NOVOA et al v. DIAZ JR et al
Filing
44
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR PRELIMINARY INJUNCTION. The Pernell Plaintiffs' motion for a preliminary injunction, ECF No. 12, in Case No.: 4:22cv304-MW/MAF, is GRANTED in part. Defendants Manny Diaz , Jr.; Brian Lamb; Eric Silagy; Timothy M. Cerio; Richard Corcoran; Aubrey Edge; Patricia Frost; Nimna Gabadage; Edward Haddock; Ken Jones; Darlene Luccio Jordan; Alan Levine; Charles H. Lydecker; Craig Mateer; Steven M. Scott; Deanna Michael; and Ke nt Stermon-all in their official capacities as members of the Florida Board of Governors of the State University System-must take no steps to enforce the following until otherwise ordered: a. Sections 1000.05(4)(a)(b), Florida Statutes; and b. the Board of Governors's Regulation 10.005(2)(3) and (4)(d). The preliminary injunction binds the above-listed Defendants and their officers, agents, servants, employees, and attorneys-and others in active concert or participation with any of them-w ho receive actual notice of this injunction by personal service or otherwise. The motion, ECF No. 12, in Case No.: 4:22cv304-MW/MAF is otherwise DENIED in part as to Defendants the University of Florida Board of Trustees; the University of South Flo rida Board of Trustees; the Florida International University Board of Trustees; the Florida A&M University Board of Trustees; the Florida State University Board of Trustees; and the University of Central Florida Board of Trustees. The Novoa Plaintif fs' motion for a preliminary injunction, ECF No. 19 , in Case No.: 4:22cv324-MW/MAF, is GRANTED in part. Defendants Manny Diaz, Jr.; Brian Lamb; Eric Silagy; Timothy M. Cerio; Richard Corcoran; Aubrey Edge; Patricia Frost; Nimna Gabadage; Edwa rd Haddock; Ken Jones; Darlene Luccio Jordan; Alan Levine; Charles H. Lydecker; Craig Mateer; Deanna Michael; Steven M. Scott; and Kent Stermon-all in their official capacities as members of the Florida Board of Governors of the State University Syst em-must take no steps to enforce the following until otherwise ordered: a. Sections 1000.05(4)(a)1.3., 5., and 7., Florida Statutes, and Section 1000.05(4)(b), Florida Statutes as to those concepts; b. the Board of Governors's Regulation 10.00 5(2)(3) and (4)(d) as to the first, second, third, fifth, and seventh concepts listed in Regulation 10.005(1)(a)1.3., 5., and 7. Defendants Timothy L. Boaz; Sandra Callahan; Michael Carrere; N. Rogan Donelly; Michael E. Griffin; Oscar Horton; Lauran Monbarren; Nithin Palyam; Shilen Patel; Fredrick Piccolo; Melissa Seixas; Jenifer Jasinski Schneider; and William Weatherford-all in their official capacities as members of the University of South Florida Board of Trustees-must take no steps to comp ly with the following until otherwise ordered: a. Sections 1000.05(4)(a)1.3., 5., and 7., Florida Statutes, and Section 1000.05(4)(b), Florida Statutes as to those concepts; b. the Board of Governors's Regulation 10.005(2)(3) as to the first, s econd, third, fifth, and seventh concepts listed in Regulation 10.005(1)(a)1.3., 5., and 7. The preliminary injunction binds the above-listed Defendants and their officers, agents, servants, employees, and attorneys-and others in active concert or p articipation with any of them-who receive actual notice of this injunction by personal service or otherwise. The motion, ECF No. 19 , in Case No.: 4:22cv324-MW/MAF, is otherwise DENIED in part as to: a. Defendants the Florida Board of Governors of the State University System; the University of South Florida Board of Trustees; and Julie Leftheris in her official capacity as the Inspector General of the Board of Governors; and b. The remaining Defendants' enforcement of or compliance with: i. Sections 1000.05(4)(a)4., 6., and 8., Florida Statutes; ii. the Board of Governors's Regulation 10.005 as to the fourth, sixth, and eighth concepts listed in Regulation 10.005(1)(a)4., 6., and 8. Signed by CHIEF JUDGE MARK E WALKER on 11/17/2022. (kjw)
Case 4:22-cv-00324-MW-MAF Document 44 Filed 11/17/22 Page 1 of 139
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
LEROY PERNELL, et al.,
Plaintiffs,
v.
Case No.: 4:22cv304-MW/MAF
FLORIDA BOARD OF GOVERNORS
OF THE STATE UNIVERSITY
SYSTEM, et al.,
Defendants.
and
ADRIANA NOVOA, et al.,
Plaintiffs,
v.
Case No.: 4:22cv324-MW/MAF
MANNY DIAZ, JR., et al.,
Defendants.
____________________________/
ORDER GRANTING IN PART AND DENYING IN PART
MOTIONS FOR PRELIMINARY INJUNCTION
“It was a bright cold day in April, and the clocks were striking thirteen,”1 and
the powers in charge of Florida’s public university system have declared the State
1
GEORGE ORWELL, 1984 at 1 (1961). In this case, Defendants’ “argument is like the
thirteenth chime of a clock: you not only know it’s wrong, but it causes you to wonder about
everything you heard before.” United States v. Marchena-Silvestre, 802 F.3d 196, 203 (1st Cir.
2015). Coincidentally, Governor DeSantis signed the law at issue on April 22, 2022.
Case 4:22-cv-00324-MW-MAF Document 44 Filed 11/17/22 Page 2 of 139
has unfettered authority to muzzle its professors in the name of “freedom.” To
confront certain viewpoints that offend the powers that be, the State of Florida
passed the so-called “Stop W.O.K.E.” Act 2 in 2022—redubbed (in line with the
State’s doublespeak) the “Individual Freedom Act.” The law officially bans
professors from expressing disfavored viewpoints in university classrooms while
permitting unfettered expression of the opposite viewpoints. Defendants argue that,
under this Act, professors enjoy “academic freedom” so long as they express only
those viewpoints of which the State approves.3 This is positively dystopian.4 It
2
Governor DeSantis originally announced his legislative proposal, the so-called “Stop
Wrongs to Our Kids and Employees (W.O.K.E.) Act,” in December 2021. ECF No. 19-11, in Case
No.: 4:22cv324-MW/MAF. The Governor championed his proposal as a way to “fight back against
woke indoctrination.” Id. at 2. The bill that ultimately passed, HB 7, was named the “Individual
Freedom Act,” but it incorporated several of the same tools that the Governor proposed in his
“Stop W.O.K.E. Act.” Cf. ECF No. 19-12, in Case No.: 4:22cv324-MW/MAF.
3
This Court pauses to note that one of the Defendants’ members recently praised a
construction of academic freedom that is directly at odds with the position Defendants take as a
whole. See University of Florida Board of Trustees Chair Mori Hosseini, Message from Board
Chair Hosseini Regarding President-Elect Sasse, November 2, 2022, available at https://
statements.ufl.edu/statements/2022/november/message-from-board-chair-hosseini-regarding-pres
ident-elect-sasse.html (“Message Regarding President-Elect Sasse”). Specifically, Chairman
Hosseini praised President-Elect Sasse’s comments for making clear “that he appreciates the vital
importance of academic freedom, civil and full discussion of differing viewpoints, and the key role
of the liberal arts in the educational experience.” Id. So framed, President-Elect Sasse’s view of
academic freedom comports with this Court’s construction—namely, that academic freedom
includes the freedom to engage in civil and full discussion of differing viewpoints. But the jury is
out as to whether President-Elect Sasse’s words can be put into practice given the legal challenge
at issue in these cases and the University of Florida’s prior actions in another case. See Austin v.
Univ. of Fla. Bd. of Trustees, 580 F. Supp. 3d 1137 (N.D. Fla. 2022).
4
Indeed, this also contradicts Defendants’ superficial praise for the “marketplace of ideas”
in a parallel case before this Court challenging another state law that regulates public universities.
See William Link, et al. v. Richard Corcoran, et al., Case No.: 4:21cv271-MW/MAF. At oral
argument for the Link plaintiffs’ motion for preliminary injunction, counsel for Defendants
explained that “House Bill 233 is not about trying to rebalance the ideology of the universities or
2
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should go without saying that “[i]f liberty means anything at all it means the right to
tell people what they do not want to hear.” 5
I
In 2022, the Florida Legislature passed the “Individual Freedom Act” (IFA).
The IFA amended the Florida Educational Equity Act (FEEA) to prohibit “training
or instruction that espouses, promotes, advances, inculcates, or compels . . .
student[s] or employee[s] to believe [eight specified concepts].” § 1000.05(4)(a),
Florida Statutes (2022). These eight concepts are as follows:
1. Members of one race, color, national origin, or sex are morally
superior to members of another race, color, national origin, or sex.
to penalize woke universities or woke professors or anything like that. What this is about strictly
is . . . the idea that our universities, our state colleges, our institutions of higher learning are
marketplaces of ideas, and what we want are all of those ideas to be welcomed, even the wrong
ones . . . .” ECF No. 91 at 67, in Case No.: 4:21cv271-MW/MAF (emphasis added). But when this
Court asked whether this liberal welcome to all ideas, even the “wrong ones,” extended to “critical
race theory,” counsel for Defendants glibly responded, “That’s not this case, Your Honor.” Id.
This only serves to highlight the State’s doublespeak that “academic freedom” means the
“freedom” to express only those viewpoints of which the State approves.
5
George Orwell, The Freedom of the Press (First published: The Times Literary
Supplement, Sep. 15, 1972), The Orwell Foundation, https://www.orwellfoundation.com/theorwell-foundation/orwell/essays-and-other-works/the-freedom-of-the-press/ (last visited Oct. 27,
2022). It is not lost on this Court that Mr. Orwell, in the original preface to his iconic political
satire of the rise of Joseph Stalin, Animal Farm, was responding to the liberal elites of his time.
According to Mr. Orwell, the censoring of Animal Farm was merely a symptom of the fashionable
orthodoxy of that era—namely, an “uncritical admiration of Soviet Russia.” Id. So too, here, the
State has responded to fears of “woke indoctrination” in university classrooms. But rather than
combat “woke” ideas with countervailing views in the “marketplace of ideas,” the State has chosen
to eliminate one side of the debate. This only highlights the problem with viewpoint
discrimination—in the name of combatting “indoctrination” of one perceived orthodoxy, the State
allows for “indoctrination” in its preferred orthodoxy.
3
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2. A person, by virtue of his or her race, color, national origin, or
sex is inherently racist, sexist, or oppressive, whether consciously or
unconsciously.
3. A person’s moral character or status as either privileged or
oppressed is necessarily determined by his or her race, color, national
origin, or sex.
4. Members of one race, color, national origin, or sex cannot and
should not attempt to treat others without respect to race, color, national
origin, or sex.
5. A person, by virtue of his or her race, color, national origin, or
sex bears responsibility for, or should be discriminated against or
receive adverse treatment because of, actions committed in the past by
other members of the same race, color, national origin, or sex.
6. A person, by virtue of his or her race, color, national origin, or
sex should be discriminated against or receive adverse treatment to
achieve diversity, equity, or inclusion.
7. A person, by virtue of his or her race, color, sex, or national
origin, bears personal responsibility for and must feel guilt, anguish, or
other forms of psychological distress because of actions, in which the
person played no part, committed in the past by other members of the
same race, color, national origin, or sex.
8. Such virtues as merit, excellence, hard work, fairness,
neutrality, objectivity, and racial colorblindness are racist or sexist, or
were created by members of a particular race, color, national origin, or
sex to oppress members of another race, color, national origin, or sex.
§ 1000.05(4)(a)1.–8., Fla. Stat. (2022).
4
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The IFA also included a so-called “savings clause,”6 which states that the
foregoing “may not be construed to prohibit discussion of the concepts listed therein
as part of a larger course of training or instruction, provided such training or
instruction is given in an objective manner without endorsement of the concepts.”
§ 1000.05(4)(b), Fla. Stat. (2022). Thus, professors may “discuss” the eight concepts
listed above in class, but they must do so “in an objective manner” and “without
endorsement of the concepts.” Id.
The FEEA applies to public colleges and universities in Florida. See
§ 1000.05(2)(a), Fla. Stat. (2022). Any “person aggrieved by a violation” of the
FEEA “has a right of action for such equitable relief as the court may determine.”
§ 1000.05(9), Fla. Stat. (2022).
The FEEA is patterned after Title IX, the chief federal antidiscrimination law
in the education setting. Hawkins v. Sarasota Cnty. Sch. Bd., 322 F.3d 1279, 1286
(11th Cir. 2003). Title IX suits are available only against institutions. Shotz v. City of
Plantation, Fla., 344 F.3d 1161, 1169–70 (11th Cir. 2003). Though no Florida court
has confronted the issue, the FEEA, together with the IFA’s definition of
“discrimination,” appears to authorize suits against public educational institutions—
6
Section 1000.05(4)(b) is not a true “savings clause” in the sense that it requires the law’s
prohibitions to be construed so as not to infringe upon university employees’ First Amendment
rights. Instead, it serves to permit “discussion” of the specified concepts, so long as that discussion
does not stray from the State’s viewpoint or those viewpoints the State allows.
5
Case 4:22-cv-00324-MW-MAF Document 44 Filed 11/17/22 Page 6 of 139
including public universities—if institutions allow professors to “espouse[],
promote[], advance[], inculcate[], or compel[] . . . [a] student or employee to believe
any of the [specified] concepts.”
The FEEA also commands the Board of Governors to “adopt regulations to
implement this section as it relates to state universities.” § 1000.05(6)(b), Fla. Stat.
(2022). To that end, the Board of Governors, on August 26, 2022, issued an
implementing regulation that finalized the Board of Governors’s enforcement
mechanism with respect to section 1000.05(4)(a). See ECF No. 1-2, in Case No.:
4:22cv324-MW/MAF (Regulation 10.005, Prohibition of Discrimination in
University Training or Instruction). The regulation identifies the eight concepts
specified in section 1000.05(4)(a), Florida Statutes, and requires “[e]ach university”
to “have a university regulation that prohibits discrimination on the basis of race,
color, national origin, or sex by subjecting any student or employee to training or
instruction that espouses, promotes, advances, inculcates, or compels such student
or employee to believe any” of those specified concepts. Id. at 2–3.
The regulation also requires each university to follow certain investigatory
protocols, including “inform[ing] the Board of Governors through the Office of
Inspector General” if the university’s “investigation finds that an instruction or
training is inconsistent with the university regulation.” Id. at 3. The Board of
Governors commands state universities to “take prompt action to correct the
6
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violation by mandating that the employee(s) responsible for the instruction or
training modify it to be consistent with the university regulation, issuing disciplinary
measures where appropriate and remove, by termination if appropriate, the
employee(s)” if they fail or refuse to comply with the universities’ mandate. Id. at
3–4.
The Board of Governors also defines its own power to investigate unlawful
instruction or training “[u]pon receipt of a credible allegation that a university
willfully and knowingly failed to correct a violation of the university regulation[.]”
Id. at 4. In that situation, “the Board of Governors’ [sic] Office of Inspector General
shall conduct an investigation to determine if evidence exists to support the
allegation and ineligibility for performance funding.” Id. In the event “it is
determined an external qualified investigative firm is necessary to assist with or
conduct the investigation,” the university subject to investigation “will be
responsible for any costs incurred,” apparently regardless of the investigation’s
outcome. Id.
Ultimately, the Board of Governors makes the “final decision regarding
whether the alleged willful and knowing failure to correct a violation of the
university regulation is substantiated.” Id. And “[i]f the Board of Governors
determines that a university willfully and knowingly engaged in conduct at the
institutional level that constituted a substantiated violation of section 1000.05(4)(a),
7
Case 4:22-cv-00324-MW-MAF Document 44 Filed 11/17/22 Page 8 of 139
Florida Statutes,” and did not take “appropriate corrective action, the university will
be ineligible for performance funding for the next fiscal year following the year in
which the Board of Governors made the determination.” Id. at 4–5.
II
Plaintiffs include university professors and college students who challenge the
IFA’s amendments to the FEEA and the Board of Governors’s implementing
regulation as they relate to prohibiting expression of certain viewpoints regarding
the eight specified concepts during class instruction. Plaintiffs assert these
provisions are unconstitutional under the First and Fourteenth Amendments. They
ask this Court to enjoin enforcement of the challenged provisions, citing the
Supreme Court’s long history of shielding academic freedom from government
encroachment and the First Amendment’s intolerance toward government attempts
to “cast a pall of orthodoxy over the classroom.” See Keyishian v. Bd. of Regs. of
Univ. of State of N.Y., 385 U.S. 589, 683 (1967).
Defendants respond that the First Amendment offers no protection here. They
argue that because university professors are public employees, they are simply the
State’s mouthpieces in university classrooms. As a result, Defendants claim, the
State has unfettered authority to limit what professors may say in class, even at the
university level. Alternatively, Defendants suggest that even if this Court is required
to balance the State’s interests against the professors’ First Amendment rights, the
8
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State’s interests always trump the professors’ rights. According to Defendants, so
long as professors work for the State, they must all read from the same music.7
A
This Court pauses to offer an example of what this challenged law means if
you accept Defendants’ position. At oral argument, Defendants conceded that
concept six—as mentioned above, that “[a] person, by virtue of his or her race, color,
national origin, or sex should be discriminated against or receive adverse treatment
to achieve diversity, equity, or inclusion”—is another way to describe affirmative
action. When asked directly whether concept six is “affirmative action by any other
name,” defense counsel answered, unequivocally, “Your Honor, yes.” Tr. at 91. Thus,
Defendants assert the idea of affirmative action is so “repugnant” that instructors can
no longer express approval of affirmative action as an idea worthy of merit during
class instruction. See id. at 42.
Defendants further assert that this prohibition extends to guest speakers if they
are invited to participate within a course. Id. at 80. As a result, according to
Defendants, university professors cannot even organize an in-class debate between
guest speakers about the merits of affirmative action if one of those speakers were
7
At the hearing, defense counsel asserted that the only limitation the First Amendment
imposes upon the State when it comes to professors’ in-class speech is prohibiting compelled
expression of beliefs that professors do not hold. See Transcript (Tr.) at 40–41. According to
Defendants, the State is prohibited from compelling speech in the classroom, but it has absolute
authority to limit expression.
9
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to espouse, promote, advance, inculcate, or compel students to believe, or otherwise
endorse, the idea of affirmative action. Id. It’s worth keeping in mind that the State
has chosen affirmative action as one of its eight concepts because the State has
deemed it to be repugnant and “noxious to the people of Florida.” ECF No. 52 at 11,
in Case No.: 4:22cv304. Stated otherwise, you can discuss affirmative action as a
historical fact, and you can certainly condemn it as a failed policy, but because the
idea of affirmative action is so odious, so repugnant, so vile, and so dangerous that
it offends the basic principles of common decency, you cannot have a guest speaker
submit their views in favor of affirmative action, even to a class of law students.
What does this mean in practical terms? Assuming the University of Florida
Levin College of Law decided to invite Supreme Court Justice Sonia Sotomayor to
speak to a class of law students,8 she would be unable to offer this poignant reflection
about her own lived experience, because it endorses affirmative action:
I had no need to apologize that the look-wider, search-more affirmative
action that Princeton and Yale practiced had opened doors for me. That
was its purpose: to create the conditions whereby students from
disadvantaged backgrounds could be brought to the starting line of a
race many were unaware was even being run. I had been admitted to
the Ivy League through a special door, and I had more ground than most
to make up before I was competing with my classmates on an equal
footing. But I worked relentlessly to reach that point, and distinctions
such as the Pyne Prize, Phi Beta Kappa, summa cum laude, and a spot
8
Of course, it is questionable whether the University of Florida Levin College of Law
would ever choose to invite Justice Sotomayor, in light of its recent demonstration of anticipatory
obedience to the powers that be. See Austin, 580 F. Supp. 3d at 1145. Nonetheless, this Court poses
the hypothetical to illustrate the consequences of Defendants’ arguments.
10
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on The Yale Law Journal were not given out like so many pats on the
back to encourage mediocre students. These were achievements as real
as those of anyone around me.
SONIA SOTOMAYOR, MY BELOVED WORLD 191 (Alfred A. Knopf ed., 2013). Indeed,
in praising the affirmative action policy that opened a “special door” for her, Justice
Sotomayor has expressed a viewpoint that the State of Florida deems repugnant and
has prohibited. Under the IFA, her words would be per se discrimination if she were
to utter them as a guest speaker in a law school classroom.9
B
Given the disorienting nature of Defendants’ arguments, it is necessary to
address the bedrock First Amendment principles that govern this case before
addressing the merits of Plaintiffs’ motions, including whether Plaintiffs have
demonstrated standing for purposes of entitlement to a preliminary injunction. 10 This
case squarely presents the tension in Florida between university professors’ and
students’ First Amendment rights and the State of Florida’s claim that it has an
unfettered right to prohibit professors from expressing viewpoints with which it
9
This Court recognizes that the constitutionality of affirmative action is presently before
the Supreme Court of the United States. See, e.g., Students for Fair Admissions, Inc. v. President
& Fellows of Harvard Coll., 980 F.3d 157 (1st Cir. 2020), cert. granted, 142 S. Ct. 895 (2022).
This Court does not speak to that issue. However, this Court does note that promoting the legal
merits of affirmative action is a far cry from equating affirmative action with hate speech.
10
This Court recognizes that Plaintiffs also allege that the challenged provisions violate
the Due Process Clause of the Fourteenth Amendment as unconstitutionally vague. This Court
addresses the merits of their vagueness claims in more detail infra.
11
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disagrees. Plaintiffs assert that the challenged restrictions amount to vague,
viewpoint-based restrictions on protected speech that are presumptively
unconstitutional and subject to strict scrutiny. Defendants, on the other hand, assert
that because public university professors work for the State, their in-class speech is
government speech beyond the First Amendment’s reach. And even if the First
Amendment does apply, Defendants argue, the State’s actions must be judged by
something akin to rational basis review.
In presenting their respective positions, both sides go too far in conflating
legal concepts, quoting language devoid of context from their source material, and
ignoring controlling authority. But this Court does not get to cherry-pick convenient
language to build an analytical framework that is unsupported by binding
precedent. 11 Instead, this Court must apply binding Supreme Court and Eleventh
Circuit authority.
“Start with the basics.” Meriwether v. Hartop, 992 F.3d 492, 503 (6th Cir.
2021). “Congress shall make no law . . . abridging the freedom of speech.” U.S.
Const. amend. I. “[A]bove all else, the First Amendment means that government has
no power to restrict expression because of its message, its ideas, its subject matter,
or its content.” Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972). This
11
Although we may have recently celebrated Halloween, that is no excuse to stitch together
a new legal test resembling Frankenstein’s monster. See generally MARY WOLLSTONECRAFT
SHELLEY, FRANKENSTEIN: OR, THE MODERN PROMETHEUS (Oxford Univ. Press, 1998) (1818).
12
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specific prohibition applies to the States, as “[f]reedom of speech and of the press
are fundamental rights which are safeguarded by the due process clause of the
Fourteenth Amendment of the Federal Constitution.” De Jonge v. Oregon, 299 U.S.
353, 364 (1937).
Over time, the Supreme Court has recognized two modes of restricting speech
that are almost always subject to heightened scrutiny—namely, content-based
restrictions and viewpoint-based restrictions. This Court notes the distinction at the
outset as it has direct implications for the State’s ability, within constitutional
bounds, to restrict educators’ speech in public university classrooms—but more on
that later.
Start with content. “[T]he First Amendment, subject only to narrow and wellunderstood exceptions, does not countenance governmental control over the content
of messages expressed by private individuals.” Turner Broadcasting Sys., Inc. v.
F.C.C., 512 U.S. 622, 641 (1994) (emphasis added). Thus, the Supreme Court has
traditionally applied “the most exacting scrutiny to regulations that suppress,
disadvantage, or impose differential burdens upon speech because of its content.”
Id. at 642. A government regulation of speech is content-based if, on its face, the law
“draws distinctions based on the message a speaker conveys.” Reed v. Town of
Gilbert, 576 U.S. 155, 163 (2015). In addition, laws that are “facially content neutral
. . . will be considered content-based regulations of speech . . . [if they] cannot be
13
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‘justified without reference to the content of the regulated speech,’ or [if they] were
adopted by the government ‘because of disagreement with the message the speech
conveys.’ ” Id. at 164 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989)).
Next, viewpoint. The Supreme Court has recognized viewpoint-based
restrictions as a distinct subset of content discrimination. “Government
discrimination among viewpoints—or the regulation of speech based on ‘the specific
motivating ideology or the opinion or perspective of the speaker’—is a ‘more
blatant’ and ‘egregious form of content discrimination.’ ” Reed, 576 U.S. at 168
(emphasis added) (quoting Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.
819, 829 (1995)); see also R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992) (“In
its practical operation, moreover, the ordinance goes even beyond mere content
discrimination, to actual viewpoint discrimination . . . . St. Paul has no such authority
to license one side of a debate to fight freestyle, while requiring the other to follow
Marquis of Queensberry rules.”) (emphasis added). With respect to viewpoint-based
restrictions on protected speech, “[t]he government must abstain from regulating
speech when the specific motivating ideology or the opinion or perspective of the
speaker is the rationale for the restriction.” Rosenberger, 515 U.S. at 829.
