 believe we have a concrete issue before you,鈥� he told Walker.
Jason Gonzalez, an attorney who represents the university system鈥檚 Board of Governors, said the law doesn鈥檛 restrict instruction in elective courses. But Walker pressed him on the issue.
鈥淲hen does it stop being curriculum and when does it start regulating viewpoint, when you get into the nitty gritty about what you can talk about or can鈥檛 talk about, as it relates to specific issues in history, for example?鈥� the judge asked.
Gonzalez, reading from the law, said professors can teach about 鈥渉istoric events,鈥� as long as they do not 鈥渄istort鈥� the facts.
But Walker pushed back.
鈥淚t seems to me in this state and this country right now, we can't agree on some of the most basic issues related to history or political science. 鈥� This idea, to say you can鈥檛 distort, is it really that simple?鈥� the judge asked.
The judge pointed to the movie 鈥淕one with the Wind鈥� as the 鈥渃lassic example鈥� of 鈥減op culture adopting or fueling 鈥� a false narrative鈥� about history.
鈥淲here does distortion stop and start? I don鈥檛 think it鈥檚 that simple,鈥� he said.
Gonzalez said professors can 鈥渟ay whatever they want鈥� in elective courses.
鈥淭here鈥檚 no proscribed speech here,鈥� he said, adding that the law 鈥渄oesn鈥檛 outlaw a single course.鈥�
The judge repeatedly asked lawyers on both sides to point to evidence in the court record showing professors would be punished if they violate the law.
鈥淲hat鈥檚 the evidence 鈥� to show their fear is reasonable?鈥� Walker asked Gary Edinger, who represents the plaintiffs.
鈥淟et's get to the nub of it, counsel. ... We're fast approaching the day where we're becoming the movie 鈥業diocracy,鈥欌�� the judge said. 鈥淲hat鈥檚 in the record that would suggest that it鈥檚 objectively reasonable to believe 鈥� that the folks 鈥� are going to be told what they can and cannot teach or they鈥檙e going to have to change 鈥� or they鈥檙e going to be disciplined?鈥�
New College professors 鈥渁re currently self-censoring鈥� and have changed their course syllabi, Edinger responded. Professors who violate the law and cause their universities to lose funds could also lose tenure, he added.
The 鈥渟chizophrenic hybrid statute鈥� is unconstitutionally vague, and it鈥檚 not too soon for the court to consider what is known as a 鈥減re-enforcement鈥� challenge to the law, Edinger said.
鈥淲e feel it is appropriate to 鈥� take a look at the law and see how it stacks up against the Constitution,鈥� he told Walker.
The judge said he expects to issue an order within 10 days on a request by the plaintiffs for a preliminary injunction to block parts of the law.
鈥淚 teach what I usually have taught. But that is at the risk that I just might not have my job, I don't know, next year, the year after, who knows?鈥�Sarah Hernandez, New College sociology professor
The 2023 law built on a controversial law 2022 statute that restricted the way race-related concepts can be taught in higher education. The 2022 law, dubbed the 鈥淪top Wrongs To Our Kids and Employees Act,鈥� or 鈥淪top WOKE Act,鈥� allowed universities to fire instructors who violate restrictions and gave permission to the Board of Governors to withhold performance funding from schools that do not correct instruction that violates the law.
Opponents challenged the 2022 law, which was a priority of Gov. Ron DeSantis, and Walker issued a preliminary injunction blocking state officials from enforcing it. The 11th U.S. Circuit Court of Appeals is slated to hear arguments in the state鈥檚 appeal of Walker鈥檚 order in late January.
Speaking to reporters outside the federal courthouse after Monday鈥檚 hearing, Edinger said Walker was grappling with the law, which may have been crafted to prevent challenges.
鈥淚 think what he was wrestling with here is that the kind of statute we have here, where it has things that would obviously violate the Constitution. The judge seemed to take that for granted and I didn't hear a whole lot of defense from the state that these laws are actually constitutional. The issue is, can anyone sue? So we've put together plaintiffs in this suit that are the perfect plaintiffs. They are a variety of students, (an) organization, professors. They teach classes which are clearly affected by the statute, and yet, maybe no one will be able to sue. So that is most of what our argument was about today. Is it possible for a plaintiff to challenge the statute and do we have to wait until someone is actually disciplined as opposed?鈥� he said.
Sarah Hernandez, a New College sociology professor who is a plaintiff, said she鈥檚 teaching intermediate courses but worries that she might be disciplined for violating the law.
鈥淚 teach what I usually have taught. But that is at the risk that I just might not have my job, I don't know, next year, the year after, who knows?鈥� she said.
Hernandez said she informs students that what she is teaching 鈥渕ay be in fact considered illegal in the state of Florida,鈥� under the new laws.
鈥淭his is something I've never had to tell them before. And it's something they need to be aware of. Here's the impact,鈥� she said.
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