While the concepts overlap—viewpoint discrimination is a recognized form
of content-based restriction on speech—they are not always one and the same.
14
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“Thus, a speech regulation targeted at specific subject matter is content based even
if it does not discriminate among viewpoints within that subject matter.” Reed, 576
U.S. at 169 (emphasis added). With these principles in mind, this Court turns to the
unique role public universities play under the First Amendment and whether the
State may permissibly enforce viewpoint-based restrictions on educators’ classroom
speech.
“[S]tate colleges and universities are not enclaves immune from the sweep of
the First Amendment.” Healy v. James, 408 U.S. 169, 180 (1972). As recently as
2003, the Supreme Court reaffirmed “that given the important purpose of public
education and the expansive freedoms of speech and thought associated with the
university environment, universities occupy a special niche in our constitutional
tradition.” Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (listing cases); see also
Healy, 408 U.S. at 180–81 (“The college classroom with its surrounding environs is
peculiarly the ‘marketplace of ideas,’ and we break no new constitutional ground in
reaffirming this Nation’s dedication to safeguarding academic freedom.”).
To be clear, though, the Supreme Court has never definitively proclaimed that
“academic freedom” is a stand-alone right protected by the First Amendment.
Moreover, the Eleventh Circuit has explicitly rejected the argument that “academic
freedom” is an independent constitutional right. See Bishop v. Aronov, 926 F.2d
1066, 1075 (11th Cir. 1991) (“Though we are mindful of the invaluable role
15
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academic freedom plays in our public schools, particularly at the post-secondary
level, we do not find support to conclude that academic freedom is an independent
First Amendment right.”).12 But the Eleventh Circuit still recognized that academic
freedom remains an important interest to consider when analyzing university
professors’ First Amendment claims. See id. (“Last and somewhat countervailing,
we consider the strong predilection for academic freedom as an adjunct of the free
speech rights of the First Amendment.”). This is consistent with binding precedent,
as the Supreme Court has long recognized that “First Amendment rights, applied in
light of the special characteristics of the school environment, are available to
teachers and students.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,
506 (1969). Accordingly, “the state may not act as though professors or students
‘shed their constitutional rights to freedom of speech or expression at the [university]
gate.’ ” Meriwether, 992 F.3d at 503 (alteration added) (quoting Tinker, 393 U.S. at
506). Nor does the First Amendment “tolerate laws that cast a pall of orthodoxy over
the classroom.” Keyishian, 385 U.S. at 683.
This Court also recognizes that while “[t]he vigilant protection of
constitutional freedoms is nowhere more vital than in the community of American
schools,” Shelton v. Tucker, 364 U.S. 479, 487 (1960), these freedoms are not
12
As discussed infra, this Court concludes that the Eleventh Circuit’s balancing test in
Bishop provides the operative analytical framework for evaluating Plaintiffs’ First Amendment
claims.
16
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unlimited. Indeed, the Supreme Court has “repeatedly emphasized the need for
affirming the comprehensive authority of the States and of school officials,
consistent with fundamental constitutional safeguards, to prescribe and control
conduct in the schools.” Tinker, 393 U.S. at 507 (citations omitted).
With respect to regulating in-class speech consistent with constitutional
safeguards, this Court again pauses to distinguish between the State’s valid exercise
in prescribing a university’s curriculum and the State’s asserted interest in
prohibiting educators from expressing certain viewpoints about the content of that
curriculum. The Supreme Court has long recognized that “[a] university’s mission is
education,” and it “has never denied a university’s authority to impose reasonable
regulations compatible with that mission upon the use of its campus and facilities.”
Widmar v. Vincent, 454 U.S. 263, 267 n.5 (1981). “By and large, public education in
our Nation is committed to the control of state and local authorities.” Epperson v.
Arkansas, 393 U.S. 97, 104 (1968). To that end, universities may generally make
content-based decisions “as to how best to allocate scarce resources or ‘to determine
for itself on academic grounds who may teach, what may be taught, how it shall be
taught, and who may be admitted to study.’ ” Widmar, 454 U.S. at 278 (quoting
Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring in
result)).
17
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At the hearing on Plaintiffs’ motions, both sides recognized this authority of
the State to prescribe the content of its universities’ curriculum. 13 Indeed, this makes
intuitive sense. Of course the State has a say in which courses are taught at its public
universities. Cf. Epperson, 393 U.S. at 116 (Stewart, J., concurring in result) (“A
State is entirely free, for example, to decide that the only foreign language to be
taught in its public school system shall be Spanish. But would a State be
constitutionally free to punish a teacher for letting his students know what other
languages are also spoken in the world? I think not.”); id. at 111 (Black, J.,
concurring in result) (“It is plain that a state law prohibiting all teaching of human
development or biology is constitutionally quite different from a law that compels a
teacher to teach as true only one theory of a given doctrine. It would be difficult to
make a First Amendment case out of a state law eliminating the subject of higher
mathematics, or astronomy, or biology from its curriculum.”).
But Defendants take it a step further, arguing that the State—though
constitutionally barred from compelling professors to express the State’s chosen
belief—has an unfettered right to prohibit professors from expressing viewpoints
13
As noted above, the State is afforded much greater flexibility to control public school
curriculum. But this Court is mindful that the Supreme Court has suggested some limitation may
apply. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 402 (1923) (holding that state law criminalizing
the teaching of foreign languages to students who had not yet passed the eighth grade in public
and parochial schools—as applied to parochial school teacher who was convicted of teaching the
German language to a 10-year-old—violated the Fourteenth Amendment, because the statute was
“arbitrary and without reasonable relation to any end within the competency of the state”).
18
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with which it disagrees. Thus, according to Defendants, the content of university
curriculum may include the State’s preferred viewpoint on the subject matter of
prescribed courses and certainly excludes (at the State’s discretion) any viewpoint
the State chooses to prohibit. Defendants ground this argument in the notion that
anything professors utter in a state university classroom during “in-class instruction”
is government speech, and thus, the government can both determine the content of
that speech and prohibit the expression of certain viewpoints. See, e.g., ECF No. 52
at 19, in Case No.: 4:22cv324-MW/MAF (“The in-class instruction offered by stateemployed educators is also pure government speech, not the speech of the educators
themselves.”).
Defendants reach this conclusion by cherry-picking language, devoid of
context, from two cases in particular—namely, Rosenberger and Garcetti. In
Rosenberger, the Supreme Court held that the University of Virginia’s denial of
funding for a student group amounted to impermissible viewpoint discrimination
because the denial was based not on the general religious subject matter of the
student group’s publication, but on the “prohibited perspective” concerning the
“general subject matter.” Rosenberger, 515 U.S. at 832. In so holding, the Supreme
Court rejected the University’s reliance on the Court’s “assurance” in Widmar that
universities have the right “to make academic judgments as to how best to allocate
scarce resources.” Id. at 833. Highlighting the fact that Rosenberger involved
19
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student, not university, speech, the Supreme Court reaffirmed that the State may
“speak[]” when it determines “the content of the education it provides.” Id. The
Court added that its “holding that the University may not discriminate based on the
viewpoint of private persons whose speech it facilitates does not restrict the
University’s own speech, which is controlled by different principles.” Id. at 834.
Here, again, Defendants point to this language to conflate viewpoint with content.
They stretch the Court’s discussion concerning the “University’s own speech” to
suggest that the Court really meant that the State has complete authority to prohibit
university employees from expressing any viewpoint with which it disagrees. But
that is not the law.
Contrary to Defendants’ argument, Rosenberger did not hold or even suggest
that everything a professor utters in a university classroom is the university’s speech.
Instead, Rosenberger identifies that (1) content and viewpoint discrimination are
discrete concerns under the First Amendment; (2) universities cannot discriminate
against student speech based on viewpoint; and (3) university speech is a different
animal, “controlled by different principles.” Id. Rosenberger cites Hazelwood School
District v. Kuhlmeier, 484 U.S. 260 (1988), in support of the statement that
prohibiting viewpoint restrictions on student speech does not restrict the University’s
speech (“which is controlled by different principles”). 515 U.S. at 834. Hazelwood
addressed whether the First Amendment limits educators from exercising editorial
20
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control over student speech in school-sponsored expressive activities. But given that
Hazelwood serves as the “polestar” that guides the Eleventh Circuit’s test in Bishop
(discussed at length infra) this Court takes a brief detour to examine Hazelwood’s
contours.
Hazelwood involved a school principal’s decision to censor high school
students’ articles in a school-sponsored newspaper. The Supreme Court held that the
newspaper, along with “other expressive activities that students, parents, and
members of the public might reasonably perceive to bear the imprimatur of the
school,” may be “fairly characterized as part of the school curriculum . . . so long as
they are supervised by faculty members and designed to impart particular knowledge
or skills to student participants and audiences.” Hazelwood, 484 U.S. at 271. As
such, the Supreme Court further held that “educators do not offend the First
Amendment by exercising editorial control over the style and content of student
speech in school-sponsored expressive activities so long as their actions are
reasonably related to legitimate pedagogical concerns.” Id. at 273. But in so holding,
the Court declined to determine whether this same standard applies to schoolsponsored expressive activities at the university level. Id. n.7. Regardless, the
Eleventh Circuit reads Hazelwood to offer “no indication that the [Supreme] Court
intended to drastically rewrite First Amendment law to allow a school official to
discriminate based on a speaker’s views.” Searcey v. Harris, 888 F.2d 1314, 1319
21
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n.7 (11th Cir. 1989). Instead, “Hazelwood acknowledges a school’s ability to
discriminate based on content[,] not viewpoint.” Id. (emphasis in original).14
Turning back to Defendants’ main argument—that the First Amendment does
not protect professors’ in-class speech—they connect the professors’ speech to the
university’s speech via Garcetti v. Ceballos, 547 U.S. 410 (2006). In that case, the
Supreme Court held “that when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their communications from
employer discipline.” Garcetti, 547 U.S. at 421. Thus, “[r]estricting speech that owes
its existence to a public employee’s professional responsibilities does not infringe
any liberties the employee might have enjoyed as a private citizen.” Id. at 421–22.
“It simply reflects the exercise of employer control over what the employer itself has
commissioned or created.” Id. at 422 (citing Rosenberger, 515 U.S. at 833 (“When
the government appropriates public funds to promote a particular policy of its own
it is entitled to say what it wishes.”)).
14
The Eleventh Circuit has also recognized that other circuits read Hazelwood differently.
See, e.g., Bannon v. Sch. Dist. of Palm Beach Cnty., 387 F. 3d 1208, 1218–20 (11th Cir. 2004)
(Black, J., concurring in result) (noting that “the majority of our sister circuits to consider the
question have held Hazelwood permits viewpoint-based discrimination”). But Searcey remains
binding on this Court, and it informs the proper reading of Hazelwood in the context of this case.
See, e.g., ACLU of Fla. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1234 (11th Cir. 2009)
(Wilson, J., dissenting) (citing Searcey and noting that Hazelwood’s standard “does not, however,
permit a school board to engage in viewpoint discrimination” when it removes books from the
school system).
22
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But the Supreme Court expressly declined to “decide whether [its government
speech] analysis . . . would apply in the same manner to a case involving speech
related to scholarship or teaching.” Garcetti, 547 U.S. at 425. In so doing, the Court
recognized that “expression related to academic scholarship or classroom instruction
[arguably] implicates additional constitutional interests that are not fully accounted
for by [the] Court’s customary employee-speech jurisprudence.” Id.; see also id. at
438 (Souter, J., dissenting) (“I have to hope that today’s majority does not mean to
imperil First Amendment protection of academic freedom in public colleges and
universities, whose teachers necessarily speak and write ‘pursuant to . . . official
duties.’ ” (quoting Grutter, 538 U.S. at 329)).
Refusing to take “no” for an answer, Defendants assert this Court must apply
Garcetti’s reasoning to the professor speech at issue here, notwithstanding the
Supreme Court’s explicit refusal to do so. ECF No. 52 at 20, in Case No: 4:22cv304MW/MAF. Defendants cast the Supreme Court’s clear constitutional concerns aside
and suggest that “if Garcetti did not apply to curricular speech, it would invite
‘judicial intervention’ that is ‘inconsistent with sound principles of federalism.’ ” Id.
(quoting 547 U.S. at 423).15 In support, Defendants cite two cases from the Sixth
15
Oddly, in the name of preventing improper “judicial intervention,” Defendants ask this
Court to actively ignore what the Supreme Court did in Garcetti and the reasons that led to the
Court’s refusal to extend its analysis “to expression related to scholarship or classroom
instruction.”
23
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and Seventh Circuits, noting that these courts have applied Garcetti to in-class
instruction in the elementary and high school settings. ECF No. 52 at 20–21, in Case
No: 4:22cv304-MW/MAF (citing Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d
477, 479 (7th Cir. 2007) and Evans-Marshall v. Bd. of Educ. of Tipp. City Exempted
Vill. Sch. Dist., 624 F.3d 332 (6th Cir. 2010)). But, like the Supreme Court in
Garcetti, the Sixth Circuit in Mayer declined to determine “[h]ow much room is left
for constitutional protection of scholarly viewpoints in post-secondary education . .
. .” Mayer, 474 F.3d at 480. Indeed, the Sixth Circuit’s holding was limited to the
principle that “the first amendment does not entitle primary and secondary teachers,
when conducting the education of captive audiences, to cover topics, or advocate
viewpoints, that depart from the curriculum adopted by the school system.” Id.
Likewise, in Evans-Marshall, the Seventh Circuit distinguished the
appellant’s constitutional claim from Garcetti, noting that “[s]he is not a teacher at
a ‘public college’ or ‘university’ and thus falls outside of the group the dissent wished
to protect.” 624 F.3d at 343 (cleaned up). In concluding that Garcetti applied to
appellant’s speech as a public high school teacher, the Seventh Circuit emphasized
that different “constitutional rules applicable in higher education do not necessarily
apply in primary and secondary schools, where students generally do not choose
whether or where they will attend school.” Id. at 344.
24
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All this is to say that Defendants have identified no case, nor has this Court
identified any authority—binding or persuasive—holding that Garcetti applies to
university professors’ in-class speech such that it amounts to government speech
outside the First Amendment’s protection. To the extent Defendants urge this Court
to determine that university professors’ in-class speech is always pure government
speech, the weight of binding authority requires this Court to decline the invitation.16
In a similar call to activism, Defendants urge this Court to consider the Third
Circuit’s conclusion that “a public university professor does not have a First
Amendment right to decide what will be taught in the classroom” as persuasive
authority for deciding that a university professors’ in-class speech is never
constitutionally protected. ECF No. 52 at 21, in Case No: 4:22cv304-MW/MAF
(quoting Edwards v. Calif. Univ. of Penn., 156 F.3d 488, 491 (3d Cir. 1998) (Alito,
J.)). In finding that the university’s actions in Edwards “concerned the content of the
16
Defendants essentially ask this Court to engage in “judicial activism,” since accepting
Defendants’ argument would require this Court to substitute binding precedent with Defendants’
policy preference. See Adam J. White, Beware the ABA’s Own Version of ‘Judicial Activism,’
Washington Examiner (Oct. 31, 2017, 4:14 PM), https://www.washingtonexaminer.com/weeklystandard/beware-the-abas-own-version-of-judicial-activism (“Unaccountable judges sometimes
mistake their own policy preferences for the proper rule of decision.”); Ilya Shapiro, The Impact
of Judicial Activism on the Moral Character of Citizens, The Federalist Society (Oct. 28, 2010),
https://fedsoc-cms-public.s3.amazonaws.com/update/pdf/e4ECllG7j3akwgbb2OauuGjHpd6wYP
r0YUoKErVa.pdf (“Activism is doing something that is not supposed to be the judicial role or not
being faithful to the Constitution . . . .); James C. Dunlop & Tara A. Fumerton, The Illinois
Supreme Court: Judicial Activism, with Limits, The Federalist Society (Oct. 15, 2004, 3:18 PM),
https://fedsoc-cms-public.s3.amazonaws.com/update/pdf/XSjtdj50gN9djeM731gBPu0qzuoMed
ExzQUZRrPh.pdf (“[T]he judicial role does not properly contain within it a ‘legislative’ or
‘policy-making’ function.”). But unlike Defendants, this Court prefers judicial modesty to
activism.
25
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education it provides,” the Third Circuit held “that the First Amendment does not
place restrictions on a public university’s ability to control its curriculum.” Edwards,
156 F.3d at 491. This holding relied in large part on Bradley v. Pittsburgh Board of
Education, 910 F.2d 1172 (3d Cir. 1990). There, the Third Circuit held that a public
high school teacher had no right “to choos[e her] own curriculum or classroom
management techniques in contravention of school policy or dictates,” because “her
in-class conduct is not [protected by the First Amendment].” Id. at 1176.
Other courts have also held that university professors do not have a First
Amendment right to control curriculum content. See, e.g., Clark v. Holmes, 474 F.2d
928, 930 (7th Cir. 1972) (affirming district court’s conclusion that professor’s
conduct was not protected by First Amendment where professor stated, among other
things, that he had agreed with his students to teach more on “sex education and
mental health . . . and only ‘touch on’ the other topics covered by the assigned text
and the course syllabus,” which was at odds with the university’s “established
curricular contents”). But as explained above, this is hardly a groundbreaking
proposition. Indeed, Bradley relies on Clark in holding that a public high school
teacher’s “in-class conduct is not [protected under the First Amendment].” Bradley,
910 F.2d at 1176 (citing Clark, 474 F.2d 928).
In short, these cases support the general proposition that the State is, of course,
permitted to determine the content of its public school curriculum. A professor
26
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cannot decide to teach something entirely different or do an end-run around the
prescribed curriculum by paying lip service to the subject they are supposed to teach
and then spend the rest of class time instructing on something else. Defendants,
however, ask this Court to read these cases to conflate the State’s right to make
content-based choices in setting the public school curriculum with unfettered
discretion in limiting a professor’s ability to express certain viewpoints about the
content of the curriculum once it has been set.
But that is not what these cases hold, nor does their reasoning extend so far.
Although then-Judge Alito stated “that a public university professor does not have a
First Amendment right to decide what will be taught in the classroom,” he did so in
the context of determining whether the First Amendment protects a professor’s
“choice of curriculum materials and the content and subjects of his classes.”
Edwards, 156 F.3d at 491. Given his broad pronouncement, this Court understands
why Defendants would cherry-pick it from Edwards. But then-Judge Alito’s concern
was with a professor who sought to change the content of his course from one that
“initially focused on how teachers can effectively use various classroom tools, such
as projection equipment, chalkboards, photographs, and films,” to the professor’s
chosen syllabi that “included a new emphasis on issues of bias, censorship, religion,
and humanism . . . .” Id. at 489.
27
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Edwards is fairly read to affirm the State’s ability to control the curriculum in
public schools. At most, then-Judge Alito’s reasoning implicitly extends to
suppression of certain viewpoints from a professor who teaches the approved
curriculum. But this Court need not determine the correct way to read Edwards, as
it is bound not by the Third Circuit’s holdings—express or implicit—but by the
Eleventh Circuit’s holdings. And as discussed on the record at the hearing in this
case, then-Judge Alito distinguished his holding from the Eleventh Circuit’s opinion
in Bishop, describing the Eleventh Circuit as “finding that a public university’s
restrictions on a professor’s in-class speech ‘implicated First Amendment freedoms.’
” Edwards, 156 F.3d at 491 (“But see Bishop v. Aronov, 926 F.2d 1066, 1075 (11th
Cir. 1991)”); see also THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION R.1.2(c), at
63 (Columbia L. Rev. Ass’n et al. eds., 21st ed. 2020) (defining but see as a signal
that indicates contradiction when the “[c]ited authority clearly supports a proposition
contrary to the main proposition”). Accordingly, then-Judge Alito recognized that
the Eleventh Circuit had reached a different conclusion—that if Bishop stands for
anything, it is that the First Amendment places some limit on the State’s ability to
prohibit what a professor may say in a university classroom.
The question remains—how is this Court to evaluate Plaintiffs’ First
Amendment claims? In addition to the Supreme Court’s binding pronouncement that
the First Amendment does not tolerate laws that cast a pall of orthodoxy over the
28
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classroom, Keyishian, 385 U.S. at 683, the Eleventh Circuit and its predecessor have
recognized that the First Amendment protects classroom discussions at the
secondary and university levels. As early as 1980, the Fifth Circuit held that a high
school teacher’s “classroom discussion is protected activity” under the First
Amendment. Kingsville Indep. Sch. Dist. v. Cooper, 611 F.2d 1109, 1114 (5th Cir.
1980). 17 The Eleventh Circuit cited Kingsville with approval as recently as 2017,
while also noting that Garcetti has since altered the analysis with respect to
regulating public-employee speech more generally. See Wollschlaeger v. Governor,
Fla., 848 F.3d 1293, 1311 n.6 (11th Cir. 2017) (en banc) (Jordan, J.). And as recently
as 2019, the Fifth Circuit affirmed that Kingsville remains good law and that
“academic freedom is ‘a special concern of the First Amendment, which does not
tolerate laws that cast a pall of orthodoxy over the classroom.’ ” See Buchanan v.
Alexander, 919 F.3d 847, 852 (5th Cir. 2019) (quoting Keyishian, 385 U.S. at 603).
Further, the Eleventh Circuit acknowledged in Bishop that the First
Amendment protects university professors’ in-class speech and sought to fashion a
test that would appropriately balance the speaker’s First Amendment rights with the
university’s special interests in enforcing some limitations on that speech. 926 F.2d
1066. Recognizing the university could not restrict a professor’s in-class speech
17
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
29
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without a “suffic[ient] . . . interest,” the Eleventh Circuit struck a “somewhat
amorphous” balancing test, drawing from the Supreme Court’s analysis in
Hazelwood. Id. at 1074. Ultimately, the balance involves “a case-by-case inquiry
into whether the legitimate interests of the authorities are demonstrably sufficient to
circumscribe a teacher’s speech.” Id. (quoting Mailloux v. Kiley, 448 F.2d 1242, 1243
(1st Cir. 1971)). And this Court must follow Bishop’s balancing test because the
Eleventh Circuit has not yet reversed itself, en banc, and the Supreme Court
explicitly declined to extend its employee-speech analysis in Garcetti to “speech
related to scholarship or teaching.” In short, two things are clear: (1) the First
Amendment protects university professors’ in-class speech and (2) Bishop remains
the binding authority guiding this Court’s analysis of Plaintiffs’ speech claims.
Next, this Court must determine whether a different analytical framework
applies to the students’ claims as compared to the professors’ claims. As discussed
on the record at the hearing and explained in more detail below, the Professor
Plaintiffs’ First Amendment claims and the Student Plaintiffs’ First Amendment
claims—though called by different names—are coextensive based on the context of
this case. Thus, this Court applies the same analytical framework to both.
The Student Plaintiffs claim that the IFA infringes on their First Amendment
right to receive information and ideas, arguing that the IFA’s viewpoint-based
restrictions on professors’ in-class speech unconstitutionally limit the information
30
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they can receive from professors during class instruction. Both sides agreed at the
hearing on Plaintiffs’ motions that the Student Plaintiffs’ right-to-receiveinformation claims are coextensive with the Professor Plaintiffs’ free speech claims,
given that the information the students claim the right to receive is the same
information that their professors wish to share with them. See Tr. at 25–28. Thus, in
the context of this case, a university student would not have an independent First
Amendment right to receive information that a university professor does not have a
First Amendment right to share. This Court agrees with the parties and concludes
that the Student Plaintiffs’ right-to-receive-information claims are coextensive with
the Professor Plaintiffs’ free speech claims and, thus, that the Student Plaintiffs’
claims are properly analyzed under Bishop as discussed infra.18
To start, the right to receive information “is an inherent corollary of the rights
of free speech and press that are explicitly guaranteed by the Constitution, in two
senses.” Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S.
18
To be clear, this Court is not stating that one individual’s First Amendment right to
receive information is always coextensive with another’s right to speak. Rather, this Court’s
conclusion is more limited—namely, within the context of this case, the students’ right to receive
information is coextensive with the university professors’ asserted right to free speech with respect
to their in-class speech.
This Court’s analysis would likely differ if the IFA restricted university students’ access to
information and ideas beyond its limitations on professors’ in-class speech. For example, if the
State imposed campus-wide bans on academic literature that advocated viewpoints with which the
State disagreed, or if it limited on-campus access to internet sources that advocated prohibited
viewpoints, then the students’ First Amendment claims would not be coextensive with university
professors’ free speech claims. This is because the students’ injuries in those two examples would
flow from more than just the restriction imposed on their professors’ speech.
31
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853, 867 (1982) (plurality opinion) (emphasis added). 19 In the first sense, the First
Amendment right to receive information “flows ineluctably from the sender’s right
to send them . . . . ‘The dissemination of ideas can accomplish nothing if otherwise
willing addressees are not free to receive or consider them.’ ” Id. (quoting Lamont v.
Postmaster Gen., 381 U.S. 301, 308 (1965)). In the second sense, the First
Amendment right to receive information “is a necessary predicate to the recipient’s
meaningful exercise of his own rights of speech, press, and political freedom.” Id.
In short, the right to receive information comes from both the sender’s right to
provide it and the receiver’s own rights under the First Amendment.
As noted above, the Student Plaintiffs claim a First Amendment right to
receive the information and ideas that, but for the viewpoint-based prohibitions of
the IFA, university professors would provide during class instruction. Under the
IFA’s plain language, those who provide “training or instruction,” such as university
professors (or the “senders,” as described in Pico), are restricted from sharing
viewpoints contrary to the IFA. See § 1000.05(4)(a), Fla. Stat. (2022) (“It shall
constitute discrimination . . . to subject any student or employee to training or
instruction that espouses, promotes, advances, inculcates, or compels such student
or employee to believe any of the following concepts . . . .”). Aside from the
19
This Court is aware that Pico is a plurality opinion and, thus, is not binding precedent.
However, this Court finds persuasive its characterization of the First Amendment right to receive
information and ideas.
32
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limitations placed on professor speech, the IFA does not otherwise limit the ability
of students (or the “recipients,” as described in Pico) to access the viewpoints that
professors are prohibited from expressing during instruction. Id. In other words, the
IFA does not directly impede the “second sense” of the right to information as
described in Pico: the “recipient’s” own exercise of their individual rights under the
First Amendment. It logically follows that a university student’s First Amendment
right to receive a professor’s viewpoints should flow from that professor’s First
Amendment right to express those viewpoints, for the former cannot be said to exist
without the latter. If both claims were viewed and analyzed independently under
facts such as this, that analysis could potentially lead to an illogical result—namely,
that university students have an independent right to viewpoints that their professors
do not have a right to share.
One final point of clarification. This Court notes that of the two Student
Plaintiffs—Johanna
Dauphin
and
Samuel
Rechek—Ms.
Dauphin’s
First
Amendment claim differs from that of Mr. Rechek. Specifically, Ms. Dauphin has
not shown that at least one of her professors will have their speech chilled or will be
forced to self-censor because of the IFA. Thus, her claim for access to information
and ideas is not coextensive with any Professor Plaintiff. Mr. Rechek, on the other
hand, has demonstrated that he intends to enroll in Professor Novoa’s course in the
spring and that Professor Novoa will self-censor because of the IFA. Accordingly, as
33
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discussed in this Court’s standing analysis below, Ms. Dauphin has not demonstrated
standing for purposes of a preliminary injunction.
Next this Court addresses the merits of Plaintiffs’ motions for preliminary
injunction.
III
A district court may grant a preliminary injunction if the movant shows: (1) it
has a substantial likelihood of success on the merits; (2) it will suffer irreparable
injury unless the injunction issues; (3) the threatened injury to the movant outweighs
whatever damage the proposed injunction may cause the opposing party; and (4) if
issued, the injunction would not be adverse to the public interest. Siegel v. LePore,
234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). Although a “preliminary injunction
is an extraordinary and drastic remedy,” it should be granted if “the movant ‘clearly
carries the burden of persuasion’ as to the four prerequisites.” United States v.
Jefferson Cnty., 720 F.2d 1511, 1519 (11th Cir. 1983) (quoting Canal Auth. v.
Callaway, 489 F.2d 567, 573 (5th Cir. 1974)). No one factor, however, is controlling;
this Court must consider the factors jointly, and a strong showing on one factor may
compensate for a weaker showing on another. See Fla. Med. Ass’n, Inc. v. U.S. Dep’t
of Health, Educ., & Welfare, 601 F.2d 199, 203 n.2 (5th Cir. 1979). Finally,
“[a]lthough the initial burden of persuasion is on the moving party, the ultimate
burden is on the party who would have the burden at trial.” FF Cosmetics FL, Inc.
34
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v. City of Miami Beach, 866 F.3d 1290, 1298 (11th Cir. 2017) (citing Edenfield v.
Fane, 507 U.S. 761, 770 (1993)). Applying this standard, this Court first considers
whether Plaintiffs have established a likelihood of success on the merits.
IV
This Court begins with whether Plaintiffs have shown a substantial likelihood
of success on the merits. This Court addresses this factor first because, typically, if
a plaintiff cannot “establish a likelihood of success on the merits,” this Court “need
not consider the remaining conditions prerequisite to injunctive relief.” Johnson &
Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1247 (11th Cir.
2002). And, because standing is always “an indispensable part of the plaintiff’s
case,” this Court begins its merits analysis with standing. Lujan v. Defs. of Wildlife,
504 U.S. 555, 561 (1992).
The “affirmative burden of showing a likelihood of success on the merits . . .
necessarily includes a likelihood of the court’s reaching the merits, which in turn
depends on a likelihood that [a] plaintiff has standing.” Nat’l Wildlife Fed’n v.
Burford, 835 F.2d 305, 328 (D.C. Cir. 1987) (Williams, J., concurring and
dissenting). Any evaluation of Plaintiffs’ claims thus necessitates an inquiry into
Plaintiffs’ ability to bring them. Over time, the Supreme Court has developed a
three-part test for determining when standing exists. Under that test, a plaintiff must
show (1) that they have suffered an injury-in-fact that is (2) traceable to the
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defendant and that (3) can likely be redressed by a favorable ruling. See Lujan, 504
U.S. at 560–61. And “where a plaintiff moves for a preliminary injunction, the
district court . . . should normally evaluate standing ‘under the heightened standard
for evaluating a motion for summary judgment.’ ” Waskul v. Washtenaw Cnty. Cmty.
Mental Health, 900 F.3d 250, 255 (6th Cir. 2018) (quoting Food & Water Watch,
Inc. v. Vilsack, 808 F.3d 905, 912 (D.C. Cir. 2015)); see also Cacchillo v. Insmed,
Inc., 638 F.3d 401, 404 (2d Cir. 2011). Thus, “a plaintiff cannot ‘rest on such mere
allegations [as would be appropriate at the pleading stage], but must set forth by
affidavit or other evidence specific facts, which for purposes of the summary
judgment motion will be taken to be true.’ ” Cacchillo, 638 F.3d at 404 (some
alteration in original) (quoting Lujan, 504 U.S. at 561).
A
Before applying the test for standing to Plaintiffs’ claims, this Court starts with
a brief description of the facts and evidence before it.
Starting with Pernell, Plaintiff LeRoy Pernell is a Professor of Law at Florida
A&M University College of Law. ECF No. 13-1 ¶¶ 3–4, in Case No.: 4:22cv304MW/MAF (Pernell Declaration). Professor Pernell has over forty years of
experience in higher education and teaches primarily in the areas of criminal
procedure, torts, juvenile law, and race and the law. Id. ¶ 4. He expects to teach a
class in the 2023 spring semester that focuses on the role of race in criminal
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procedure, using a casebook he authored that explains how racism is embedded in
the criminal justice system. Id. ¶ 16, 22. Professor Pernell asserts that the IFA
prohibits him from teaching from his casebook and that teaching his criminal
procedure course risks violating the IFA. Id. ¶ 22, 28.
Plaintiff Dana Thompson Dorsey is an Associate Professor of Educational
Leadership and Policy Studies at the University of South Florida. ECF No. 13-2 ¶ 3,
in Case No.: 4:22cv304-MW/MAF (Dorsey Declaration). Professor Dorsey has
worked in higher education for over fifteen years and focuses on education law and
policy—specifically, she examines local, state, and federal laws and their impact on
“minoritized students” 20 and communities at all educational levels. Id. ¶ 4. She
teaches several classes related to her expertise in education law, including School
Law and Critical Race Studies: Research, Policy, and Praxis. Id. ¶ 25. Professor
Dorsey will teach a critical race studies course in the 2023 spring semester. When
teaching her critical race studies course, she typically assigns her own articles that
discuss white privilege and critique the concept of colorblindness. Id. Professor
Dorsey fears that she could face discipline from USF related to teaching her course
on critical race studies. Id ¶ 57.
Plaintiff Sharon Austin has worked as a professor at the University of Florida
since 2001. She currently serves as a Professor of Political Science. ECF No. 13-3 ¶
20
This is Professor Dorsey’s word choice.
37
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3, in Case No.: 4:22cv304-MW/MAF (Austin Declaration). Professor Austin teaches
several courses rooted in her extensive background in American politics, including
Politics of Race, Urban Politics, Black Horror and Social Justice, and African
American Politics and Policy. Id. ¶¶ 27–32. As part of these courses, Professor
Austin endorses critical race theory and assigns reading materials that advocate for
affirmative action. Id. ¶¶ 40–43. To avoid discipline under the IFA, Professor Austin
plans to self-censor. Id. ¶ 44.
Plaintiff Shelley Park is a tenured Professor of Philosophy and Cultural
Studies at the University of Central Florida. ECF No. 13-4 ¶ 3, in Case No.:
4:22cv304-MW/MAF (Park Declaration). Professor Park has taught in higher
education for over thirty-five years. Id. Currently, she teaches four undergraduate
courses: (1) Feminist Theories; (2) Theories of Sex and Gender in the Humanities;
(3) Race and Technology; and (4) Introduction to Philosophy. Id. In some of her
courses, Professor Park teaches that merit, objectivity, and colorblindness function
to solidify systems of oppression as foundational truths rather than academic
theories. Id. ¶ 3. Fearing disciplinary action for violating the IFA, Professor Park
feels the need to self-censor. Id. ¶ 34.
Plaintiff Jennifer Sandoval is an Associate Professor at the Nicholson School
of Communication and Media at the University of Central Florida. ECF No. 13-5 ¶
3, in Case No.: 4:22cv304-MW/MAF (Sandoval Declaration). Professor Sandoval
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has taught interpersonal, intercultural, and gender communication at UCF since
2011. Currently, Professor Sandoval teaches a graduate level seminar titled
Intercultural Communication, which “explores ways in which identity and culture
affect communication in various contexts.” Id. ¶ 4. Professor Sandoval’s seminar
includes sections on “whiteness” and race discrimination in academia. Id. ¶ 13.
Professor Sandoval believes she may be disciplined for expressing viewpoints that
are prohibited under the IFA. Id.
Plaintiff Russell Almond has worked as an associate professor of
Measurement and Statistics in the Department of Educational Psychology and
Learning Systems at Florida State University since 2010. ECF No. 13-6 ¶ 3, in Case
No.: 4:22cv304-MW/MAF (Russell Declaration). Catering to students pursuing
doctorates and master’s degrees, Professor Almond currently teaches Basic
Descriptive and Inferential Statistics Applications, Missing Data Analysis, Bayesian
Data Analysis, and Educational Psychology Colloquium. Id. ¶ 9. Professor Almond
encourages students to consider systemic discrimination when evaluating the effects
of race in statistical models, in addition to discussing his own white privilege in a
class handout. Id. ¶ 20. Professor Almond asserts that his speech will be chilled as a
result of the IFA. Id. ¶ 32.
Plaintiff Dr. Marvin Dunn is a Professor Emeritus of Psychology at Florida
International University. ECF No. 13-7 ¶ 3, in Case No.: 4:22cv304-MW/MAF
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(Dunn Declaration). Dr. Dunn taught psychology for thirty-four years with a focus
on “racial/ethnic minority communities and the societal and economic inequities
facing those communities.” Id. In his retirement from FIU, Dr. Dunn continues to
interact with FIU students and staff on a Black history bus tour of Miami. Id. ¶ 10.
Dr. Dunn asserts that the IFA impacts his ability to instruct on institutionalized
racism and that he will be forced to self-censor as a result. Id. ¶ 13–14.
Plaintiff Johana Dauphin is a student at Florida State University. ECF No. 138 ¶ 3, in Case No.: 4:22cv304-MW/MAF (Dauphin Declaration). Ms. Dauphin is
currently enrolled in a class titled Race and Minority Relations which focuses on
“how racial and ethnic groups interact with and are affected by social institutions
like the mass media, the political economy, the education system, the environment,
and the criminal and civil justice system.” Id. ¶ 18. She is also taking Religion, Race
and Ethnicity, which “examines the intersection of race and religion, and religious
beliefs in a cross-cultural context.” Id. ¶ 20. Ms. Dauphin asserts that she will not be
able to get the full benefit of these courses because the IFA will force her professors
to refrain from advancing certain concepts. Id. ¶ 19, 21, 23.
Next, as to the Novoa Plaintiffs, Plaintiff Adriana Novoa is an Assistant
Professor in the Department of History at the University of South Florida, where she
has taught for the past 21 years. ECF No. 1 at 92, in Case No.: 4:22cv324-MW/MAF
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(Verification of Adriana Novoa); id. ¶ 10.21 She teaches multiple courses, including
Science in Cultural Context, History of Sports from National to Global Contexts,
and Modern Latin America. Id. ¶ 11. But for the IFA, Professor Novoa’s class
instruction would include several materials that promote some of the concepts at
issue. See, e.g., id. ¶¶ 176, 182–83, 190–91, 196, 202–14. Professor Novoa asserts
she will continue to refrain from using these materials in her courses out of fear of
violating the IFA. See, e.g., id. ¶¶ 149–51, 154–56.
Plaintiff Samuel Rechek is an undergraduate student enrolled at the University
of South Florida. Id. ¶ 14. He is the president of the First Amendment Forum at the
University of South Florida (First Amendment Forum), and he plans to take
Professor Novoa’s Science in Cultural Context course in the spring 2023 semester.
Id. at 93 (Verification of Samuel Rechek); see also id. ¶¶ 14, 16. Plaintiff Rechek
asserts the challenged statute and regulation violate his right to receive information
under the First Amendment. He plans to enroll in Professor Novoa’s Science in
Cultural Context course when registration for the Spring 2023 semester opens on
October 31, 2022. Id. ¶ 226. He is a willing listener to the viewpoints that Professor
Novoa, but for the IFA, would advance in her course. Id. ¶¶ 229–30.
21
Although the Pernell Plaintiffs filed declarations setting out their sworn evidence, the
Novoa Plaintiffs set out their evidence in the form of verified factual allegations in the verified
complaint.
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Plaintiff First Amendment Forum has been a registered student organization
at the University of South Florida since 2020. Id. ¶ 16. The organization’s mission
is to ensure students have the right to speak their minds. Id. To that end, the
organization has discussions on “hot-button issues, advocate[s] for student rights
policy reform, host[s] events and workshops to involve the student body with their
rights, and help[s] cultivate a community that embraces the merit of the First
Amendment.” Id. Each of the organization’s five executive committee members is
an undergraduate student enrolled at the University of South Florida. Id. The First
Amendment Forum asserts that the IFA limits its members’ ability to hear from
faculty whose views may be contrary to the Act. Id. ¶ 17.
The Pernell Plaintiffs sue the Board of Governors and its members in their
official capacities; Manny Diaz, Jr., in his official capacity as the Commissioner of
the Florida Board of Education; the University of Florida Board of Trustees; the
Florida International University Board of Trustees; the Florida A&M Board of
Trustees; the Florida State University Board of Trustees; the University of Central
Florida Board of Trustees; and the University of South Florida Board of Trustees.
See ECF No. 1 at ¶¶ 18–30, in Case No.: 4:22cv324-MW/MAF. The Novoa Plaintiffs
sue the members of the Board of Governors in their official capacities; Manny Diaz,
Jr., in his official capacity as the Commissioner of the Florida Board of Education;
Julie Leftheris, in her official capacity as the Inspector General of the Board of
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Governors; and the University of South Florida Board of Trustees and its members
in their official capacities. ECF No. 1 at ¶¶ 34–47, in Case No.: 4:22cv304MW/MAF. They assert the Defendants all play a role in enforcing the State of
Florida’s prohibition on certain viewpoints in college classrooms, which, they allege,
violates their constitutional rights.
B
Even if the parties treat standing as an afterthought, this Court has an
independent obligation to ensure that standing, as “perhaps the most important”
jurisdictional doctrine, is established. See FW/PBS, Inc. v. City of Dallas, 493 U.S.
215, 231 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)). 22 Standing “is
not dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996). “ ‘[A] plaintiff
must demonstrate standing for each claim he seeks to press’ and ‘for each form of
relief’ ” that is sought. Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008)
(quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). Here, this
means that this Court must address Plaintiffs’ standing to pursue an injunction for
both their First Amendment and Fourteenth Amendment claims.
22
This Court takes that obligation seriously. For example, in another challenge to the IFA,
this Court found that plaintiffs, including teachers and a student at the K-12th grade level, failed
to establish standing for purposes of a preliminary injunction. Falls v. DeSantis, Case No.
4:22CV166-MW/MJF, 2022 WL 2303949, at *10 (N.D. Fla. June 27, 2022).
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In addition to ensuring that they have standing to pursue each claim, Plaintiffs
must also demonstrate standing for each provision of the statute they challenge.
CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1271–72 (11th Cir.
2006). Put another way, Plaintiffs must demonstrate how their speech arguably
implicates each way the IFA’s prohibition could be violated. This provision-byprovision analysis applies to both facial and as-applied challenges. In other words,
even if plaintiffs bring a facial challenge to a statute, they must still show a personal
injury in fact under each provision of the challenged statute. Id.
Both the Novoa and Pernell Plaintiffs seek a preliminary injunction barring
enforcement of section 1000.05(4), Florida Statutes (2022), and Regulation 10.005,
claiming these laws impermissibly discriminate based on viewpoint in violation of
the First Amendment and are void for vagueness under the Fourteenth Amendment.23
This Court will address Plaintiffs’ standing to pursue an injunction for both claims.
1
Before going through Plaintiffs’ individual submissions, this Court will clarify
what they must show to demonstrate an injury. When First Amendment rights are
involved, courts apply the injury-in-fact requirement most loosely, “lest free speech
be chilled even before the law or regulation is enforced.” Harrell v. Fla. Bar, 608
23
The Novoa Plaintiffs also seek to enjoin section 1000.05(4), Florida Statutes on
overbreadth grounds. ECF No. 19 at 33, in Case No: 4:22cv324-MW/MAF. This Court need not
address standing for their overbreadth challenge because it does not reach the merits of this claim.
44
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F.3d 1241, 1254 (11th Cir. 2010). “When a plaintiff has stated that he intends to
engage in a specific course of conduct ‘arguably affected with a constitutional
interest,’ . . . he does not have to expose himself to enforcement to be able to
challenge the law. ‘If the injury is certainly impending, that is enough.’ ” Taylor v.
Polhill, 964 F.3d 975, 980 (11th Cir. 2020) (quoting ACLU v. Fla. Bar, 999 F.2d
1486, 1492 (11th Cir. 1993)). A person “c[an] bring a pre-enforcement suit when he
‘has alleged an intention to engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, and there exists a credible threat
of prosecution[.]’ ” Wollschlaeger, 848 F.3d at 1304 (quoting Susan B. Anthony List
v. Driehaus, 573 U.S. 149, 159 (2014)).
The constitutional interest implicated in this case—Plaintiffs’ protected
speech—is burdened in two ways: (1) some Plaintiffs risk being disciplined by their
universities, yet will speak anyways, and (2) some Plaintiffs plan to self-censor to
avoid discipline. Both Plaintiffs’ intended speech and self-censorship show an intent
to engage in an act “arguably affected with a constitutional interest” under Driehaus
and Wollschlaeger. To be sure, a pre-enforcement First Amendment injury is
typically realized by evidence of self-censorship, and for these injuries, “[t]he
fundamental question . . . is whether the challenged policy ‘objectively chills’
protected expression.” Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1120 (11th
Cir. 2022). But intending to defy the government’s speech restriction despite risk of
45
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enforcement is no less cognizable a pre-enforcement injury than self-censorship. To
find otherwise would further encourage would-be plaintiffs to self-censor lest they
strip themselves of standing. This would undermine the point of permitting preenforcement challenges under the First Amendment.
Both Plaintiffs and Defendants misconstrue the requirements for standing
here. The Pernell Plaintiffs insist that, because they bring a facial challenge to the
IFA, they have standing to challenge the entire act. ECF No. 55 at 16–17, in Case
No: 4:22cv304-MW/MAF. 24 It is well established, however, that even for facial
challenges, plaintiffs must show an injury under each provision of the challenged
statute. See Harrell, 608 F.3d at 1254.25 Even accepting that they must show a
specific injury, the Pernell Plaintiffs misunderstand the standard for a selfcensorship injury. Their arguments and declarations repeat the notion that some
professors are afraid even to discuss the eight concepts in class lest they violate the
IFA. See, e.g., ECF No. 55 at 17, in Case No: 4:22cv304-MW/MAF; ECF No. 13-3
24
The parties in both Pernell and Novoa incorporate the arguments on standing from the
briefing on the respective motions to dismiss. Accordingly, this Court cites to those briefs in
addressing the parties’ arguments on standing for purposes of the motions for preliminary
injunction. But this Court reiterates that Plaintiffs bear a heightened burden to demonstrate
standing at the preliminary-injunction stage, and this Court must hold them to this burden in
resolving their motions for preliminary injunction. This Court will address Defendants’ standing
arguments separately under the motion-to-dismiss standard when it resolves the pending motions
to dismiss.
25
Harrell’s holding on standing, as well as the Supreme Court’s decision in Davis and the
Eleventh Circuit’s decision in CAMP, are discussed in more detail infra.
46
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at ¶ 40, in Case No: 4:22cv304-MW/MAF. 26 As this Court explains later, the IFA
is vague and imprecise, but at least one thing is clear: mere discussion of the eight
concepts, without promotion or compulsion, 27 does not violate the IFA. See §
1000.05(4)(a), Fla. Stat. (2022). The Pernell Plaintiffs’ injuries are limited to the
concepts that they arguably promote or compel belief in.28
The Novoa Plaintiffs recognize that there could be a narrower approach to
standing. See ECF No. 38 at 14–17, in Case No: 4:22cv324-MW/MAF. They cite
the Eleventh Circuit’s decision in CAMP to criticize Defendants’ “cramped and
narrow view of standing . . . .” Id. at 18. And they imply that because the
“overbreadth doctrine allows [them] to demonstrate the chilling effect of the law
26
The Pernell Plaintiffs’ declarations are also rife with descriptions of their feelings and
impressions of the IFA. These musings do nothing to help this Court determine if it has jurisdiction
over this case.
27
The IFA prohibits instructors from subjecting a student or employee to a training or
instruction that “espouses, promotes, advances, inculcates, or compels such student or employee
to believe” any of the eight concepts. § 1000.05(4)(a), Fla. Stat. (2022). This Court uses the terms
“promotion” and “compulsion” as shorthand for the IFA’s full list of prohibited actions. But by
using these terms, this Court does not mean to suggest that the terms are synonymous (or even
similar). This Court simply uses these terms for ease of reference.
28
The Pernell Plaintiffs’ failure to show an intent to promote or compel belief in all eight
concepts for each professor contrasts with the showing made in a related case before this Court. In
Honeyfund.com, Inc. v. DeSantis, --- F. Supp. 3d ---, 2022 WL 3486962 (N.D. Fla. 2022), Plaintiff
Collective Concepts, LLC submitted a declaration detailing how its proposed speech arguably ran
afoul of each of the IFA’s eight concepts. And because a single plaintiff with standing satisfies
Article III’s case or controversy requirement, see Rumsfeld v. FAIR, 547 U.S. 47, 53 n.2 (2006),
the Honeyfund Plaintiffs demonstrated standing to challenge the IFA’s viewpoint restrictions for
private employers as to all eight concepts. The Pernell Plaintiffs’ declarations lack this clarity.
And no Pernell Plaintiff has established standing to challenge all eight concepts under the IFA.
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without pleading every possible application,” they need not show a personal injury
under each of the IFA’s eight concepts. See id. at 18–19.
However, the Eleventh Circuit squarely rejected this argument when it comes
to showing an injury for purposes of Article III standing. “The overbreadth doctrine
does not relieve a plaintiff of the burden to prove constitutional standing, which
requires that ‘the plaintiff himself has suffered some threatened or actual injury
resulting from the putatively illegal action.’ ” CAMP, 451 F.3d at 1270 (quoting
Warth v. Seldin, 422 U.S. 490, 498 (1975)). Like the Pernell Plaintiffs, the Novoa
Plaintiffs cannot circumvent binding precedent that requires this Court to examine
the injury shown by each plaintiff for each challenged statutory provision.
Not to be excluded, Defendants exaggerate the required showing for an actual
injury. Defendants insist that a Professor Plaintiff’s intended promotion or
compulsion to believe one or more of the eight concepts must be a near-perfect
match for the IFA’s eight concepts. See ECF No. 51-1 at 18–19, in Case No:
4:22cv304-MW/MAF; ECF No. 33-1 at 9, in Case No: 4:22cv324-MW/MAF. For
example, in Pernell, Defendants contend that none of the Plaintiffs promote or
compel belief in the third concept because they do not “clearly state an intention to
teach that ‘[a] person’s moral character or status as either privileged or oppressed is
necessarily determined by his or her race, color, national origin, or sex.’ ” ECF No.
48
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51-1 at 19, in Case No: 4:22cv304-MW/MAF (quoting § 1000.05(4)(a)3., Fla. Stat.
(2022)).
But this argument overstates the showing required for an injury in a preenforcement First Amendment challenge, even at the preliminary injunction stage.29
Despite Defendants’ insistence that the Professor Plaintiffs’ proposed viewpoints
must serve as a mirror image for each prohibited viewpoint, the proposed speech
needs only to arguably run afoul of the prohibition. See Wollschlaeger, 848 F.3d at
1304.
In Pernell, for example, Professor Dorsey’s proposed speech does just that. In
her class, she assigns several of her own articles that acknowledge the existence of
white privilege, ECF No. 13-2 ¶ 43, in Case No: 4:22cv304-MW/MAF (Dorsey
Declaration), arguably promoting the third concept that a person’s privilege is
determined by their race. While a professor assigning their own article endorsing a
prohibited viewpoint is not as clear of a “promotion” or “compulsion” as, say, a
professor reading prohibited viewpoints verbatim in class as their own opinion, the
former would still arguably run afoul of the IFA. Demonstrating a pre-enforcement
First Amendment injury does not require an intent to engage in an act that is
unquestionably proscribed.
29
As this Court noted supra, Plaintiffs bear a heightened burden to prove standing for
purposes of a preliminary injunction.
49
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So what is the standard? The Supreme Court’s standing analysis in Davis is
instructive. There, the Court held that a party challenging political campaign
regulations—namely, disclosure requirements and self-financing contribution
limits—must show an injury under each provision to demonstrate standing. See
Davis, 554 U.S. at 734. The Supreme Court in Davis did not explain, however, what
qualifies as a separate statutory provision requiring a separate injury.30
The Eleventh Circuit’s decisions in CAMP and Harrell fill in this gap. These
decisions explain that standing for each challenged statutory provision must be
analyzed at a granular level. Accordingly, this Court turns to these cases to guide its
analysis, starting with CAMP.
30
The Pernell Plaintiffs’ argument about the interrelatedness of the prohibited viewpoints,
ECF No. 55 at 16, in Case No: 4:22cv304-MW/MAF, is well-taken if ultimately mistaken. Here,
the IFA’s eight concepts are closely related. While each concept purportedly targets a form of
discrimination, they all deal generally with the view that race consciousness (or consideration of
color, national origin, or sex) is prohibited. Compare, e.g., § 1000.05(4)(a)2., Fla. Stat. (2022)
(prohibiting promotion of the view that a person may be unconsciously racist due to their own
race) with, e.g., § 1000.05(4)(a)8., Fla. Stat. (2022) (prohibiting promotion of the view that
colorblindness is racist). The similarity of these eight concepts creates an arguable basis for the
Professor Plaintiffs to refrain from expressing a favorable viewpoint on race or sex consciousness
as part of their intended instruction. Further, it could be argued that the injury suffered by the
Professor Plaintiffs flows from the IFA’s enforcement mechanism, not the definition of the eight
concepts. None of the harms the Professor Plaintiffs face flows from the definitions of the eight
concepts. Instead, the requirement that universities implement a grievance system and discipline
or terminate employees that promote or compel belief in any of the eight concepts serves as the
source of the Professor Plaintiffs’ injury.
If the Supreme Court’s opinion in Davis were the only authority analyzing standing on a
provision-by-provision basis, this argument might be tenable. But, as this Court sets out infra, the
Eleventh Circuit’s decisions in CAMP and Harrell mandate a more granular provision-byprovision analysis to determine whether Plaintiffs demonstrate an injury for each way that a
challenged statute may be violated.
50
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In CAMP, a group seeking to hold outdoor festivals in Atlanta challenged the
City’s permitting ordinance on First Amendment grounds. CAMP, 451 F.3d at 1264.
In determining whether the plaintiffs had standing, the Eleventh Circuit ruled that
the group “ ‘must show that [it] has sustained or is immediately in danger of
sustaining a direct injury as the result of’ each provision” in the challenged
permitting ordinance. Id. at 1274 (quoting Laird v. Tatum, 408 U.S. 1, 13 (1972)).
For example, the Eleventh Circuit held that the group had standing to challenge the
ordinance’s provision that they apply for a permit ninety days before the proposed
event because the group demonstrated its activities were arguably affected by this
provision. Specifically, the group submitted evidence that it had “difficulty
recruiting performers based on its inability to predict whether it would receive a
festival permit 90 days in advance.” Id. at 1276.
The group did not have standing, however, to challenge the ordinance’s
provision that permit applicants must not have failed to pay fees or execute a cleanup
plan for prior events because the group “presented no evidence . . . that these
provisions apply to the permits it seeks.” Id. In sum, even though the challenged
statute’s provisions fell under an umbrella of permit requirements, the group still had
to demonstrate an injury for each way the statute could be violated. In other words,
they could challenge only those provisions that their activities arguably implicated.
Thus, CAMP teaches that, to satisfy the required provision-by-provision standing
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analysis, plaintiffs must demonstrate an injury for each challenged provision by
showing how their activities arguably implicate each way the challenged statute
could be violated.
This Court’s reading of CAMP is confirmed by the Eleventh Circuit’s decision
in Harrell. In that case, the Eleventh Circuit applied CAMP’s meticulous provisionby-provision analysis to an attorney’s 31 challenge to nine Florida Bar provisions
regulating attorney advertising on vagueness and First Amendment grounds.
Harrell, 608 F.3d at 1253. For his First Amendment claims, the Eleventh Circuit
found that the attorney had standing to challenge all nine of the challenged
advertising provisions. While the exact showing for each provision was not
specified, the Eleventh Circuit found that the attorney had shown “how the
challenged rules seem to prohibit the ads he wishes to run . . . .” Id. at 1260 n.7.
Again, despite the similarity of the statutory provisions under the umbrella of
regulating attorney advertising, the attorney still had to show an injury for each way
the challenged provisions could be violated.
In sum, the provision-by-provision analysis set out in CAMP and Harrell
requires plaintiffs to demonstrate an injury by showing how their activities arguably
implicate each way a challenged statute could be violated. In CAMP, this meant that
31
In addition to the individual attorney, both the attorney’s firm and a nonprofit
organization challenged the Florida Bar’s advertising restrictions.
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the group challenging Atlanta’s permitting process must show an arguable effect on
its operations for every challenged permit requirement. In Harrell, this meant that
the attorney seeking to run various ads must show an arguable effect on a proposed
advertisement for every challenged advertising provision. In this case, this means
that the Professor Plaintiffs must show their intent to arguably promote or compel
belief in each of the challenged concepts to establish standing.
With this provision-by-provision standard in mind, this Court now addresses
standing as to Plaintiffs’ First Amendment challenge. Plaintiffs can be divided into
two categories: (1) professors and (2) students. This Court will address each in turn.
2
First, the Professor Plaintiffs. All but one of the Professor Plaintiffs suffer
from (1) a cognizable injury—either self-censorship or planning to speak despite
risk of discipline—that is (2) fairly traceable to the members of the Board of
Governors (and, for Professor Novoa, to the members of the University of South
Florida Board of Trustees) and (3) would be redressed with an injunction prohibiting
enforcement of section 1000.05(4), Florida Statutes (2022) and Regulation 10.005.
These elements are discussed in detail below.
i
Now for the first element of standing: a cognizable injury. This Court begins
with the sole professor who has failed to demonstrate standing for purposes of the
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requested preliminary injunction—namely, Dr. Dunn. Dr. Dunn’s showing, while a
close call, falls short of meeting his heightened burden to establish an injury at the
preliminary injunction stage because he has not demonstrated how his bus tour falls
within prohibited instruction or training.
To review, Dr. Dunn is an emeritus professor at FIU who offers his views as
part of a Black history bus tour for FIU students and staff. See ECF No. 13-7 ¶ 10,
in Case No: 4:22cv304-MW/MAF (Dunn Declaration). He asserts that FIU currently
compensates him for his work running the bus tour, but Dr. Dunn does not explain
whether any FIU students or employees participate in the bus tour as part of a course
or training put on by the university. These facts are critical to establish whether Dr.
Dunn’s bus tour is regulated under the IFA as “instruction” or “training.”
Regulation 10.005(1)(c) defines “instruction” as “the process of teaching or
engaging students with content about a particular subject by a university employee
. . . within a course.” Regulation 10.005(1)(b) also defines “training” as a “planned
or organized activity conducted by the university as a mandatory condition of
employment, enrollment, or participation in a university program for the purpose of
imparting knowledge, developing skills or competencies, or becoming proficient in
a particular job or role.” Here, Dr. Dunn’s lone statement that he continues “to
instruct FIU students and staff on the tour,” without more, does not establish that he
provides “instruction” or “training” under Regulation 10.005. At the preliminary
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injunction stage, Dr. Dunn’s failure to demonstrate that the tour is required (or even
recommended) as part of a course or training at FIU makes his self-censorship injury
unreasonable because the IFA likely does not apply to his speech. Accordingly, Dr.
Dunn lacks standing to seek a preliminary injunction.
Aside from Dr. Dunn, the Professor Plaintiffs have shown a substantial
likelihood of success in establishing standing for purposes of a preliminary
injunction touching at least one—and often several—of the eight concepts.
Starting with Professor Pernell, he asserts that he typically assigns a casebook
that he authored as part of his course on the Role of Race in Criminal Procedure at
FAMU Law. ECF No. 13-1 ¶ 22, in Case No: 4:22cv304-MW/MAF (Pernell
Declaration). He will likely teach this class in the 2023 spring semester, id. ¶ 16, and
most of the readings for it come from his casebook (which includes excerpts of his
scholarship), id. ¶ 22. Professor Pernell’s casebook explains how racism became
embedded in the criminal legal system and that it remains embedded there. Id.
Professor Pernell realizes the risk to him personally if he were to violate the
IFA, id. ¶ 28, and that the IFA arguably requires him to stop using his casebook in
class, id. ¶ 22. This is because the notion that the criminal legal system is not
colorblind—and, in turn, that some people are disadvantaged due to their race—
arguably promotes or compels belief in the IFA’s third and fourth concepts. See §§
1000.05(4)(a)3.–4., Fla. Stat. (2022); Regulation 10.005(1)(a)3.–4.
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Professor Pernell does not explicitly state that he plans to either self-censor or
promote the third and fourth concepts despite risk of discipline from FAMU Law.
However, Professor Pernell’s showing permits the reasonable inference that the
IFA’s speech restrictions leave him with three choices. He can (1) self-censor; (2)
promote the third and fourth concepts despite risk of discipline from FAMU Law;
or (3) self-censor in part and promote some concepts despite risk of discipline. As
this Court previously explained, each alternative evidences an intent to engage in an
act “arguably affected with a constitutional interest” under Driehaus and
Wollschlaeger.
Before setting out its ultimate finding on Professor Pernell’s injury, this Court
pauses to discuss whether Professor Pernell—and the other Professor Plaintiffs—
face “a credible threat of prosecution.” See Wollschlaeger, 848 F.3d at 1304. The
interaction between the Professor Plaintiffs’ planned speech and Regulation 10.005
makes clear that each state university will likely prosecute any violation of the IFA.
Regulation 10.005(2)(a) mandates that “[e]ach university shall have a university
regulation that prohibits discrimination . . . by subjecting any student or employee
to training or instruction that espouses, promotes, advances, inculcates, or compels
such student or employee to believe any of the concepts as defined in paragraph
(1)(a).” Regulation 10.005(4)(d) requires each university to establish a process to
investigate reported violations of section 10.005(2)(a) and take “prompt action” to
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force offending employees to modify their behavior or face discipline—up to and
including termination. If a university “willfully and knowingly” violates section
1000.05(4)(a), Fla. Stat. (2022) (barring an employee from instruction that promotes
any of the eight prohibited concepts), Regulation 10.005(4)(d) commands that “the
university will be ineligible for performance funding” in the following fiscal year.
This performance funding is significant. For example, USF received
$73,009,247 in performance-based funds in the 2021–2022 budget year, ECF No.
19-24, in Case No: 4:22cv324-MW/MAF, which makes up about a fifth of total state
appropriations received by the University, see ECF No. 1 at 36, in Case No:
4:22cv324-MW/MAF. Given that the Board of Governors passed this regulation
according to its deliberative process and pursuant to an express grant of authority
from the Florida Legislature, this Court is inclined to believe that the Board means
what it says. Defendants have also vigorously defended the IFA against legal
challenges, which permits this Court to infer “an intent to enforce [the challenged
statute] . . . .” Wollschlaeger, 848 F.3d at 1305 (quoting Harrell, 608 F.3d at 1257).
Universities are required to implement regulations barring promotion of the
IFA’s prohibited viewpoints, and enforcement is all but ensured with the threat of
financial ruin. The Professor Plaintiffs face a credible threat that their universities
will discipline them—and potentially terminate their employment—if they promote
or compel belief in any of the eight concepts.
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Here, Professor Pernell has established that (1) he intends to engage in an act
“arguably affected with a constitutional interest” under Driehaus and Wollschlaeger;
(2) this speech is arguably proscribed as promoting or compelling belief in the third
and fourth concepts under the IFA and Regulation 10.005; and (3) the framework of
Regulation 10.005 creates a credible threat of enforcement from FAMU and the
members of the Board of Governors. Accordingly, Professor Pernell has
demonstrated an injury for purposes of standing as to the third and fourth concepts.
As for Professor Dorsey, she assigns many of her own articles in her Critical
Race Studies Course at USF. These articles acknowledge the existence of white
privilege and denounce the concept of colorblindness. ECF No. 13-2 ¶ 43, in Case
No: 4:22cv304-MW/MAF (Dorsey Declaration). Professor Dorsey will teach this
class in the 2023 spring semester. Id. ¶ 25. Understanding that assigning her own
articles acknowledging white privilege and criticizing color blindness arguably
qualifies as promotion or compulsion to believe in some of the eight concepts, id. ¶
43, Professor Dorsey fears her career prospects at USF will be limited, id. ¶ 57.
Professor Dorsey does not explicitly state whether she will self-censor, but like
Professor Pernell, her decision to either self-censor, speak with risk of being
disciplined, or a combination of the two evidences an intent to engage in an act
“arguably affected with a constitutional interest” under Driehaus and Wollschlaeger.
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This Court finds that Professor Dorsey’s course assignments arguably
constitute promoting or compelling belief in the third, fourth, and eighth concepts.
See §§ 1000.05(4)(a)3.–4. and 8., Fla. Stat (2022).; Regulation 10.005(1)(a)3.–4.,
and 8. Professor Dorsey’s declarations establish that (1) she intends to engage in an
act “arguably affected with a constitutional interest” under Driehaus and
Wollschlaeger; (2) this speech is arguably proscribed as promoting or compelling
belief in the third, fourth, and eighth concepts under the IFA and Regulation 10.005;
and (3) Regulation 10.005’s framework creates a credible threat of enforcement from
USF and the members of the Board of Governors. Accordingly, Professor Dorsey
has demonstrated an injury for purposes of standing as to the third, fourth, and eighth
concepts.
At the University of Florida, Professor Austin teaches many courses that
promote race consciousness, including Politics of Race and Urban Politics in the fall
term of 2022, and African American Politics and Policy, which she teaches almost
every year. ECF No. 13-3 ¶¶ 27–32, 35, in Case No: 4:22cv304-MW/MAF (Austin
Declaration). As part of her courses, Professor Austin promotes Critical Race Theory
as an “appropriate lens” and assigns articles from authors who argue, for example,
that “racism is the norm in America because it provides advantages to whites and
disadvantages to Blacks.” Id. ¶¶ 40–41. Professor Austin also assigns a text that
promotes the concepts of “white privilege, institutional racism at predominantly
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white universities, and advocates for affirmative action to ensure campus diversity.”
Id. ¶ 43. However, to avoid disciplinary action, Professor Austin plans to self-censor.
Id. ¶ 44.
This Court finds that by endorsing Critical Race Theory and assigning articles
supporting various forms of race consciousness (or the perils of ignoring race),
Professor Austin arguably promotes or compels belief in concepts three, four, six,
and eight. See §§ 1000.05(4)(a)3., 4., 6., and 8., Fla. Stat. (2022); Regulation
10.005(1)(a)3., 4., 6., and 8. Professor Austin’s declarations establish that (1) she
would teach several classes where Critical Race Theory and various forms of race
consciousness are arguably promoted but for the IFA; (2) this proposed speech is
arguably proscribed as promotion of or compulsion to believe in the third, fourth,
sixth, and eighth concepts under the IFA and Regulation 10.005; and (3) Regulation
10.005’s framework creates a credible threat of enforcement from UF and the
members of the Board of Governors. Accordingly, Professor Austin has
demonstrated that it would be reasonable for her to self-censor, conferring an injury
for purposes of standing as to the third, fourth, sixth, and eighth concepts.
Professor Park will teach a course on Race & Technology in the spring
semester of 2023 at UCF, which expressly promotes the “basic premise” that
technologies “perpetuate inequalities and oppression under the auspices of
neutrality” ECF No. 13-4 ¶ 14, in Case No: 4:22cv304-MW/MAF (Park
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Declaration). This course, as well Professor Park’s other courses, “do not question
whether heterosexism, sexism, or racism exist because there is already consensus”
in her discipline. Id. ¶ 16. Similarly, Professor Park teaches that “notions of merit,
objectivity, colorblindness, and so forth function to solidify systems of oppression—
disguising biased standards as ones that are allegedly neutral.” Id. By teaching
“structural oppressions such as sexism, heterosexism and racism as foundational
truths” rather than theories contemplated by some academics, Professor Park
arguably promotes or compels belief in concepts four and eight under the IFA. See
§§ 1000.05(4)(a)4. and 8., Fla. Stat. (2022); Regulation 10.005(1)(a)4. and 8.
Professor Park also conducts an exercise in her Feminist Theories class to
explore privilege:
In class, students have the option to answer various questions about
their privileges (or lack thereof) related to race, sex, class, and ability.
With each answer, they physically move closer or further from the
center of the room (where I dispense candy), representing the social
“center.” We debrief on the activity, which students describe as a
memorable lesson about what it feels means [sic] (and feels like) to be
“centered” or “marginalized.” They also learn how privileges shape the
experiences of others.
ECF No. 13-4 ¶ 24, in Case No: 4:22cv304-MW/MAF (Park Declaration). This
exercise arguably qualifies as promoting or compelling belief in the notion that a
student’s privileged status is determined by their race, color, national origin, or sex.
With reasonable inferences, this exercise also arguably promotes or compels belief
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in notions of guilt.32 Thus, Professor Park’s exercise arguably promotes or compels
belief in concepts one, two, three, five, and seven. See §§ 1000.05(4)(a)1., 2., 3., 5.,
and 7., Fla. Stat. (2022); Regulation 10.005(1)(a)1., 2., 3., 5., and 7.
Fearing “disciplinary action, including termination” for violating the IFA,
Professor Park acknowledges her choice between self-censoring and violating the
law. ECF No. 13-4 ¶ 34, in Case No: 4:22cv304-MW/MAF (Park Declaration).
Professor Park does not explicitly state whether she will self-censor, but like
Professor Pernell, her decision to self-censor, speak with the risk of being
disciplined, or a combination of the two evidences an intent to engage in an act
“arguably affected with a constitutional interest” under Driehaus and Wollschlaeger.
Thus, Professor Park’s declarations establish that (1) she intends to engage in
an act “arguably affected with a constitutional interest” under Driehaus and
Wollschlaeger; (2) her proposed speech is arguably proscribed as promotion of or
compulsion to believe in the first, second, third, fourth, fifth, seventh, and eighth
32
Professor Park arguably promotes or compels belief in the concept that a member of one
race, sex, or national origin is morally superior to another by directing students to participate in an
exercise accepting these privileges as true. In other words, students participating in the exercise
could plausibly infer that peers with fewer privileges are “morally superior” because they lack the
advantages of privileged students and have faced a more difficult life. See § 1000.05(4)(a)1., Fla.
Stat. (2022). This same promotion of differing privileges could cause students to believe that their
moral character is determined by their race, sex, or national origin, see § 1000.05(4)(a)3., Fla. Stat.
(2022), they bear collective responsibility for the systems that enable their privilege and “must feel
anguish,” see § 1000.05(4)(a)7., Fla. Stat. (2022), that they are “inherently racist, sexist, or
oppressive” due to their privilege, see § 1000.05(4)(a)2., Fla. Stat. (2022), or that they bear
responsibility for “actions committed in the past by other members of the same race, color, national
origin, or sex,” see § 1000.05(4)(a)5., Fla. Stat. (2022).
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concepts under the IFA and Regulation 10.005; and (3) the Regulation 10.005’s
framework creates a credible threat of enforcement from UCF and the members of
the Board of Governors. Accordingly, Professor Park has demonstrated an injury for
purposes of standing as to the first, third, fourth, fifth, seventh, and eighth concepts.
Also at UCF, Professor Sandoval teaches courses on interpersonal,
intercultural, and gender communication. In these classes, she “explicitly” teaches
that racial colorblindness “fundamentally denies the lived reality of people in a
system that has an embedded racial hierarchy.” ECF No. 13-5 ¶ 16, in Case No:
4:22cv304-MW/MAF (Sandoval Declaration). Professor Sandoval is currently
teaching Intercultural Communication in fall 2022. Id. ¶ 13. This course includes a
section on “whiteness,” which involves instructing students that “people of color are
underrepresented in [her] field” due in part to discrimination by white academics.
Id. By teaching these viewpoints as a foundational premise, see id. ¶ 22, instead of
theories examined by some scholars, Professor Sandoval arguably promotes or
compels belief in concepts three and eight. See §§ 1000.05(4)(a)3. and 8., Fla. Stat.
(2022); Regulation 10.005(1)(a)3. and 8. Professor Sandoval acknowledges that she
might be disciplined, but she still plans to teach these concepts. ECF No. 13-5 ¶ 13,
in Case No: 4:22cv304-MW/MAF (Sandoval Declaration).
Thus, Professor Sandoval’s declarations establish that (1) she will teach
several classes where some of the eight concepts are taught as foundational premises
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and colorblindness is critiqued despite the risk of discipline from UCF; (2) this
speech is arguably proscribed as promotion of or compulsion to believe in the third
and eighth concepts under the IFA and Regulation 10.005; and (3) Regulation
10.005’s framework creates a credible threat of enforcement from UCF and the
members of the Board of Governors. Accordingly, Professor Sandoval has
demonstrated an injury for purposes of standing as to the third and eighth concepts.
At FSU, Professor Almond’s graduate and doctorate-level courses instruct
students on how to account for race as a variable in statistical analysis. ECF No. 136 ¶¶ 15–17, in Case No: 4:22cv304-MW/MAF (Almond Declaration). In a handout
Professor Almond created and assigns in his Basic Descriptive and Inferential
Statistics Applications course, students are encouraged to consider the effects of
ongoing systemic discrimination when evaluating the effects of race in statistical
models. Id. ¶ 20. Professor Almond also discusses his own white privilege in the
handout. Id. By assigning this handout, Professor Almond arguably promotes or
compels belief in the third and fourth concepts. See §§ 1000.05(4)(a)3.–4., Fla. Stat.
(2022); Regulation 10.005(1)(a)3.–4. Professor Almond acknowledges “having to
decide whether to continue including this handout in my future courses by weighing
the importance of the concepts discussed against the potential penalties for
violating” the IFA. ECF No. 13-6 ¶ 32, in Case No: 4:22cv304-MW/MAF (Almond
Declaration). Professor Almond does not explicitly state whether he will self-censor,
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but like Professor Pernell, his decision to either self-censor, speak with risk of being
disciplined, or a combination of the two evidences an intent engage in an act
“arguably affected with a constitutional interest” under Driehaus and Wollschlaeger.
Professor Almond’s declaration establishes that he (1) intends to engage in an
act “arguably affected with a constitutional interest” under Driehaus and
Wollschlaeger; (2) his proposed speech is arguably proscribed as promotion of or
compulsion to believe the third and fourth concepts under the IFA and Regulation
10.005; and (3) Regulation 10.005’s framework creates a credible threat of
enforcement from FSU and the members of the Board of Governors. ECF No. 13-6
¶¶ 15–17, 20, in Case No: 4:22cv304-MW/MAF (Almond Declaration).
Accordingly, Professor Almond has demonstrated an injury for purposes of standing
as to the third and fourth concepts.
At USF, Professor Novoa will teach Science in Cultural Context in the spring
2023 semester. ECF No. 1 ¶ 152, in Case No.: 4:22cv324-MW/MAF (Novoa’s
Sworn Allegations in Verified Complaint). 33 In this course, Professor Novoa assigns
a book she co-authored, From Man to Ape: Darwinism in Argentina, 1870–1920, in
which they argue that the “strict vertical hierarchy in the flow of scientific
knowledge” between Europe and Latin America” relegates “Latin American
33
As this Court explained supra, the Novoa Plaintiffs set out their evidence in the form of
sworn factual allegations in the verified complaint.
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scientists to the status of derivative thinkers.” Id. ¶ 161. Professor Novoa also assigns
an article arguing that the “new human sciences” used “racial differences between
human groups” as the “chief means” of mapping the human world. Id. ¶ 170.
Assigning her own work treating the existence of racial privilege as a given arguably
implicates the IFA’s third concept, as does her intention to promote another author’s
arguments in favor of race consciousness as part of her class discussions. See §
1000.05(4)(a)3., Fla. Stat. (2022); Regulation 10.005(1)(a)3.
In the fall 2022 semester, Professor Novoa is teaching History of Sports from
National to Global Contexts. In this course, she asserts that she traditionally assigns
articles that promote the following viewpoints:
• “Afro-Latino baseball players, despite coming from different backgrounds
and cultures, were reduced to their perceived racial identity.” ECF No. 1 ¶
180, in Case No.: 4:22cv324-MW/MAF.
• “[D]espite making progress on racial issues, the United States remains
segregated by race.” Id. ¶ 184.
• “[W]hite Americans have historically been privileged to the detriment of nonwhite” or “subordinate groups . . . .” Id. ¶ 193.
Professor Novoa promotes these arguments through her lectures, see id. ¶¶ 179, 186,
which arguably implicates IFA’s concept three. See § 1000.05(4)(a)3., Fla. Stat.
(2022); Regulation 10.005(1)(a)3.
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Finally, in Professor Novoa’s Modern Latin America class, she assigns a
reading called Collective Guilt and the Crucifixion by Geoffrey Turner that teaches
about collective guilt. As part of this assignment, Professor Novoa discusses the case
of Damiana-Kryygi:
A group of European explorers killed Damiana-Kryygi’s parents,
kidnapped her as a small child, and took her to live in Buenos Aires,
Argentina, where she was a maid of a famous physician. After she died,
Damiana-Kryygi’s head was severed and sent to Berlin for
phrenological and other pseudoscientific studies because it was
believed that her “race” was extinguishing.
ECF No. 1 ¶ 207, in Case No.: 4:22cv324-MW/MAF. Professor Novoa asserts that
Argentine society—herself included—bears collective responsibility for this act as
well as the broader extermination of indigenous peoples. Id. ¶¶ 209–11. In
expressing her belief that she bears collective responsibility for the wrongs
committed by other individuals sharing her national origin during class discussions,
Professor Novoa arguably promotes the first, second, third, fifth, and seventh
concepts under the IFA. See §§ 1000.05(4)(a)1., 2., 3., 5., and 7., Fla. Stat. (2022);
Regulation 10.005(1)(a)1., 2., 3., 5., and 7.34
34
Similar to the rationale set out with respect to Professor Park, Professor Novoa arguably
promotes or compels belief in the concept that a member of one national origin is morally superior
to another by sharing her belief that she herself bears responsibility for the actions of her ancestors.
In other words, by acknowledging guilt for the extermination of indigenous people that an
indigenous person would not bear, a student could plausibly infer that the indigenous person
lacking culpability is “morally superior” to the individual with collective culpability based on their
national origin. See § 1000.05(4)(a)1., Fla. Stat. (2022). This same promotion of collective guilt
could cause students to believe that their moral character is determined by their race, sex, or
national origin, see §1000.05(4)(a)3., Fla. Stat. (2022), they bear their own form of collective
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Because of the IFA, Professor Novoa plans to self-censor and refrain from
promoting these works. Id. ¶¶ 165, 173, 182, 189, 196, 214. Professor Novoa’s sworn
allegations establish that she (1) would promote or compel belief in the concepts of
race consciousness and collective guilt but is self-censoring due to the IFA; (2) her
proposed speech is arguably proscribed as promotion of or compulsion to believe in
the first, second, third, fifth, and seventh concepts under the IFA and Regulation
10.005; and (3) Regulation 10.005’s framework creates a credible threat of
enforcement from USF and the members of the Board of Governors. Accordingly,
Professor Novoa has demonstrated that it is reasonable for her to self-censor,
conferring an injury for purposes of standing as to the first, second, third, fifth, and
seventh concepts.
In short, all but one of the Professor Plaintiffs have demonstrated an injury in
fact with respect to one or more of the IFA’s eight concepts, which they challenge
as a viewpoint-based restriction in violation of the First Amendment. The Professor
Plaintiffs’ declarations and verified allegations show that they plan to alter their
course instruction, refrain from speaking on race consciousness altogether, or
continue and reasonably risk enforcement against them. Their proposed speech—
responsibility and “must feel anguish,” see § 1000.05(4)(a)7., Fla. Stat. (2022), that they are
“inherently racist, sexist, or oppressive,” see § 1000.05(4)(a)2., Fla. Stat. (2022), or that they bear
responsibility for “actions committed in the past by other members of the same race, color, national
origin, or sex,” see § 1000.05(4)(a)5., Fla. Stat. (2022).
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promoting or compelling belief in viewpoints in support of race or sex consciousness
as part of their course instruction—arguably runs afoul of the IFA’s prohibitions.
These professors provide “instruction” as defined by section 1000.05(4)’s
implementing regulation, see ECF No. 1-2 at 2–3, in Case No: 4:22cv324MW/MAF. Regulation 10.005(2)(a)’s mandate that each Florida university
implement a bar on promoting or compelling belief in the IFA’s concepts—
combined with the hefty penalties facing the university to ensure enforcement—
imposes a credible threat of enforcement on the Professor Plaintiffs.
For these reasons, this Court concludes that all Professor Plaintiffs, save Dr.
Dunn, have demonstrated an injury in fact at the preliminary-injunction stage.
ii
Next, this Court will address whether the Professor Plaintiffs have
demonstrated that their injuries are fairly traceable to Defendants. Traceability
requires a showing that Plaintiffs’ “injuries are connected with” Defendants’
conduct. Wilding v. DNC Servs. Corp., 941 F.3d 1116, 1125 (11th Cir. 2019) (cleaned
up) (quoting Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018)). In other words, the
Professor Plaintiffs must show that their injury is “fairly traceable to the challenged
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action of the defendant, and not the result of the independent action of some third
party not before the court.” Lujan, 504 U.S. at 560.
Here, the Pernell Professor Plaintiffs seek to enjoin (1) the Florida Board of
Governors of the State University System, as well as its individual members in their
official capacities; (2) the Boards of Trustees for the state university associated with
each Professor Plaintiff; and (3) Manny Diaz, Jr., in his official capacity as the
Commissioner of the Florida State Board of Education and member of the Board of
Governors. The Novoa Professor Plaintiff seeks to enjoin (1) the members of the
Florida Board of Governors of the State University System in their official
capacities; (2) the USF Board of Trustees, as well as its individual members in their
official capacities; (3) Manny Diaz, Jr., in his official capacity as the Commissioner
of the Florida State Board of Education and member of the Board of Governors; and
(4) the Inspector General of the Board of Governors.35
This Court finds that the Professor Plaintiffs’ injuries are fairly traceable to
the members of the Board of Governors and, for the Novoa Professor Plaintiff, to the
members of the USF Board of Trustees in their official capacities. 36 The IFA requires
35
Defendants fail to include more than a single sentence challenging Plaintiffs’ standing
as to the Board of Governors and its members, see ECF No. 51-1 at 7, in Case No: 4:22cv304MW/MAF, which would qualify as waiver with most other legal arguments. However, this Court’s
independent obligation to verify jurisdiction is proper again requires this Court to flesh out this
argument for them.
36
The Pernell Plaintiffs neglect to bring official-capacity claims against the individual
members of each university’s Board of Trustees. This Court will not address the traceability of the
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the Board of Governors to pass implementing regulations, which led to the passage
of Regulation 10.005. See § 1000.05(6)(a), Fla. Stat. (2022). Each of the universities
is controlled by its Board of Trustees. See § 1001.71(a), Fla. Stat. Regulation
10.005(2)(a) mandates that each state university pass its own regulation establishing
a grievance and discipline procedure for professors who promote or compel belief
in the eight concepts under the IFA. If the Board of Governors finds that a university
“willfully and knowingly” failed to enforce the university regulation, the university
will be ineligible for performance funding for the following fiscal year. Regulation
10.005(4)(d).
As set out in their declarations and verified complaint, the Professor Plaintiffs
fear discipline from their universities, given (1) the requirement that their
universities pass and enforce regulations barring the promotion of the eight concepts;
and (2) the strong incentive their universities have to discipline offending professors.
In short, the Board of Governors makes the determination that could lead to
withholding performance funding, which in turn leaves the universities little choice
but to ban promotion of the eight concepts. Accordingly, the Professor Plaintiffs’
injuries are fairly traceable to the members of the Board of Governors in their official
Pernell Professor Plaintiffs’ injuries to the Boards of Trustees because, as explained in more detail
infra, these entities’ sovereign immunity likely prevents an injunction from redressing any injury.
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capacities. In addition, Professor Novoa’s injuries are fairly traceable to the members
of USF’s Board of Trustees. 37
The Professor Plaintiffs’ injuries are also fairly traceable to Defendant Manny
Diaz, Jr., in his official capacity a member of the Board of Governors. Although
Defendant Diaz’s role as Commissioner of the Board of Education lacks any clear
enforcement authority under the IFA as to universities, his membership on the Board
of Governors gives him the same connection to the Professor Plaintiffs’ chilled
speech as the rest of the Board of Governors under the regulatory framework
outlined above. See § 1001.70(1), Fla. Stat. (establishing the Board of Governors
and naming the Commissioner of Education as a permanent member).
Accordingly, Professor Plaintiffs’ injuries are fairly traceable to the members
of the Board of Governors in their official capacities and, for Professor Novoa, to
the members of USF’s Board of Trustees in their official capacities.38
iii
Next, this Court will address whether the Professor Plaintiffs have
demonstrated that an injunction would sufficiently redress their injuries.
37
This Court need not discuss Professor Novoa’s standing to sue the USF Board of Trustees
as an entity because, as discussed infra, the individual members of the Board of Trustees are likely
the proper parties for prospective injunctive relief.
38
As this Court will explain infra, the Professor Plaintiff in Novoa fails to show that
enjoining the Inspector General would sufficiently redress her injury. For this reason, this Court
need not address whether Professor Novoa’s injury is fairly traceable to the Inspector General.
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Redressability considers “whether the injury that a plaintiff alleges is likely to be
redressed through the litigation.” Sprint Commc’ns Co., L.P. v. APCC Servs., Inc.,
554 U.S. 269, 287 (2008) (emphasis removed). A “substantial likelihood” of
redressability will satisfy this prong. Duke Power Co. v. Carolina Env’t Study Grp.,
Inc., 438 U.S. 59, 79 (1978). And Plaintiffs’ redress need not be total. Moody v.
Holman, 887 F.3d 1281, 1287 (11th Cir. 2018); see also I.L. v. Alabama, 739 F.3d
1273, 1282 (11th Cir. 2014). But it must be “the effect of the court’s judgment on
the defendant—not an absent third party—that redresses the plaintiff’s injury.” Lewis
v. Gov. of Ala., 944 F.3d 1287, 1301 (11th Cir. 2019) (quoting Digit. Recognition
Network, Inc. v. Hutchinson, 803 F.3d 952, 958 (8th Cir. 2015)). In sum, “where, as
here, a plaintiff has sued to enjoin a government official from enforcing a law, he
must show, at the very least, that the official has the authority to enforce the
particular provision that he has challenged, such that an injunction prohibiting
enforcement would be effectual.” Support Working Animals, Inc. v. Gov. of Fla., 8
F.4th 1198, 1201 (11th Cir. 2021).
As for the Novoa Plaintiffs’ claims against Defendant Julie Leftheris in her
official capacity as the Inspector General of the Florida Board of Governors of the
State University System, Professor Novoa falls short of demonstrating that her injury
is likely to be redressed by enjoining the Inspector General at the preliminary
injunction stage. Regulation 10.005(4)(a) directs the Inspector General to evaluate
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whether universities have “willfully and knowingly failed to correct” a professor’s
promotion of any of the eight concepts. The Inspector General reports its findings to
the Board of Governors, see Regulation 10.005(4)(a), which then decides whether
the university ultimately violated Regulation 10.005(2)(a), thus triggering a loss in
performance funding.
In short, the Inspector General serves only an investigative function. She
makes no decision regarding the availability of the performance funding that
encourages universities to bar the promotion of any of the eight concepts. Favorable
inferences may sustain Professor Novoa’s theory at the more forgiving motion-todismiss stage. But here, the Inspector General is only loosely connected to Professor
Novoa’s injuries. Without further factual support, the connection between Professor
Novoa’s injury and the Inspector General is too speculative to show a substantial
likelihood of redressability at the preliminary injunction stage. See Lujan, 504 U.S.
at 561 (“[I]t must be “likely,” as opposed to merely “speculative,” that the injury will
be “redressed by a favorable decision.” (quoting Simon v. Eastern Ky. Welfare Rights
Org., 426 U.S. 26, 38, 42 (1976))).39 Professor Novoa, thus, lacks standing for a
39
The Board of Governors and its individual members lack this degree of separation from
Plaintiffs’ chilled speech or threat of discipline, making Plaintiffs’ injuries fairly traceable to, and
likely to be redressed by, enjoining the Board. In other words, Plaintiffs’ chilled speech and the
threat of discipline are tied to the Board’s exclusive power to determine whether a university
violated Regulation 10.005—which all but ensures that state universities enforce the IFA’s
viewpoint prohibitions.
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preliminary injunction against Defendant Julie Leftheris in her official capacity as
Inspector General of the Board of Governors.
Professor Novoa has demonstrated that her injuries would be substantially
redressed by enjoining the remaining Defendants from enforcing the IFA and
Regulation 10.005. Enjoining the members of the Board of Governors from
enforcing the IFA would remove some chill on Professor Novoa’s speech because
USF would no longer be required to discipline any employee that promotes any of
the eight concepts. So would enjoining the members of USF’s Board of Trustees
from complying with Regulation 10.005(2)(a)’s requirement that they enact and
enforce regulations prohibiting promotion of the eight concepts.
This rationale applies with equal force to the Pernell Plaintiffs’ claims against
the members of the Board of Governors in their official capacities. However, the
Pernell Plaintiffs inexplicably fail to bring official-capacity claims against the
members of each university’s Board of Trustees—despite bringing official-capacity
claims against the members of the Board of Governors. An injunction against the
Boards of Trustees for each Pernell Plaintiffs’ university would not redress their
injuries because suits against these entities are likely barred by sovereign immunity
under the Eleventh Amendment. See, e.g., Univ. of S. Fla. Bd. of Trustees v.
CoMentis, Inc., 861 F.3d 1234, 1237 (11th Cir. 2017) (finding that USF’s Board of
Trustees qualified an “arm or alter ego of the State” for diversity jurisdiction because
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it satisfied the “same test that applies in determining whether [it] is entitled to
Eleventh Amendment immunity”).40 Sovereign immunity bars even prospective
injunctive relief when the named defendant is a state entity. Stevens v. Gay, 864 F.2d
113, 115 (11th Cir. 1989) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 100 (1984)). Accordingly, the Pernell Plaintiffs have failed to show a
likelihood of success in proving that an injunction against the Boards of Trustees
would redress their injuries because such an injunction is likely barred by sovereign
immunity. The Pernell Plaintiffs’ lack standing to seek a preliminary injunction
against their respective universities’ Board of Trustees.
Now, back to redressability for the properly named parties. Because the FEEA
still permits individual lawsuits for discrimination, an injunction directed at the
properly named Defendants would not provide total redress for Plaintiffs. But
redress need not be total to satisfy Article III, Reeves v. Comm’r, 23 F.4th 1308,
1318 (11th Cir. 2022), and enjoining these Defendants will provide at least partial
redress. The remaining Professor Plaintiffs, thus, have demonstrated that the
requested injunction would redress their asserted injuries.
40
Neither party addresses the Boards of Trustees’ sovereign immunity in their briefs, but
this Court can raise the issue sua sponte. McClendon v. Ga. Dep’t of Cmty. Health, 261 F.3d 1252,
1259 (11th Cir. 2001). This Court will address whether the Board of Governors and each
university’s Board of Trustees, as entities, should remain as parties to these suits in separate orders
on the pending motions to dismiss.
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*
*
*
Accordingly, this Court finds that the Professor Plaintiffs (save Dr. Dunn in
Pernell) have standing to bring their First Amendment challenge against Defendants
(save the Boards of Trustees in Pernell and the Inspector General in Novoa) as
follows:
• Professor Pernell has standing to challenge the IFA’s third and fourth concepts
against the members of the Board of Governors in their official capacities;
• Professor Dorsey has standing to challenge the IFA’s third, fourth, and eighth
concepts against the members of the Board of Governors in their official
capacities;
• Professor Austin has standing to challenge the IFA’s third, fourth, sixth, and
eighth concepts against the members of the Board of Governors in their
official capacities;
• Professor Park has standing to challenge the IFA’s first, second, third, fourth,
fifth, seventh, and eighth concepts against the members of the Board of
Governors in their official capacities;
• Professor Sandoval has standing to challenge the IFA’s third and eighth
concepts against the members of the Board of Governors in their official
capacities;
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• Professor Almond has standing to challenge the IFA’s third and fourth
concepts against the members of the Board of Governors in their official
capacities;
• Professor Novoa has standing to challenge the IFA’s first, second, third, fifth,
and seventh concepts against the members of the Board of Governors in their
official capacities and the members of the University of South Florida’s Board
of Trustees in their official capacities.
Conversely, Professor Plaintiffs have not demonstrated standing for a preliminary
injunction challenging the IFA’s prohibitions concerning those concepts that will not
affect their classroom instruction.
3
Now to the Student Plaintiffs, who bring a right-to-receive-information claim
under the First Amendment. See ECF No. 1 at 84–85, in Case No.: 4:22cv304MW/MAF; ECF No. 1 at 76, in Case No.: 4:22cv324-MW/MAF.41 As this Court
explains supra, in the context of these cases, a student’s right-to-receive-information
claim is coextensive with a professor’s free speech claim. Similarly, the Student
Plaintiffs have standing to bring this claim only to the extent they can demonstrate
41
Plaintiffs have not sought preliminary injunctive relief as to the equal protection claim
in Pernell, ECF No. 1 at 86, in Case No: 4:22cv304-MW/MAF, or to the Campus Free Expression
Act claim in Novoa, ECF No. 1 at 87, in Case No: 4:22cv324-MW/MAF. Accordingly, this Court
need not address Plaintiffs’ standing to bring those claims for purposes of this Order.
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that at least one of their instructors is chilled under the IFA. Accordingly, this Court
will address whether the Student Plaintiffs have demonstrated standing for purposes
of a preliminary injunction, beginning with Plaintiff Johana Dauphin in Pernell.
i
Plaintiff Dauphin is a senior at FSU. ECF No. 13-8 ¶ 3, in Case No:
4:22cv304-MW/MAF (Dauphin Declaration). In the fall semester of 2022, Ms.
Dauphin is enrolled in Race and Minority Relations, a course covering “historical
and contemporary race relations in the United States from a sociological
perspective.” Id. ¶ 18. One of the course objectives listed in the course syllabus is to
“[i]dentify the ways race/ethnicity is imbedded within the structure of society, and
how it materially and symbolically benefits some, while disadvantaging others.” Id.
¶ 19; see also id. ¶ 14. Ms. Dauphin submits no other evidence of her professor’s
planned promotion of one of the IFA’s eight concepts.
While a close call, Ms. Dauphin falls short of demonstrating an injury for
purposes of standing at the preliminary injunction stage. The cited course objective
provides some evidence that at least one of Ms. Dauphin’s professors may touch on
some of these concepts. And Ms. Dauphin has presented ample evidence that she
seeks a professor’s promotion of some of the eight concepts. Even so, she has
presented scant evidence that, but for the IFA, her professor would promote any of
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the eight concepts. 42 Further, Ms. Dauphin does not demonstrate that the professor
will self-censor. If the professor plans to promote or compel belief in the course
objective while risking discipline, Ms. Dauphin would not suffer an injury. In short,
Ms. Dauphin’s evidence fails to demonstrate an injury for purposes of standing under
the heightened burden imposed at the preliminary injunction stage.
On the other hand, in the Novoa case, Samuel Rechek has demonstrated
standing. Mr. Rechek is an undergraduate at USF and president of First Amendment
Forum at University of South Florida. ECF No. 1 ¶¶ 14, 16, in Case No.: 4:22cv324MW/MAF. He plans to enroll in Professor Novoa’s Science in Cultural Context
course for spring 2023. Id. ¶ 153. As set out above, Professor Novoa plans to assign
her own work treating the existence of racial privilege as a given in this course.
Likewise, during her class discussion, Professor Novoa intends to promote another
author’s arguments in favor of race consciousness. Both planned actions arguably
promote or compel belief in the third concept under the IFA. See § 1000.05(4)(a)3.,
Fla. Stat. (2022); Regulation 10.005(1)(a)3. Given Mr. Rechek’s specific, verified
allegations and Professor Novoa’s evidence that she would instruct her course in this
way but for the IFA, Mr. Rechek has demonstrated that he will imminently suffer an
42
Ms. Dauphin also mentions that she is taking a Race and Minority Relations course in
fall 2022, ECF No. 13-8 ¶ 20, in Case No: 4:22cv304-MW/MAF, but she fails to establish that any
portion of that class would likely involve a professor promoting or compelling one of the IFA’s
eight concepts. Her speculation about a professor’s potential fear of discussing colorblindness and
unconscious bias is well taken but insufficient to qualify as an actual injury at the preliminary
injunction stage.
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injury—namely, a violation of his right to access information promoted by Professor
Novoa.
ii
Next, traceability and redressability. As this Court explained above, Professor
Novoa’s chilled speech is fairly traceable to Defendants’ enforcement of the IFA and
Regulation 10.005. Likewise, an injunction prohibiting Defendants from enforcing
these provisions would redress (if only partly) Professor Novoa’s injuries.
The same reasoning applies to Mr. Rechek’s injury. The information he seeks
to access—Professor Novoa’s viewpoint—is chilled by the members of both the
Board of Governors’s and the USF Board of Trustees’s enforcement of the IFA and
Regulation 10.005. Enjoining their enforcement would redress much of the chilling
effect on Professor Novoa’s speech. Accordingly, this Court finds that Samuel
Rechek has demonstrated a substantial likelihood of success in showing that his
injury is both fairly traceable to the members of the Board of Governors and the USF
Board of Trustees, in their official capacities, and redressable by an injunction
barring these Defendants from enforcing the IFA and Regulation 10.005.
Thus, having established a substantial likelihood of proving that (1) he will
suffer an injury-in-fact that is (2) traceable to the members of both the Board of
Governors and USF Board of Trustees in their official capacities and that (3) an
injunction can substantially redress his injury, Samuel Rechek has standing to pursue
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preliminary injunctive relief for his First Amendment claim against these
Defendants. 43 Ms. Dauphin, on the other hand, lacks standing for purposes of her
preliminary injunction motion and, thus, is not entitled to such relief.
4
Next, this Court addresses the Professor Plaintiffs’ standing to pursue
preliminary injunctive relief with respect to their vagueness challenge.44 The
standing analysis here is similar to the analysis for a pre-enforcement free speech
claim, because the claimed injury is self-censorship or speaking with the risk of
discipline. For a First Amendment claim, a plaintiff must show (1) “an intention to
engage in a course of conduct arguably affected with a constitutional interest,” (2)
that is “proscribed by a statute,” and (3) that “there exists a credible threat of
prosecution[.]” Wollschlaeger, 848 F.3d at 1304 (quoting Driehaus, 573 U.S. at
159). For a vagueness claim that allegedly chills speech, a plaintiff must show that
(1) he seriously wishes to speak; (2) such speech would arguably be affected by the
challenged prohibition, but the rules are at least arguably vague as they apply to him;
43
Because Mr. Rechek has established standing to seek a preliminary injunction, this Court
need not address Plaintiff First Amendment Forum’s associational standing. See Rumsfeld, 547
U.S. at 53 n.2.
44
Only the Professor Plaintiffs bring a vagueness claim.
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and (3) there is at least a minimal probability that the rules will be enforced if they
are violated. See Harrell, 608 F.3d at 1254 (cleaned up).
The first and third elements of both tests overlap, and this Court’s analysis
regarding the Professor Plaintiffs’ First Amendment injury applies with equal force
to their vagueness injury. The difference comes with an additional requirement for
an injury due to a prohibition’s alleged vagueness—namely, that the challenged
prohibition must also be arguably vague as it applies to the plaintiff. See id.
The Professor Plaintiffs satisfy these requirements. First, their proposed
speech is arguably covered by one or more of the eight concepts in section
1000.05(4)(a), Florida Statutes (2022). Second, the so-called savings clause in
section 1000.05(4)(b), Florida Statutes (20222), which applies to any instruction or
training invoking the eight concepts, is arguably vague.45 Accordingly, the Professor
Plaintiffs have demonstrated an injury with respect to their vagueness claim.
The Professor Plaintiffs must also show that their injury resulting from the
savings clause’s vagueness is fairly traceable to, and redressable by, an order
enjoining Defendants from enforcing the IFA. For the same reasons that these
Plaintiffs have demonstrated traceability and redressability as to their First
Amendment claims, they have also satisfied these requirements as to their vagueness
claims. Accordingly, this Court finds that the injuries of Professor Plaintiffs (save
45
This Court will address section 1000.05(4)(b)’s vagueness at length infra.
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Dr. Dunn in Pernell) both are fairly traceable to Defendants (save the Boards of
Trustees in Pernell and the Inspector General in Novoa) and would be substantially
redressed by enjoining them from enforcing the challenged statute.
In sum, this Court finds that the Professor Plaintiffs (save Dr. Dunn in Pernell)
have standing to bring their Fourteenth Amendment vagueness challenge against
Defendants (save the Boards of Trustees in Pernell and the Inspector General in
Novoa) as follows:
• Professor Pernell has standing to challenge the IFA’s “objective instruction”
provision with respect to the third and fourth concepts against the members of
the Board of Governors in their official capacities;
• Professor Dorsey has standing to challenge the IFA’s “objective instruction”
provision with respect to the third, fourth, and eighth concepts against the
members of the Board of Governors in their official capacities;
• Professor Austin has standing to challenge the IFA’s “objective instruction”
provision with respect to the third, fourth, sixth, and eighth concepts against
the members of the Board of Governors in their official capacities;
• Professor Park has standing to challenge the IFA’s “objective instruction”
provision with respect to the first, second, third, fourth, fifth, seventh, and
eighth concepts against the members of the Board of Governors in their
official capacities;
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• Professor Sandoval has standing to challenge the IFA’s “objective
instruction” provision with respect to the third and eighth concepts against the
members of the Board of Governors in their official capacities;
• Professor Almond has standing to challenge the IFA’s “objective instruction”
provision with respect to the third and fourth concepts against the members of
the Board of Governors in their official capacities;
• Professor Novoa has standing to challenge the IFA’s “objective instruction”
provision with respect to the first, second, third, fifth, and seventh concepts
against the members of the Board of Governors in their official capacities and
the members of the University of South Florida’s Board of Trustees in their
official capacities.
Conversely, Professor Plaintiffs have not demonstrated standing for a preliminary
injunction challenging the IFA’s prohibitions concerning those concepts that will not
affect their classroom instruction.
C
Having established that Plaintiffs—save Dr. Dunn and Ms. Dauphin—have
standing for purposes of a preliminary injunction, this Court considers the merits of
their claims, starting with their First Amendment claims.
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1
Before diving in, this Court will first say what it is not doing. Contrary to
Plaintiffs’ request, this Court is not conducting any sort of forum analysis or
applying strict scrutiny to the challenged provisions. Furthermore, contrary to
Defendants’ suggestion, this Court is not applying Garcetti to hold that the
professors’ speech at issue is outside the scope of First Amendment protection.
Instead, as explained at length supra, this Court must apply the Eleventh Circuit’s
test from Bishop to both the professors’ and Mr. Rechek’s First Amendment claims.
For better or worse, Bishop guides this Court’s analysis. Which begs the
question—what is the standard this Court must apply from Bishop? First, contrary
to Defendants’ arguments, Bishop does not support their contention that the First
Amendment does not protect professors’ classroom speech. 46 Second, Bishop did
not create a bright-line rule requiring that any conflict between a professor’s speech
and the State to always yield in the State’s favor. 47 That dog just won’t hunt. As this
46
As this Court explained supra, even in the case Defendants cite for this proposition—
Edwards v. California University of Pennsylvania—then-Judge Alito recognized this distinction
and noted that the Eleventh Circuit in Bishop found “that a public university’s restrictions on a
professor’s in-class speech ‘implicated First Amendment freedoms.’ ” Edwards, 156 F.3d at 491.
47
Once again, Defendants have cobbled together a rule from cherry-picked quotations
dispersed throughout the opinion. See ECF No. 52 at 22, in Case No.: 4:22cv304-MW/MAF
(arguing that “[t]he government, ‘as an employer and educator can direct,’ an individual professor
‘to refrain from expression’ of particular views ‘in the classroom,’ and federal judges cannot
second-guess the government’s determination by acting as ‘ersatz deans or educators.’ ”) (quoting
Bishop, 926 F.2d at 1075, 1077). But this Frankenstein’s monster of a rule is wrong. It ignores the
test set out in Bishop and the Eleventh Circuit’s emphasis on a fact-intensive inquiry when judging
similar First Amendment claims. It also ignores a body of case law suggesting that the reason
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Court noted on the record at the hearing, the undersigned clerked for one of the
Eleventh Circuit judges on the Bishop panel, and that judge was certainly smart
enough to know the difference between a bright-line rule and a balancing test. Tr. at
17. Bishop explicitly adopted a balancing test. Full stop.
So, what does Bishop require this Court to do? Before discussing the
analytical framework in depth and applying it to Plaintiffs’ claims, this Court briefly
describes the case itself. Bishop involved an exercise physiology professor at the
University of Alabama who challenged the University’s restriction on his class
discussions, which included religious matters that the University deemed outside the
scope of his required course content. The professor would refer to his religious
beliefs during instructional time and, on the eve of exams, offered an “after-class
meeting for his students and others . . . wherein he lectured on and discussed
‘Evidences of God in Human Physiology.’ ” Id.
After receiving a few complaints from students, the University issued a memo
to the professor about “Religious Activities in a Public Institution.” Bishop, 926 F.2d
at 1069. The University’s memo advised that the professor’s references to his
asserted for “the government’s determination” may, in fact, be pretextual and the actual motivation
for such a determination violates the Constitution. See, e.g., ECF No. 468 (Memorandum of
Decision) at 40, in Gonzalez, et al. v. Douglas, Case No.: 4:10cv623-AWT (D. Arizona Aug. 22,
2017) (noting several Circuit Courts have “recognized a pretext-based First Amendment claim in
the school curriculum context”; concluding “that plaintiffs have proven their First Amendment
claim because both enactment and enforcement [of challenged law] were motivated by racial
animus”). It ignores, finally, the fact that the Constitution still serves to restrain the government
from imposing viewpoint-based restrictions on protected speech.
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religious beliefs and his after-class meeting “[were] unwarranted at a public
institution such as The University of Alabama and should cease.” Id. Failing to
persuade the President of the University to rescind the memo, the professor sued for
declaratory and injunctive relief, alleging that the memo violated his free speech
rights, among other constitutional violations. Id. at 1070. After the case proceeded
to a final order of summary judgment in the professor’s favor, the Eleventh Circuit
reversed the district court. Id.
In reversing the district court, the Eleventh Circuit noted that the “University’s
restrictions with respect to classroom conduct issued under its authority to control
curriculum” did not infringe the professor’s free speech rights. Id. at 1078. In
addition, the Eleventh Circuit held that “the memo’s restriction with respect to the
optional after-class meeting” did not infringe the professor’s free speech rights,
given that the “ ‘extra’ or ‘optional’ class or meeting [was] under the patronage of a
university course” and that the meeting was held so close to the course’s final
examination. Id.
To reach these conclusions, the Eleventh Circuit applied a “case-by-case
inquiry into whether the legitimate interests of the authorities [were] demonstrably
sufficient to circumscribe [the] teacher’s speech.” Bishop, 926 F. 2d at 1074 (internal
quotation marks and citation omitted). The Court suggested a balance of interests,
taking “as its polestar Kuhlmeier’s concern for the ‘basic educational mission’ of the
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school which gives it authority by the use of ‘reasonable restrictions’ over in-class
speech that it could not censor outside the classroom.” Id. (quoting Hazelwood, 484
U.S. at 266–67). But the Eleventh Circuit did not hold that no protection attaches to
professors’ in-class speech. Instead, the Eleventh Circuit recognized the principle,
which this Court has already discussed at length, that the State has great flexibility
when it comes to setting curriculum and determining course content. And with
respect to the facts at issue in Bishop, the Eleventh Circuit held that when a professor
and a university “disagree about a matter of content in the courses he teaches . . . .
[t]he University must have the final say in such a dispute.” Id. at 1076. In other
words, “[t]he University’s conclusions about course content must be allowed to hold
sway over an individual professor’s judgment.” 48 Id. at 1077.
In Bishop, the Eleventh Circuit considered three factors under its “case-bycase” approach—namely, (1) “the context,” (2) “the University’s position as a public
employer which may reasonably restrict the speech rights of employees more readily
48
This is different from the claims now before this Court. Here, the State has expressly
permitted professors to engage in classroom discussions regarding the eight concepts. The
difference is that having determined the content of course discussions may include these eight
concepts, the State has limited the viewpoints professors may share about the eight concepts. They
can criticize the concepts or, alternatively, discuss them in an “objective” manner, but they cannot
“endorse” the concepts. And while the State may easily point to a valid interest in regulating
curriculum or course content, once the State permits discussion of certain content it becomes far
more difficult to justify a viewpoint-based restriction on that discussion. Indeed, this Court has
found no binding authority that supports the argument for permitting rank viewpoint
discrimination, nor have the parties pointed to any persuasive authority for this proposition. But
more on that later.
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than those of other persons,” specifically with respect “to reasonably control[ling]
the content of its curriculum, particularly that content imparted during class time,”
and (3) “the strong predilection for academic freedom as an adjunct of the free
speech rights of the First Amendment.” Id. at 1074–75.
The context of Bishop involved a professor who independently chose to inject
his personal religious beliefs into class discussions on exercise physiology. Citing
the ever-present “specter of an establishment violation,” the Eleventh Circuit
credited the University’s concerns of possible coercion as a valid interest in
regulating the professor’s speech. Id. at 1076 n.7. The fact that the professor
conducted an “optional class” that served as a soapbox for his own personal agenda
on the eve of final exams underscored the University’s concern about coercion.
In addition, the Eleventh Circuit recognized that the professor sought to
recategorize his religious beliefs as his professional views about the science course
he was required to teach. Id. Nonetheless, the Eleventh Circuit pointed out “that the
two have to be conceptually separated for fair analysis. That is, simply renaming
religious views as professional, no matter how well-founded . . . does not deny the
authority of his employer to request that he sequester the personal from the
professional nor dismiss the specter of an establishment violation.” Id. In other
words, the Eleventh Circuit acknowledged the University had a valid and weighty
interest in regulating the course curriculum and avoiding an establishment violation,
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which outweighed the professor’s asserted interest in academic freedom to discuss
his religious beliefs in relation to the exercise physiology course he was required to
teach. 49 This was particularly true where the Eleventh Circuit was “not convinced
. . . that Dr. Bishop ha[d] fully comprehended the separation of his personal views
from his professorial duties that the University demands.” Id. at 1076 n.7.
Ultimately, the Eleventh Circuit found that a professor cannot do an end-run
around required curriculum by hijacking a course’s content and injecting religious
beliefs into the classroom under the guise of offering their “professional opinion” on
the subject. Considering the facts and the Establishment Clause concerns at play in
Bishop, the Eleventh Circuit “concluded that the University as an employer and
educator can direct Dr. Bishop to refrain from expression of religious viewpoints in
the classroom and like settings.” Id. at 1077.
This is not to say, however, that the University’s restriction was permissible
49
Defendants’ suggestion that “the government’s ‘interests in the classroom conduct of its
professors’ are per se a legitimate pedagogical concern,” ECF No. 52 at 23, in Case No.:
4:22cv304-MW/MAF, ignores the fact-intensive inquiry the Eleventh Circuit conducted in Bishop.
Indeed, in suggesting the University’s interests were sufficient in Bishop, the Eleventh Circuit
limited its holding to the facts of that case and the “reasonable restrictions [the University of
Alabama] imposed on Dr. Bishop.” Bishop, 926 F.2d at 1076. The Eleventh Circuit did not hold
that in all cases, the State is always constitutionally permitted to restrict professors’ speech based
on its “interest in the classroom conduct of its professors.” Nor did the Eleventh Circuit hold that
courts must always credit the State’s asserted interest as “per se legitimate.” Indeed, although this
Court does not reach the issue here, other courts have considered whether an asserted pedagogical
concern is in fact legitimate versus pretextual when evaluating other restrictions on classroom
speech. See note 47, supra.
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simply because of the religious nature of the speech at issue.50 Bishop might have
had a different outcome had Dr. Bishop taught a religious studies class and instead
offered his views regarding his own faith while instructing on Christianity. Or it
might have been a different case had the University permitted the exercise
physiology course to include a unit on intelligent design and evolution with respect
to human physiology. In Bishop, however, the Eleventh Circuit credited the
University’s determination that Dr. Bishop’s religious speech was not part of its
curriculum with respect to the exercise physiology course he taught. The same would
likely be true if a professor tried to teach an introductory botany class through the
lens of critical race theory.
In sum, the Eleventh Circuit—on the facts of the case before it—held that the
University’s authority to regulate content in the classroom with respect to the
established curriculum and its concern regarding a possible establishment violation
outweighed the professor’s weak interest in academic freedom to change the content
of the course. The Eleventh Circuit never said the University of Alabama had
unfettered power to control every thought or opinion a professor wished to express
50
Indeed, Bishop is not simply an Establishment Clause case. The Eleventh Circuit
expressly separated its analysis of Dr. Bishop’s free speech claim from any analysis of an actual
establishment violation. It noted that “[t]he University can restrict speech that falls short of an
establishment violation” and that it did “not reach the establishment questions raised by Dr.
Bishop’s conduct.” Bishop, 926 F.2d at 1077. But for purposes of the free speech claim, the
Eleventh Circuit credited the University’s concerns about an establishment violation as part of its
balance of interests in affirming the University’s restriction of Dr. Bishop’s classroom speech.
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during class. Instead, it determined that the University had proved it had a sufficient
interest to justify restricting Dr. Bishop’s in-class speech about his religious beliefs.
Accordingly, equipped with the First Amendment principles previously
discussed, this Court proceeds with its own case-by-case inquiry and applies
Bishop’s balancing test to Plaintiffs’ First Amendment claims.
2
Applying Bishop’s balancing test to Plaintiffs’ free speech claims, this Court
starts with Bishop’s first factor—context. Unlike in Bishop, the context of this case
does not implicate Establishment Clause concerns, nor does it focus on student
complaints about a single professor who used class time to discuss personal beliefs
that the University had deemed to be outside the scope of his course’s curriculum.
Instead, the context here includes the State of Florida’s passage of a sweeping
prohibition on expressing certain viewpoints about eight concepts during training or
instruction at state universities. This prophylactic ban on university employees’
speech affects potentially thousands 51 of professors and serves as an ante hoc
deterrent that “chills potential speech before it happens,” and “gives rise to far more
serious concerns than could any single supervisory decision,” such as that in Bishop.
U.S. v. Nat’l Treas. Emp’s Union, 513 U.S. 454, 468 (1995) (NTEU).
51
For example, the University of Florida, alone, boasts over 6,000 faculty members. See
University of Florida at a Glance, available at https://news.ufl.edu/media/newsufledu
/documents/20220408-311pm-UF-Facts.pdf (last visited November 16, 2022).
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In NTEU, the Supreme Court reviewed a statute prohibiting over 1.5 million
lower-level federal employees from receiving honoraria for writing articles or
delivering speeches and held the government to a heavier burden of justification that
could not be satisfied through “mere speculation about serious harms.” Id. As
discussed at the hearing, NTEU’s facts are distinguishable here because that case
addressed a restriction on speech that was “largely unrelated to [the employees’]
government employment.” Id. at 466. Nonetheless, NTEU suggests that Defendants
face a heavier burden to justify a “statutory restriction on expression,” id. at 468,
than the University of Alabama faced in Bishop “with respect to an isolated
disciplinary action,” id.
Likewise, the context here is different from that in Bishop, because the
Professor Plaintiffs, unlike Dr. Bishop at the University of Alabama, are not seeking
to inject unsanctioned concepts into their class content or hijack the established
curriculum with their own personal agenda. Instead, the Professor Plaintiffs are
challenging a prohibition on expressing approval 52 as to eight specific concepts,
when the State of Florida has already sanctioned these eight concepts as part of the
curriculum. Indeed, Defendants admit that these concepts are expressly allowed to
be discussed in university classrooms. See ECF No. 52 at 31, in Case No.:
52
Specifically, as noted earlier with respect to the eight concepts, the IFA prohibits
“training or instruction that espouses, promotes, advances, inculcates, or compels . . . belie[f],” in
them, and “endorsement of the concepts.” §§ 1000.05(4)(a)–(b), Fla. Stat. (2022).
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4:22cv304-MW/MAF (“As an initial matter, by its own terms, the Act does not
‘prohibit discussion of the concepts’ listed in Section [1000.05(4)(a)].”). The
problem here, however, is the State of Florida has determined that although these
concepts may be covered in the curriculum, instructors may only discuss them “in
an objective manner”—whatever that means—or they may criticize or condemn the
concepts. Defendants admit that the State of Florida is engaging in rank viewpoint
discrimination, although their admission conflates viewpoint with content. See Tr. at
30 (“[W]hen the university is setting its curriculum, it is entitled to have a viewpoint.
It is entitled to—and its professors are speaking with its voice, and it’s entitled to
determine what they say.”).
This Court is mindful of the Eleventh Circuit’s admonition that it “should not
be [an] ersatz dean[] or educator[]” and that it “cannot supplant [its] discretion for
that of the [State].” Bishop, 926 F.2d at 1066. Accordingly, this Court absolutely
defers to the State of Florida’s curricular decision to permit instructors to discuss
these concepts in its university classrooms. However, this Court has found no
authority—nor have the parties pointed to anything binding or persuasive—that
requires this Court to defer to the State of Florida’s blatant viewpoint-based
restrictions on protected speech once the subject at issue is included in the
curriculum. In other words, simply because the State of Florida has great flexibility
in setting curriculum, it cannot impose its own orthodoxy of viewpoint about the
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content it allowed within university classrooms. Thus, unlike in Bishop, the context
of these cases weighs against the State of Florida’s interest in prohibiting university
employees from expressing certain viewpoints during training or instruction.
Which leads this Court to the second, somewhat-overlapping Bishop factor—
namely, the State of Florida’s “position as a public employer which may reasonably
restrict the speech rights of employees more readily than . . . those of other persons.”
Bishop, 926 F.2d at 1074. Without a doubt, the State of Florida is accorded more
flexibility to limit public employee speech as opposed to private individuals’ speech.
Id. at 1072 (discussing Pickering v. Bd. of Educ., 391 U.S. 563 (1968)). Nonetheless,
such limitations must be both reasonable and supported by evidence of a sufficiently
weighty interest to overcome the employee’s right to speak. 53
For example, in Bishop, the Eleventh Circuit credited the University’s interest
in controlling its curriculum and avoiding an establishment violation, which
motivated the University to order Dr. Bishop to cease injecting his religious beliefs
into his class discussions on exercise physiology. Bishop, 926 F.2d at 1076 (“[T]he
University’s interests in the classroom conduct of its professors are sufficient, in the
balance we have suggested, to warrant the reasonable restrictions it has imposed on
Dr. Bishop.”). Likewise, the Eleventh Circuit held that the University of Alabama’s
53
And, as noted supra, a public employer may face a heavier burden to justify a
prophylactic ban on expression as compared to an isolated disciplinary action. See NTEU, 513
U.S. at 468.
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restrictions preventing “Dr. Bishop from making assertions about his religious
beliefs vis-à-vis the subject matter of his course” and disassociating his after-class
meetings from his courses were reasonable and sufficiently supported by its asserted
interests. Id.
Here, on the other hand, Defendants assert the challenged provisions address
the pedagogical concern of reducing racism or prohibiting racial discrimination as
an extension of federal law under Title IX. See Tr. at 89. But even if this Court agrees
this is a legitimate concern motivating the IFA’s enactment, the restriction the State
of Florida imposes upon its public university employees—a viewpointdiscriminatory ban targeting protected in-class speech—is certainly not reasonable.
Defendants try to dress up the State of Florida’s interest as a public employer
and educator as prohibiting discrimination in university classrooms, but this does
not give Defendants a safe harbor in which to enforce viewpoint-based restrictions
targeting protected speech. In short, it is no answer that the challenged provisions
are situated within an antidiscrimination law. To the extent Defendants suggest a
viewpoint-discriminatory restriction on protected speech is immunized from a First
Amendment challenge because it is situated within an antidiscrimination law, they
are mistaken.
Following Defendants’ suggestion during the hearing that the IFA represents
merely an extension of Title IX, this Court engaged in a lengthy discussion with
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defense counsel regarding the relationship between the First Amendment and
antidiscrimination laws, like Title IX, Title VII, and Florida’s Civil Rights Act under
Chapter 760. This was familiar territory for defense counsel, given that Mr. Cooper
was also lead counsel in a parallel case challenging the IFA’s amendments to Chapter
760. See Honeyfund.com, Inc. v. DeSantis, --- F. Supp. 3d
---, 2022 WL 3486962,
*9 (N.D. Fla. Aug. 18, 2022).
In Honeyfund, Defendants mistakenly asserted that “any holding striking
down the IFA’s employment provisions would directly threaten the validity of Title
VII’s protections against hostile work environments.” Id. (cleaned up). As this Court
previously explained, Title VII targets conduct and only incidentally burdens speech,
but the IFA does the inverse. Id. at *10 (noting that the IFA “targets speech—
endorsing any of eight concepts—and only incidentally burdens conduct”). And
while “it can be mostly speech that creates” hostile environments under federal
antidiscrimination laws, this is only so “when such speech is both objectively and
subjectively offensive and when it is sufficiently severe or pervasive.” Id. at *9. As
this Court noted in Honeyfund, courts have recognized that this “severity or
pervasiveness” requirement provides “shelter for core protected speech.” Id.
(quoting DeJohn v. Temple Univ., 537 F.3d 301, 317–18 (3d Cir. 2008)); see also
Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650
(1999) (reversing dismissal of complaint alleging student-on-student sexual
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harassment that “was not only verbal,” but also “included numerous acts of
objectively offensive touching . . . [and] multiple victims,” and holding that “funding
recipients are properly held liable in damages [under Title IX] . . . where they are
deliberately indifferent to sexual harassment, of which they have actual knowledge,
that is so severe, pervasive, and objectively offensive that it can be said to deprive
the victims of access to the educational opportunities or benefits provided by the
school” (emphasis added)). But the IFA, in declaring even the slightest endorsement
of any of the eight concepts to be per se severe and pervasive, “provides no shelter
for core protected speech.” Honeyfund, 2022 WL 3486962 at *10 (quoting DeJohn,
537 F.3d at 318).
Like Title VII, Title IX provides, with certain exceptions, that “[n]o person in
the United States shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).
This statute, like other antidiscrimination laws, focuses primarily on the act of
excluding, denying, or subjecting an individual to discrimination. Thus, given its
focus on regulating conduct rather than speech, Title IX does not, on its face, run
afoul of the First or Fourteenth Amendment. See, e.g., Hurley v. Irish-Am. Gay,
Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 572 (1995) (“Nor is this statute
unusual in any obvious way, since it does not, on its face, target speech or
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discriminate on the basis of its content, the focal point of its prohibition being rather
on the act of discriminating against individuals in the provision of publicly available
goods, privileges, and services on the proscribed grounds.”); R.A.V., 505 U.S. at 390
(“Where the government does not target conduct on the basis of its expressive
content, acts are not shielded from regulation merely because they express a
discriminatory idea or philosophy.”); Norwegian Cruise Line Holdings, Ltd. v. State
Surgeon Gen., Fla. Dep’t of Health, --- F. 4th ---, 2022 WL 5240425, *7 (11th Cir.
2022) (holding that Florida statute did not implicate First Amendment when it
applied “to non-expressive conduct such as failing to grant persons who are
unwilling or unable to verify their vaccination status access to, entry upon, or service
from the business operations”); Wollschlaeger, 848 F.3d at 1317 (noting that “antidiscrimination laws are not categorically immune from First Amendment
challenges” but that Florida statute at issue “[did] not, on its face, implicate the
spoken or written word”); DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d
591, 596–97 (5th Cir. 1995) (“Where pure expression is involved, Title VII steers
into the territory of the First Amendment. It is no use to deny or minimize this
problem because, when Title VII is applied to sexual harassment claims founded
solely on verbal insults, pictorial or literary matter, the statute imposes contentbased, viewpoint-discriminatory restrictions on speech.”).
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Similarly, the FEEA, prior to the IFA’s amendments, generally did not
“implicate the spoken or written word” on its face. Wollschlaeger, 848 F.3d at 1317.
Instead, it prohibited “[d]iscrimination on the basis of race, color, national origin,
sex, disability, religion, or marital status” against students or employees in the public
education system, consistent with Title IX’s conduct-based prohibition on sex
discrimination in public education. § 1000.05(2)(a), Fla. Stat. (2019).
The statute was amended in 2019 to command public K-20 educational
institutions to treat discrimination “motivated by anti-Semitic intent in an identical
manner to discrimination motivated by race.” See § 1000.05(7), Fla. Stat. (2019).
These amendments include examples of speech-based anti-Semitism. See id. §
1000.05(7)(a)–(b) (“[a]ccusing Jews as a people or the State of Israel of inventing
or exaggerating the Holocaust . . . [a]ccusing Jewish citizens of being more loyal to
Israel, or the alleged priorities of Jews worldwide, than to the interest of their own
nations,” etc.). However, the State of Florida also included the caveat that “criticism
of Israel that is similar to criticism toward any other country may not be regarded as
anti-Semitic.” Id. § 1000.05(7)(b). Moreover, the State of Florida enacted a “savings
clause,” stating that “[n]othing in this subsection shall be construed to diminish or
infringe upon any right protected under the First Amendment,” nor shall it “be
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construed to conflict with federal or state discrimination laws.” Id. § 1000.05(7)(c).54
In 2022, by contrast, the State of Florida did not include such language in the IFA,
notwithstanding the fact that it was enacting a new speech-based restriction that
admittedly amounts to rank viewpoint discrimination.
All this is to say that prior to 2019, the FEEA, like Title VII and Title IX,
largely targeted conduct as opposed to speech. The 2019 anti-Semitism amendments
changed this by specifically targeting speech; however, the State of Florida required
these provisions to be applied (1) in the same manner as federal and state
discrimination laws and (2) so as to avoid any construction that “diminish[es] or
infringe[s] upon any right protected under the First Amendment to the United States
Constitution, or the State Constitution.” § 1000.05(7)(c), Fla. Stat. (2019). Now, the
IFA has added another layer by further targeting speech—namely, expression of a
specific viewpoint—without any nod toward the First Amendment or federal law.55
54
Although these 2019 amendments present an interesting question about the extent to
which the State can restrict anti-Semitic speech in public schools, this provision is not presently
subject to challenge. Nonetheless, even pure speech, like true threats of violence, may be restricted
if it falls within a category of speech that is proscribable under the First Amendment. Compare §
1000.05(7)(a)1., Fla. Stat. (2019) (defining anti-Semitism to include “calling for . . . the killing or
harming of Jews . . . .”) with Virginia v. Black, 538 U.S. 343, 359 (2003) (citing Watts v. United
States, 394 U.S. 705, 708 (1969)) (“[T]he First Amendment also permits a State to ban a ‘true
threat.’ ”). But this Court need not, and does not, reach this issue here.
55
To be clear, this Court does not mean to suggest that simply including a “savings clause”
in a statute targeting speech immunizes that statute from a constitutional challenge. This Court
only highlights the “savings clause” that the State of Florida enacted alongside the anti-Semitism
amendments to juxtapose the different course it took in 2022. It is remarkable that, at least in 2019,
the State of Florida recognized the anti-Semitism amendments arguably implicated the First
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As this Court noted above, simply because the State of Florida says it wants
to reduce racism or sexism in public universities does not give the State of Florida a
safe harbor in which to enact rank viewpoint-based restrictions on protected speech.
Further, it should go without saying that enacting a prophylactic ban on protected
expression of certain viewpoints—in the interest of suppressing those viewpoints
because the State of Florida finds them “repugnant”—is neither sufficiently weighty
nor reasonable. If that were the case, the State of Florida could declare any idea
repugnant and prohibit its professors from expressing approval of that idea while in
the classroom.56
In short, the State of Florida cannot do an end-run around the First
Amendment by declaring which viewpoints are so repugnant to lawmakers that their
Amendment. But in 2022, the State of Florida dropped any pretense of respecting the
Constitution’s limitations on state law.
56
Lest there be any doubt, Justice Alito recently emphasized the principle that viewpoint
discrimination is anathema to the First Amendment in his concurring opinion in Iancu v. Brunetti,
139 S. Ct. 2294, 2302–03 (2019) (Alito, J., concurring). Specifically, in agreeing that a provision
of the Lanham Act violated the Free Speech Clause, Justice Alito opined that “[v]iewpoint
discrimination is poison to a free society. But in many countries with constitutions or legal
traditions that claim to protect freedom of speech, serious viewpoint discrimination is now
tolerated, and such discrimination has become increasingly prevalent in this country.” Id. at 2302.
He emphasized that “At a time when free speech is under attack, it is especially important for [the
Supreme Court] to remain firm on the principle that the First Amendment does not tolerate
viewpoint discrimination.” Id. at 2302–03. And he underscored that the Supreme Court’s decision
in Iancu “is not based on moral relativism but on the recognition that a law banning speech deemed
by government officials to be ‘immoral’ or ‘scandalous’ can easily be exploited for illegitimate
ends.” Id. at 2303 (emphasis added).
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mere utterance, on a single occasion, 57 is per se severe or pervasive and prohibiting
their expression under an antidiscrimination law. Here, “[w]here pure expression is
involved,” the FEEA’s prohibition on “training or instruction that espouses,
promotes, advances, inculcates, or compels” students or employees to believe certain
concepts “steers into the territory of the First Amendment.” DeAngelis, 51 F.3d at
596–97. For these reasons, unlike in Bishop, this second factor adds little weight to
Defendants’ side of the scale. The State of Florida’s position as a public employer
and its asserted interest in combatting racism or sexism does not justify enforcing a
viewpoint-based restriction targeting protected speech.
Which leads this Court to consider Bishop’s third factor; namely, “the strong
predilection for academic freedom as an adjunct of the free speech rights of the First
Amendment.” 926 F.2d at 1075. In Bishop, the Eleventh Circuit determined that—
under the facts of that case—once the University of Alabama deemed his religious
discussions to be outside the scope of his course’s curriculum, Dr. Bishop had a
weak interest in academic freedom to support his contention that he should be free
to discuss his religious beliefs while teaching his exercise physiology course and
holding “after-class” meetings in connection with that course. Id. at 1076 (“In short,
57
Indeed, even a single instance of discriminatory conduct often is not considered per se
discrimination under the federal laws to which Defendants hope to link the IFA. See, e.g.,
McNorton v. Ga. Dep’t of Transp., 619 F. Supp. 2d 1360, 1377 (N.D. Ga. 2007) (noting “it is fairly
well established that a single instance of touching an employee’s buttock, such as the case here, is
not serious enough to support a claim for sexual harassment”).
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Dr. Bishop and the University disagree about a matter of content in the course he
teaches. The University must have the final say in such a dispute.”). Certainly,
“academic freedom” does not justify a professor hijacking their class discussion to
focus on matters outside the established curriculum.
But here, in these cases now before this Court, Plaintiffs’ free speech claims
present an interest in academic freedom of the highest degree. Professor Plaintiffs
are not attempting to alter the permitted curriculum. Instead, they seek to prevent the
State of Florida from imposing its orthodoxy of viewpoint about that curriculum in
university classrooms across the state. According to the State of Florida, so long as
professors avoid promotion of one side of a particular idea—or do the State of
Florida’s bidding and condemn those ideas that the State has deemed unworthy—
professors need fear no consequences from the State.58 But to step out of line during
class and utter a single expression of approval of one of the State of Florida’s
disfavored ideas is to risk discipline or even termination. In other words, the State
of Florida says that to avoid indoctrination, the State of Florida can impose its own
orthodoxy and can indoctrinate university students to its preferred viewpoint. This
extravagant doublespeak flies in the face of “the invaluable role academic freedom
plays in our public schools, particularly at the post-secondary level . . . .” Bishop,
58
That is not to say that acquiescence to the State of Florida’s preferred orthodoxy would
not impose any personal, spiritual, or intellectual consequences upon professors who fall in line.
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926 F.2d at 1075. As the Supreme Court has previously announced, “[t]eachers and
students must always remain free to inquire, to study and to evaluate, to gain new
maturity and understanding; otherwise our civilization will stagnate and die.”
Keyishian, 385 U.S. at 603 (quoting Sweezy, 354 U.S. at 250).
The IFA is antithetical to academic freedom and has cast a leaden pall of
orthodoxy over Florida’s state universities. Neither the State of Florida’s authority
to regulate public school curriculum, nor its interest in preventing race or sex
discrimination can support its weight. Nor does the First Amendment tolerate it. In
this case, unlike in Bishop, the interest in academic freedom weighs heavily in
Plaintiffs’ favor.
*
*
*
In sum, Bishop’s balancing test—as applied to the facts before this Court—
favors Plaintiffs’ free speech rights over Defendants’ enforcement of a viewpointdiscriminatory ban targeting protected speech. In Bishop, the Eleventh Circuit was
presented with facts supporting the University’s weighty interest in setting
curriculum and avoiding an establishment violation, versus a professor’s weak
interest in academic freedom to discuss matters outside the scope of his course’s
curriculum. Here, this Court is presented with the reverse—namely, the State of
Florida’s weak interest in employing viewpoint-based restrictions targeting pure
expression to combat racism, versus the weighty interest in academic freedom to
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instruct university students free from the State’s chosen orthodoxy of viewpoint. On
balance, given the context of these cases, the IFA unreasonably burdens the Professor
Plaintiffs’ speech. Defendants cannot, through the IFA, prophylactically muzzle
professors from expressing certain viewpoints about topics that the State of Florida
has deemed fair game for classroom discussion. Doing so in the name of reducing
racism does not insulate the State from the First Amendment’s reach.
“The college classroom with its surrounding environs is peculiarly the
‘marketplace of ideas,’ ” Healy, 408 U.S. at 180–81, and the State cannot allow its
universities to only package its merchandise in the State’s favorite color. “The
Nation’s future depends upon leaders trained through wide exposure to that robust
exchange of ideas which discovers truth ‘out of a multitude of tongues, rather than
through any kind of authoritative selection.’ ” Keyishian, 385 U.S. at 603 (quoting
United States v. Associated Press, D.C., 52 F. Supp. 362, 372 (S.D.N.Y. 1943)).
Having balanced the context, the State’s asserted interest, and the strong predilection
for academic freedom in the context of these cases, this Court concludes that the
State of Florida, as an employer and educator, cannot restrict university employees
from expressing a disfavored viewpoint about a matter within the established
curriculum while instructing on that curriculum. Such viewpoint discrimination “is
poison to a free society.” Iancu, 139 S. Ct. at 2302 (Alito, J., concurring).
Accordingly, the Professor Plaintiffs have demonstrated a substantial likelihood of
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success on the merits as to their free speech claims. And because Mr. Rechek’s rightto-receive information claim is coextensive with Professor Novoa’s free speech
claim (as discussed supra), this Court concludes that Mr. Rechek has demonstrated
a substantial likelihood of success on the merits as to his right-to-receiveinformation claim.
Next, this Court considers Plaintiffs’ vagueness challenge.
D
Even if the IFA did not violate the First Amendment for the reasons set out
above, Plaintiffs argue, the IFA is impermissibly vague in violation of the Fourteenth
Amendment’s Due Process Clause. This Court agrees for the reasons set out below.
Vagueness, an outgrowth of the Due Process Clause, reflects the
“fundamental principle in our legal system . . . that laws which regulate persons or
entities must give fair notice of conduct that is forbidden or required.” FCC v. Fox
TV Stations, Inc., 567 U.S. 239, 253 (2012). A law can be impermissibly vague for
two distinct reasons. Hill, 530 U.S. at 732. “First, if it fails to provide people of
ordinary intelligence a reasonable opportunity to understand what conduct it
prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory
enforcement.” Id. (citing Chicago v. Morales, 527 U.S. 41, 56–57 (1999)). And
while vagueness descends from the Fifth and Fourteenth Amendments, a vague law
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also “raises special First Amendment concerns because of its obvious chilling effect
on free speech.” Reno v. ACLU, 521 U.S. 844, 871–72 (1997).
When statutes are vague, “ ‘the hazard or loss or substantial impairment of
those precious [First Amendment] rights may be critical,’ since those covered by the
statute are bound to limit their behavior to that which is unquestionably safe.”
Keyishian, 385 U.S. at 609 (quoting Dombrowski v. Pfister, 380 U.S. 479, 488
(1965)). Thus, although “[v]ague laws in any area suffer a constitutional infirmity,”
“[w]hen First Amendment rights are involved,” this Court must “look even more
closely lest, under the guise of regulating conduct that is reachable by the police
power, freedom of speech or of the press suffer.” Ashton v. Kentucky, 384 U.S. 195,
200 (1966).
This Court begins by construing the challenged provisions at issue, ever
mindful of its duty to construe statues as constitutional when possible. Boos v. Barry,
485 U.S. 312, 330–31 (1988). The nature of this duty depends on whether a state or
federal law is at issue. For federal laws, this Court has a “duty to avoid constitutional
difficulties by [adopting a limiting construction] if such a construction is fairly
possible.” Id. at 331. For state laws, however, “federal courts are without power to
adopt a narrowing construction . . . unless such a construction is reasonable and
readily apparent.” Id. at 330; see also Gooding v. Wilson, 405 U.S. 518, 520 (1972)
(noting that “[o]nly [state] courts can supply the requisite construction” to save an
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otherwise vague and overbroad statute). Thus, this Court can adopt a narrowing
construction of the IFA—a state law—only if such a construction is both reasonable
and readily apparent.
With these considerations in mind, this Court turns to the text. To reiterate,
the IFA added a definition of discrimination to the FEEA as follows:
(4)(a) It shall constitute discrimination on the basis of race, color,
national origin, or sex under this section to subject any student or
employee to training or instruction that espouses, promotes, advances,
inculcates, or compels such student or employee to believe any of the
following concepts:
1. Members of one race, color, national origin, or sex are morally
superior to members of another race, color, national origin, or sex.
2. A person, by virtue of his or her race, color, national origin, or
sex is inherently racist, sexist, or oppressive, whether consciously or
unconsciously.
3. A person’s moral character or status as either privileged or
oppressed is necessarily determined by his or her race, color, national
origin, or sex.
4. Members of one race, color, national origin, or sex cannot and
should not attempt to treat others without respect to race, color, national
origin, or sex.
5. A person, by virtue of his or her race, color, national origin, or
sex bears responsibility for, or should be discriminated against or
receive adverse treatment because of, actions committed in the past by
other members of the same race, color, national origin, or sex.
6. A person, by virtue of his or her race, color, national origin, or
sex should be discriminated against or receive adverse treatment to
achieve diversity, equity, or inclusion.
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7. A person, by virtue of his or her race, color, sex, or national
origin, bears personal responsibility for and must feel guilt, anguish, or
other forms of psychological distress because of actions, in which the
person played no part, committed in the past by other members of the
same race, color, national origin, or sex.
8. Such virtues as merit, excellence, hard work, fairness,
neutrality, objectivity, and racial colorblindness are racist or sexist, or
were created by members of a particular race, color, national origin, or
sex to oppress members of another race, color, national origin, or sex.
§ 1000.05(4)(a)1.–8., Fla. Stat. (2022). This provision also contains a savings clause,
stating that the foregoing “may not be construed to prohibit discussion of the
concepts listed therein as part of a larger course of training or instruction, provided
such training or instruction is given in an objective manner without endorsement of
the concepts.” § 1000.05(4)(b), Fla. Stat. (2022).
In addition, the Board of Governors issued an implementing regulation on
August 26, 2022, which finalized the Board of Governors’s enforcement mechanism
with respect to section 1000.05(4)(a), Florida Statutes (2022). See ECF No. 1-2, in
Case No.: 4:22cv324-MW/MAF (Regulation 10.005 Prohibition of Discrimination
in University Training or Instruction); see also Regulation 10.005, available at
https://www.flbog.edu/wp-content/uploads/2022/08/10.005-Prohibition-ofDiscrimi
nation-in-University-Training-or-Instruction.pdf (last visited Oct. 25, 2022). The
regulation identifies the eight concepts of section 1000.05(4)(a), Florida Statutes
(2022), and requires “[e]ach university” to “have a university regulation that
prohibits discrimination on the basis of race, color, national origin, or sex by
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subjecting any student or employee to training or instruction that espouses,
promotes, advances, inculcates, or compels such student or employee to believe any”
of those concepts. Id. at 2–3. Likewise, the regulation requires universities to note
in their own regulations that the prohibition concerning the eight topics “does not
prohibit discussion of the concepts as part of a larger course of training or instruction,
provided such training or instruction is given in an objective manner without
endorsement of the concepts.” Id. at 3.
Plaintiffs first argue that the eight concepts themselves are riddled with
undefined terms so vague that they cannot determine what speech is prohibited.
Borrowing from this Court’s discussion in Honeyfund of identical concepts specified
under Chapter 760, the Pernell Plaintiffs highlight some of the myriad ambiguities
present in the challenged provisions. See, e.g., ECF No. 13 at 36–39, in Case No.:
4:22cv304-MW/MAF; ECF No. 13-5 ¶ 15 (Sandoval Declaration) (“But my
instruction could [be] perceived as violating the Stop W.O.K.E. Act by promoting
the concept that my students should not attempt to treat their audience without
respect to their racial identities—a concept I’m not even sure how to interpret.
Indeed, [this concept] has become the center of conversations and questions I engage
in with colleagues, because nobody can figure out what it means.”); id. ¶ 24 (noting
ambiguity about “objectivity”).
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Defendants respond that the concepts are not vague because they use “plain,
everyday language” with an “ordinary or natural meaning” that is “commonly
known or can easily be discerned.” ECF No. 52 at 33, in Case No.: 4:22cv304MW/MAF (quoting Tracy v. Fla. Atl. Univ. Bd. of Trs., 980 F.3d 799, 807 (11th Cir.
2020)). Defendants further assert the plain language of the challenged provisions
must be judged by a more forgiving standard, because they regulate the speech of
public employees, not the public at large. Id. at 34.
As this Court previously noted in Honeyfund, Defendants are correct in the
sense that the IFA is not rendered vague merely because it does not define its terms.
See Honeyfund, 2022 WL3486962, at *12 (citing Asgrow Seed Co. v. Winterboer,
513 U.S. 179, 187 (1995) (“When terms used in a statute are undefined, we give
them their ordinary meaning.”)). Nonetheless, as this Court previously made clear—
both in Honeyfund and at the hearing on Plaintiffs’ motions—the fact that the IFA
uses real words found in an English dictionary does not magically extinguish
vagueness concerns. See Honeyfund, 2022 WL3486962, at *12 (citing Yates v.
United States, 574 U.S. 528, 537 (2015) (“Whether a statutory term is unambiguous
. . . does not turn solely on dictionary definitions of its component words.”)).
Here, however, Defendants throw out their dictionary definitions from
Honeyfund in favor of restatements of the statutory text and emphasis on the
vagueness standard for public employees—namely whether “ ‘ordinary persons
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using ordinary common sense would be notified that certain conduct will put them
at risk’ of violating the Act.” ECF No. 52 at 33, in Case No.: 4:22cv304-MW/MAF
(quoting O’Laughlin v. Palm Beach Cnty., 30 F.4th 1045, 1055 (11th Cir. 2022)).
But Defendants’ change of tack and new emphasis on “common sense” only
emphasizes the vagueness of the challenged provisions, particularly when it comes
to the “objective instruction” savings clause discussed at length below.
Defendants may be right that some of the eight concepts are not vague. But
some certainly are, even under this “ordinary person using common sense” test for
public employees. For example, concept four is mired in obscurity, bordering on the
unintelligible. Under that provision, educators cannot endorse the view that
“[m]embers of one race, color, sex, or national origin cannot and should not attempt
to treat others without respect to race, color, sex, or national origin.”
§ 760.10(8)(a)(4), Fla. Stat. (emphases added). As this Court recognized in
Honeyfund, concept four thus features a rarely seen triple negative, resulting in a
cacophony of confusion. See Ne. Pa. Freethought Soc’y v. Cnty. of Lackawanna
Transit Sys., 938 F.3d 424, 437 n.2 (3d Cir. 2019) (striking down prohibition on
political speech with “a tangle of double negatives that [was] vague enough to
ensnare nearly any message” and lacked “a sufficiently definite standard . . . to
exercise discretion”); Albanese v. McGinnis, 823 F. Supp. 521, 563 (N.D. Ill. 1993)
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(“Triple negatives are not conducive to comprehension.”). It is unclear what is
prohibited and even less clear what is permitted.
Defendants’ effort to clear things up amounts to rewriting the provision: “to
say that an individual ‘cannot and should not’ try to treat people the same no matter
their race is to say that the individual is either unable or should be unwilling to treat
people the same regardless of their race.” ECF No. 52 at 36–37, in Case No.:
4:22cv304-MW/MAF. But canceling out two of the negatives—i.e., educators
cannot endorse the view that members of one demographic can and should attempt
to treat others with respect to the listed characteristics—does little good. Does this
prohibit anything other than colorblindness? Does it ban topics such as affirmative
action and diversity? Can educators acknowledge their students’ differing cultural
backgrounds? In sum, concept four is “so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application.” Connally v.
Gen. Constr. Co., 269 U.S. 385, 391 (1926).
Regardless of whether some of the eight concepts are vague, however,
Plaintiffs claim the entire statute is rendered vague by the provision permitting
“discussion” of the concepts if “given in an objective manner without endorsement.”
ECF No. 13 at 39, in Case No.: 4:22cv304-MW/MAF; ECF No. 19 at 44–45, in Case
No.: 4:22cv324-MW/MAF. Rather than resorting again to dictionary definitions,
Defendants respond by pointing to some of the Pernell Plaintiffs’ declarations,
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which note their research and teaching challenges the notion of “objectivity.”
Defendants assert the law is not vague because these professors “obviously must
have some understanding of what ‘the notion of objectivity’ is in the first place.”
ECF No. 52 at 35, in Case No.: 4:22cv304-MW/MAF. But this is another red herring.
Simply because some of the Pernell Plaintiffs challenge the “ideal” of “objectivity”
with respect to their areas of study, ECF No. 13-4 ¶ 29, or situate their approach to
research and teaching through a “positionality” lens as opposed to an “objectivity”
lens, ECF No. 13-5 ¶ 17, does not make the IFA any less vague when it comes to
how section 1000.05(4)(b) and its implementing regulation will be applied to future
instruction or training.
Indeed, Defendants’ decision to avoid referencing any respected lexicon is
unsurprising given that Defendants’ preferred construction of “objectivity” ignores
any plain meaning of the term and fails to square with any commonsense
understanding. Indeed, in Honeyfund, counsel for Defendants—who, as mentioned
above, are the same lawyers now representing Defendants in the cases at issue
here—relied upon the Merriam-Webster Dictionary to define “objective,” noting
that “ ‘to discuss a concept in an objective manner’ is, obviously, to discuss it by
‘expressing or dealing with facts or conditions as perceived without distortion by
personal feelings, prejudice or interpretation.’ ” Honeyfund, 2022 WL 3486962, at
*14. But now, defense counsel ignores Merriam-Webster and doubles down on the
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idea that “objective” equals discussing without approval and/or criticizing or
condemning the specified ideas.
For example, Defendants emphasize that “[t]he statute’s dichotomy between
discussing a concept ‘in an objective manner’ as distinct from ‘endorsing’ or
‘espousing’ the concept provides more than fair notice of what is prohibited.” ECF
No. 52 at 35–36, in Case No.: 4:22cv304-MW/MAF. According to Defendants, the
plain meaning of “objective,” when read together with “endorsing” or “espousing,”
allows for discussion of the eight concepts “as concepts that others have articulated”
but not for “voicing approval the concepts”—for example, “saying the concept is
correct or true.” Id. at 36. Thus, Defendants suggest it is obvious that “objective”
means, simply, “without approval.”
Of course, Defendants’ construction redefines the notions of both
“objectivity” and “criticism.” As the Novoa Plaintiffs succinctly put it, “[i]t suggests
that speech condemning a viewpoint is objective, but approving a viewpoint renders
the teaching unobjective.” ECF No. 19 at 44–45, in Case No.: 4:22cv324-MW/MAF.
Defendants dig their heels into this doublespeak while relying upon other
notions of “objectivity” that arguably contradict their own point.59 For example,
59
Even the definition of “objective” provided by the IFA’s sponsor, Representative (thenSpeaker pro tempore) Bryan Avila, seems contradictory. When asked to define what it means to
teach something from an objective standpoint under the IFA, Representative Avila stated,
“[S]omething that would compel someone to feel a sense of guilt, or a sense of anguish, or
something to that extent . . . would certainly violate that piece of being objective within a
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Defendants cite the Florida Board of Education’s “useful, albeit obvious, description
of the distinction between discussion and endorsement.” ECF No. 52 at 36, in Case
No.: 4:22cv304-MW/MAF. The quoted rule suggests that “teachers serve as
facilitators for student discussion and do not share their personal views or attempt to
indoctrinate or persuade students to a particular point of view.” Id. (emphasis added)
(quoting Fla. Admin. Code Ann. R. 6A-1.0941424(3)(c)). 60 But this quoted language
suggests that teachers should avoid persuading students “to a particular point of
view,” either by approving of particular viewpoints or by criticizing those
classroom.” See ECF No. 19-12, in Case No.: 4:22cv324-MW/MAF (January 26, 2022, House
Judiciary Committee Hearing). Thus, Representative Avila’s definition of “objective” hinges upon
the subjective response of the professor’s students. Such a standard can hardly be considered
objective in any sense of the word. Indeed, it makes it impossible for a professor to know for
certain what speech violates the IFA. To put it plainly, Representative Avila’s view of the IFA
offers a heckler’s veto to the professor’s students. His understanding of “objectivity” would force
professors to walk on eggshells when discussing certain topics to avoid upsetting the most sensitive
or unreasonable student in class. How, under such a standard, would a professor be able to discuss
topics like discrimination, racism, or even the civil rights movement and know beforehand which
viewpoints are allowed if a student like Richard Spencer, or any other white supremacist, was
enrolled in their course? See, e.g., National Policy Institute’s Richard Spencer speaking
engagement confirmed for Oct 19 at UF, University of Florida Media Advisory,
https://news.ufl.edu/for-media/media-advisories/archive/2017/10/national-policy-institutes-richa
rd-spencer-speech-confirmed-for-oc.html (last visited Nov. 2, 2022) (noting that “UF leadership
has denounced Spencer’s white supremacist rhetoric”).
60
Defendants do not cite the full rule. Rule 6A-1.0941424(3)(c) provides in full, “Efficient
and faithful teaching further means that any discussion is appropriate for the age and maturity level
of the students, and teachers serve as facilitators for student discussion and do not share their
personal views or attempt to indoctrinate or persuade students to a particular point of view that is
inconsistent with the Next Generation Sunshine State Standards and the Benchmarks for Excellent
Student Thinking (B.E.S.T.) Standards.” It thus defines “efficient and faithful teaching” to include
refraining from sharing personal views or persuading students to points of view that are
inconsistent with state standards applicable to public K-12 schools. See § 1003.42(2), Fla. Stat.
(2022).
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viewpoints during class discussion. In other words, the quoted rule would have
teachers avoid both praise and criticism of a particular idea to steer clear of
“indoctrination.”
Defendants further displayed their nonsensical reading of “objective” during
the hearing on Plaintiffs’ motions. When asked whether a professor who wished to
instruct on one or some of the eight concepts in an “objective” manner would run
afoul of the challenged provisions by inviting knowledgeable guest speakers to
discuss both the pros and the cons of one of the concepts, defense counsel argued
that the “statute is very clear,” and you would have to analyze the two guest speakers
“apart from each other, not necessarily in conjunction with each other.” Tr. at 80–
81. In so doing, defense counsel suggested that a guest speaker who promoted one
of the eight concepts as part of a classroom debate where all sides of the issue were
represented would still run afoul of the law. See id. Thus, according to defense
counsel, “objective” instruction allows for only one side of the debate in Florida’s
public universities—or for no debate at all.
All this is to say that the plain meaning of the “objective” instruction
provisions is utterly ambiguous. Assuming, arguendo, that this Court construes
“objective” to mean “expressing or dealing with facts or conditions as perceived
without distortion by personal feelings, prejudice or interpretation,” Honeyfund,
2022
WL
3486962,
at
*14
(quoting Objective,
119
Merriam-Webster.com,
Case 4:22-cv-00324-MW-MAF Document 44 Filed 11/17/22 Page 120 of 139
https://bit.ly/3zcLbB1 (last visited October 24, 2022)), the term loses that meaning
when paired with the adverbial phrase “without endorsement of the concepts.”
Simply put, “objective” instruction allows for the most zealous condemnation of the
eight concepts—motivated by an instructor’s own personal prejudice or biases—but
apparently permits not a single classroom debate between instructors or guest
speakers who wish to promote the merits of their position, so long as one of their
viewpoints falls on the list of specified concepts. The State of Florida has redefined
“objectivity” in a manner that does not comport with common sense. No ordinary
person would understand “objective” instruction to allow for this imbalance. 61 Cf.
Arnett v. Kennedy, 416 U.S. 134, 159–60 (1974) (holding that federal statute
authorizing discharge of federal employees for “such cause as will promote the
efficiency of the service” was neither void for vagueness nor overbroad in light of
“longstanding principles of employer-employee relationships” and “[the availability
of legal counsel] to employees who [sought] advice on the interpretation of the Act
and its regulations”); see also San Filippo v. Bongiovanni, 961 F.2d 1125, 1137 (3d
Cir. 1992) (rejecting vagueness challenge to university regulation that permitted
61
Indeed, Representative Avila suggested that the Florida Legislature was more concerned
about teachers injecting any personal opinions into the class discussion. See ECF No. 19-1 at 8
(“We’re not saying that you can’t have those discussions. What we’re saying is you can’t inject
your own personal point of view into the discussion.”). But the challenged provisions don’t just
regulate personal opinions—they also prohibit any viewpoint, whether personally held or not, that
contradicts the State’s opinion on the specified concepts. Indeed, it bears repeating that the IFA
considers professors who inject their own point of view condemning the specified topics to be
teaching in an “objective manner.”
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dismissal for failure to maintain “standards of sound scholarship and competent
teaching,” and noting “[a] reasonable ordinary person using his common sense and
general knowledge of employer-employee relationships would have fair notice that
the conduct the University charged [appellant] with put him at risk of dismissal” and
that “[i]t is not unfair or unforeseeable for a tenured professor to be expected to
behave decently towards students and coworkers, to comply with a superior’s
directive, and to be truthful and forthcoming in dealing with payroll, federal research
funds or applications for academic positions”).
Defendants’ remaining arguments are unpersuasive. Defendants assert that
because the term “objective” is used in a collective bargaining agreement governing
a portion of university faculty, Plaintiffs “cannot credibly claim” they are unable to
understand the term as it’s used in the challenged provisions. For starters, Professor
Novoa is not subject to the cited collective bargaining agreement and cannot be held
to understand language which does not bind her. See ECF No. 39 at 27, in Case No.:
4:22cv324-MW/MAF. At most, only one of the cited collective bargaining
agreements, ECF Nos. 19-7 and 19-9, in Case No.: 4:22cv324-MW/MAF, appears
to bind Plaintiff Almond, as he is the only professor from FSU who is a party to this
litigation.
More importantly, the fact that “objective and skillful” instruction is included
in a collective bargaining agreement for other university professors does not make
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the challenged provisions any less vague. Instead, the exhibits Defendants cite for
this proposition undermine their point. For example, the Valencia College guidance
for faculty and deans, ECF No. 19-9, in Case No.: 4:22cv324-MW/MAF, construes
the challenged language “in an objective manner without endorsement” to be
consistent with the College’s existing policy on academic freedom, which requires
professors to “present such matters objectively and skillfully.” Id. at 5. In offering
the College’s “best understanding” of each of the concepts, the guidance
recommends “including multiple perspectives on them,” in order to present those
eight concepts “objectively.” Id. at 7. But as noted above, Defendants construe the
challenged provisions such that even presenting multiple perspectives may still run
afoul of the “objective” instruction savings clause if the instructor happens to
“promote” or “endorse” one of the concepts in the process. These attempts to
reconcile the challenged provisions with their own policies on academic freedom
demonstrate the disconnect between this new notion of “objectivity” and the
institutions’ common-sense understanding of the term.
Furthermore, Defendants assert “the scienter requirement in the Act and the
Board’s Regulation 10.005 eliminates [sic] any genuine vagueness concerns.” ECF
No. 52 at 39, in Case No.: 4:22cv304-MW/MAF. This Court understands that “a
scienter requirement may mitigate a law’s vagueness, especially with respect to the
adequacy of notice that the conduct is proscribed.” United States v. Biro, 143 F.3d
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1421, 1430 (11th Cir. 1998) (cleaned up). But Defendants identify no explicit
scienter requirement in the statute with respect to instructors’ actions. Indeed, they
rely on the notion that the terms “espouses, promotes, advances, inculcates, or
compels” imply a state of mind. And even if these actions imply a state of mind
necessary to violate the challenged provisions’ broad prohibitions on expressing
certain viewpoints, they do nothing to clarify how a professor can continue to
incorporate such discussions in their classrooms in an “objective” manner without
violating the law.
Defendants’ reliance on Regulation 10.005 concerning enforcement of the
IFA against individual professors is similarly misplaced. Defendants assert that the
Board’s enforcement procedure helps eliminate any risk of arbitrary enforcement.
ECF No. 52 at 39, in Case No.: 4:22cv304-MW/MAF. Not so.
The regulation provides that in the event “an instruction or training is [found
to be] inconsistent with the university regulation [prohibiting expression of
viewpoints in favor of the eight concepts],” the university “shall . . . take prompt
action to correct the violation.” See Regulation 10.005(3)(c), available at
https://www.flbog.edu/wp-content/uploads/2022/08/10.005-Prohibition-of-Discrim
ination-in-University-Training-or-Instruction.pdf (last visited Oct. 25, 2022). Such
“prompt action” includes “mandating that the employee(s) responsible for the
instruction or training modify it to be consistent with the university regulation,
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issuing disciplinary measures where appropriate and remove, by termination if
appropriate, the employee(s) if there is a failure or refusal to comply with the
mandate.” Id. In support of their argument, Defendants distort this mechanism as
one which “reserve[es] punishment to only examples where an employee refuses to
correct prohibited teaching.” ECF No. 52 at 39, in Case No.: 4:22cv304-MW/MAF.
But as the regulation’s plain language states, removal—including termination—may
also occur if there is merely a “failure” to comply with the university’s mandate.
This “failure” requires no affirmative knowing or willful act on the professor’s part.
Instead, a professor may mistakenly overstep the State’s viewpoint ban in a goodfaith attempt to teach “objectively”—and can be fired as a result.
As this Court noted in Honeyfund, things are not as simple as Defendants
portray. See 2022 WL 3486962, at *13 (“To start, few terms are as loaded and
contested as ‘objective.’ And many would suggest that it is impossible to discuss a
concept—or anything for that matter—‘as perceived without distortion by personal
feelings, prejudice, or interpretation.’ This is especially true when discussing
concepts rooted in historical phenomena, like systemic racism, critical race theory,
white privilege, and male privilege.”). “As Justice Stevens observed, ‘[i]t is hardly
a novel insight that history is not an objective science . . . . The historian must choose
which pieces to credit and which to discount, and then must try to assemble them
into a coherent whole.’ ” Id. (quoting McDonald v. City of Chi., 561 U.S. 742, 907
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(2010) (Stevens, J., dissenting)). “And such objective discussion, if attainable, is
even more difficult with respect to controversial matters like the eight prohibited
concepts here, where many, including Defendants, question their legitimacy.” Id.
Lacking explicit standards to circumscribe enforcement of “objectivity,”
Defendants can weaponize this term to further discredit the eight concepts in the
“marketplace of ideas,” which now permits endorsement of only one side of the
debate. Accordingly, because this “objectivity” savings clause commands the entire
statute, the IFA is impermissibly vague on its face in violation of the Due Process
Clause of the Fourteenth Amendment.62
E
Finally, this Court considers the Novoa Plaintiffs’ overbreadth claim.63 While
laws that fail to clearly define their prohibitions are void for vagueness, “[a] clear
and precise enactment may nevertheless be ‘overbroad’ if in its reach it prohibits
62
This Court need not confront severability because the unconstitutionally vague
“objectivity” savings clause, which governs both the challenged statute and regulation, renders the
provisions as a whole unconstitutionally vague. Thus, even if the IFA’s amendments to the FEEA
did not constitute an unconstitutional viewpoint-based restriction on speech and some of the eight
concepts were not vague, the entire provision would still be unconstitutionally vague in violation
of the Fourteenth Amendment’s Due Process Clause. Accordingly, the Pernell Plaintiffs have
standing to enjoin the members of the Board of Governors from enforcing the “objectivity” savings
clause with respect to all eight concepts. The Novoa Plaintiffs are entitled to a more limited
injunction against the members of the Board of Governors and the members of the USF Board of
Trustees with respect to the concepts they have standing to challenge and which implicate the
“objectivity” savings clause.
63
The Pernell Plaintiffs have not raised an overbreadth claim. Thus, this Court’s analysis
is limited to the briefing in the Novoa case.
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constitutionally protected conduct.” Grayned, 408 U.S. at 114. Overbroad laws
violate the First Amendment because they punish “a ‘substantial’ amount of
protected free speech, ‘judged in relation to the statute’s plainly legitimate
sweep.’ ” Virginia v. Hicks, 539 U.S. 113, 118–19 (2003) (quoting Broadrick v.
Oklahoma, 413 U.S. 601, 615 (1973)).
Here, the Novoa Plaintiffs argue that the IFA “lacks any legitimate purpose”
and, thus, “is always overbroad in relation to its legitimate sweep.” ECF No. 19 at
43, in Case No.: 4:22cv324-MW/MAF. This Court agrees that the challenged
provisions lack any legitimate sweep. As articulated above, the challenged
provisions of the IFA unconstitutionally discriminate on the basis of viewpoint in
violation of the First Amendment and are impermissibly vague in violation of the
Fourteenth. Thus, under either analysis, the challenged provisions of the IFA have
no legitimate sweep. And the very concept of overbreadth presupposes that there is
some legitimate sweep. So, because the challenged provisions have no legitimate
sweep, the overbreadth doctrine does not apply. Thus, this Court concludes that
Plaintiffs have not demonstrated a likelihood of success on the merits for their
overbreadth claim, given the challenged provisions’ lack of legitimate sweep against
which to judge any alleged overbreadth. This is simply the wrong vehicle by which
to challenge the statute.
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V
A
Recall that the remaining preliminary injunction factors are (1) that Plaintiffs
will suffer irreparable injury absent an injunction, (2) that the harm to Plaintiffs of
not granting an injunction outweighs the harm an injunction would cause
Defendants, and (3) that the injunction would not be adverse to the public interest.
Siegel, 234 F.3d at 1176. Here, the remaining preliminary injunction factors are
thoroughly intertwined with considerations already discussed regarding the merits
of Plaintiffs’ claims. On balance, these factors weigh in favor of granting Plaintiffs’
motion for preliminary injunction.
First, absent an injunction, Plaintiffs will suffer irreparable injury because an
ongoing First Amendment violation—which the IFA inflicts—constitutes
irreparable injury. Speech First, Inc., 32 F.4th at 1128. Second, weighing Plaintiffs’
First Amendment injury against Defendants’ interest, the scale tips decisively in
Plaintiffs’ favor. See KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1272
(11th Cir. 2006). This is because the state “has no legitimate interest in enforcing an
unconstitutional ordinance.” Id. Third, an injunction would not be adverse to the
public interest. After all, as noted above, “[t]he public has no interest in enforcing
an unconstitutional ordinance.” Id. at 1272–73. And as the Supreme Court has
recognized, “[t]he First Amendment, in particular, serves significant societal
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interests.” First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 776 (1978). Plus, the
portions of the FEEA that the IFA did not amend remain in effect to protect
Floridians from discrimination in education.
In sum, because Plaintiffs have carried their burden as to all four of the
preliminary injunction factors, this Court finds that they are entitled to a preliminary
injunction.
B
Having determined the merits of Plaintiffs’ motions, this Court must now
decide the scope of relief to which they are entitled. Here, Plaintiffs present their
case as a facial challenge to the IFA and implementing regulation. Although a party’s
characterization of their challenge as facial or as-applied is not determinative, Jacobs
v. Fla. Bar, 50 F.3d 901, 905 n.17 (11th Cir. 1995), this Court agrees that Plaintiffs
bring facial challenges in both their First Amendment viewpoint discrimination and
Fourteenth Amendment vagueness claims.
“A facial challenge is an attack on a statute itself as opposed to a particular
application.” City of L.A. v. Patel, 576 U.S. 409, 415 (2015). Plaintiffs’ First
Amendment claims are facial challenges because they attack the validity of the IFA
and Regulation 10.005, rather than any particular application of the IFA or
Regulation 10.005. See ECF No. 1 ¶¶ 211–218, in Case No: 4:22cv304-MW/MAF;
ECF No. 1 ¶¶ 271–285, in Case No: 4:22cv324-MW/MAF. The same is true with
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respect to their Fourteenth Amendment vagueness challenges. See ECF No. 1 ¶¶
226–232, in Case No: 4:22cv304-MW/MAF; ECF No. 1 ¶¶ 334–355, in Case No:
4:22cv324-MW/MAF.
Considering the nature of Plaintiffs’ claims, this Court must next decide
whether Plaintiffs have met their burden to obtain facial relief. “[A] plaintiff must
establish that a ‘law is unconstitutional in all of its applications’ ” to get facial relief.
Patel, 576 U.S. at 418 (quoting Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442, 449 (2008)). Here, Plaintiffs make that showing as to both their First
Amendment viewpoint discrimination claims and their Fourteenth Amendment
vagueness claims.
For their First Amendment viewpoint discrimination claims, Plaintiffs
demonstrate that the IFA and Regulation 10.005 impermissibly discriminate based
on viewpoint. “The facial viewpoint bias in the law results in viewpointdiscriminatory applications.” Iancu, 139 S. Ct. at 2299–300. Discriminating based
on viewpoint—and running afoul of “a core postulate of free speech law”—removes
the need for this Court to “pause to consider whether the [viewpoint restriction]
might admit some permissible applications . . . before striking it down.” Id. at 2300,
2302. And as for Plaintiffs’ Fourteenth Amendment claims, the vagueness of the
objectivity “savings clause,” included in both the IFA and the regulation, implicates
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any training or instruction on the IFA’s eight concepts, leaving the statute and
Regulation 10.005 unconstitutionally vague in all of their applications.
Accordingly, Plaintiffs are entitled to facial relief on both their First
Amendment viewpoint discrimination claims and their Fourteenth Amendment
vagueness claims. The members of the University of South Florida Board of Trustees
are prohibited from enforcing the IFA and Regulation 10.005 against their respective
employees as to the concepts for which Plaintiff Novoa has standing. The members
of the Board of Governors, however, are prohibited from enforcing the IFA and
Regulation 10.005 against any state university. Here’s why.
Only one Plaintiff needs standing to challenge a Defendant’s enforcement of
the IFA and Regulation 10.005. See Rumsfeld, 547 U.S. at 53 n.2. Each Plaintiff
established standing against the members of Board of Governors and, as this Court
discussed above, Plaintiffs are entitled to facial relief on both their First Amendment
viewpoint discrimination and Fourteenth Amendment vagueness claims. Facial
relief extends to any entity subject to the Board of Governor’s enforcement of the
IFA and Regulation 10.005—in other words, all state universities. Accordingly, the
members of the Board of Governors are enjoined from enforcing the challenged
provisions with respect to all state universities for each concept that the individual
Plaintiffs have standing to challenge. As set out in detail in this Court’s discussion
on standing, the Pernell Plaintiffs have standing to challenge all eight concepts on
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both First Amendment and Fourteenth Amendment grounds. The Novoa Plaintiffs
have standing to challenge the first, second, third, fifth, and seventh concepts on the
same grounds.
VI
This Court next considers whether Plaintiffs must secure a bond in furtherance
of the preliminary injunction. Rule 65(c) provides that a “court may issue a
preliminary injunction . . . only if the movant gives security in an amount that the
court considers proper to pay the costs and damages sustained by any party found to
have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). But “it is wellestablished that ‘the amount of security required by the rule is a matter within the
discretion of the trial court . . . [, and] the court may elect to require no security at
all.’ ” BellSouth Telecomms., Inc. v. MCImetro Access Transmission Servs., 425 F.
3d 964, 971 (11th Cir. 2005) (alteration in original) (quoting City of Atlanta v. Metro.
Atlanta Rapid Transit Auth., 636 F.2d 1084, 1094 (5th Cir. Unit B 1981)). Moreover,
“[w]aiving the bond requirement is particularly appropriate where a plaintiff alleges
the infringement of a fundamental constitutional right.” Curling v. Raffensperger,
491 F. Supp. 3d 1289, 1326 n.25 (N.D. Ga. 2020) (quoting Complete Angler, LLC
v. City of Clearwater, 607 F. Supp. 2d 1326, 1335 (M.D. Fla. 2009)). Here,
considering that the IFA’s unlawful impact on Plaintiffs’ First Amendment rights
weighs against requiring a bond, this Court waives the bond requirement.
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VII
Finally, having determined a preliminary injunction is warranted, this Court
addresses whether it will stay that injunction pending appeal. Stays pending appeal
are governed by a four-part test: “(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay will substantially
injure the other parties interested in the proceeding; and (4) where the public interest
lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see also Venues Lines Agency
v. CVG Industria Venezolana de Aluminio, C.A., 210 F.3d 1309, 1313 (11th Cir.
2000) (applying the same test). Considering that this test is so similar to that applied
when considering a preliminary injunction, courts rarely stay a preliminary
injunction pending appeal. That rings true here. Because no exceptional
circumstances justify staying this Order pending appeal, see Brenner, 999 F. Supp.
2d at 1292 (issuing a rare stay of a preliminary injunction given the public interest
in stable marriage laws across the country), this Court refuses to do so. Defendants
have every right to appeal, and this Court sees no reason to delay Defendants in
seeking an appeal by requiring them to move to stay under Rule 62.
VIII
The people of Florida have weathered many storms in recent years. But the
tensions giving rise to the Individual Freedom Act are not unlike those tensions from
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another tumultuous era, one “that roiled the country during and after the First World
War.”64 A prescient example of this fraught time comes to mind—namely, the
resignation of Columbia University Professor Charles Beard.
Given the pressing issues of the day, “we stand on the threshold of an era
which will call for all the emancipated thinking that America can command.”65 Such
was the conviction of Professor Beard, in October 1917, when he wrote those words
in his resignation letter to the President of Columbia University. At the time,
Professor Beard resigned in protest of the firing of two anti-war professors.
Notwithstanding his own view that the United States should declare war with
Germany, Professor Beard recognized that “thousands of [his] countrymen do not
share this view” and that “[t]heir opinions cannot be changed by curses or
bludgeons.” Instead, he asserted that “[a]rguments addressed to their reason and
understanding are our best hope.”
In decrying the Board of Trustees’s decision to fire his anti-war colleagues,
Professor Beard urged that “[s]uch arguments . . . must come from men whose
64
See, e.g., ADAM HOCHSCHILD, AMERICAN MIDNIGHT: THE GREAT WAR, A VIOLENT
PEACE, AND DEMOCRACY’S FORGOTTEN CRISIS (2022) (noting that the “tensions that roiled the
country during and after the First World War still linger today,” and arguing that “a vigilant respect
for civil rights and constitutional safeguards” is necessary “to save ourselves from ever slipping
back into the darkness again”).
65
Quits Columbia; Assails Trustees, N.Y. Times, Oct. 9, 1917, at 1 (quoting resignation
letter of Professor Charles A. Beard to President of Columbia University), available at
https://timesmachine.nytimes.com/timesmachine/1917/10/09/96274988.html?pageNumber=1.
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disinterestedness is above all suspicion, whose independence is beyond all doubt,
and whose devotion to the whole country, as distinguished from any single class or
group is above all question.”66 He asserted “the question of academic freedom” is
also “the question of intellectual and spiritual leadership in American democracy.” 67
Echoing this belief 35 years later, Justice Frankfurter opined that “[i]t is the special
task” of our professors—the “priests of our democracy”—“to foster those habits of
open-mindedness and critical inquiry which alone make for responsible citizens.”
Wieman, 344 at 196 (Frankfurter, J., concurring).
In this case, the State of Florida lays the cornerstone of its own Ministry of
Truth under the guise of the Individual Freedom Act, declaring which viewpoints
shall be orthodox and which shall be verboten in its university classrooms.
Borrowing from Professor Beard’s comments—which are equally applicable here—
under the State of Florida’s control, those “who love the smooth and easy will turn
to teaching,” so long as “[p]erfunctory performance of statutory duties . . . bring[s]
the paycheck.”68 But educators “of will, initiative, and inventiveness, not afraid of
66
This Court recognizes the terminations that so disturbed Professor Beard resulted from
statements the anti-war professors made outside of the classroom. Nonetheless, this example
reinforces the principle that academic freedom suffers when those who control the university seek
to impose their own orthodoxy upon those who teach.
67
Charles A. Beard, The University and Democracy, THE DIAL, April 11, 1918, at 335.
68
Id. at 336.
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falling into error in search for truth, will shun such a life of futile lubricity, as the
free woman avoids the harem.” 69
Striking at the heart of “open-mindedness and critical inquiry,” the State of
Florida has taken over the “marketplace of ideas” to suppress disfavored viewpoints
and limit where professors may shine their light on eight specific ideas. And
Defendants’ argument permits zero restraint on the State of Florida’s power to
expand its limitation on viewpoints to any idea it chooses.
One thing is crystal clear—both robust intellectual inquiry and democracy
require light to thrive. Our professors are critical to a healthy democracy,70 and the
State of Florida’s decision to choose which viewpoints are worthy of illumination
and which must remain in the shadows has implications for us all. If our “priests of
democracy” are not allowed to shed light on challenging ideas, then democracy will
die in darkness. 71 But the First Amendment does not permit the State of Florida to
muzzle its university professors, impose its own orthodoxy of viewpoints, and cast
us all into the dark.
Accordingly,
69
Id.
70
See Austin, 580 F. Supp. 3d at 1175.
71
See Paul Farhi, The Washington Post’s New Slogan Turns Out to Be an Old Saying, The
Washington Post, Feb. 24, 2017, https://www.washingtonpost.com/lifestyle/style/the-washingtonposts-new-slogan-turns-out-to-be-an-old-saying/2017/02/23/cb199cda-fa02-11e6-be051a3817ac21a5_story.html.
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IT IS ORDERED:
1. The Pernell Plaintiffs’ motion for a preliminary injunction, ECF No. 12, in
Case No.: 4:22cv304-MW/MAF, is GRANTED in part.
2. Defendants Manny Diaz, Jr.; Brian Lamb; Eric Silagy; Timothy M. Cerio;
Richard Corcoran; Aubrey Edge; Patricia Frost; Nimna Gabadage; Edward
Haddock; Ken Jones; Darlene Luccio Jordan; Alan Levine; Charles H.
Lydecker; Craig Mateer; Steven M. Scott; Deanna Michael;72 and Kent
Stermon—all in their official capacities as members of the Florida Board of
Governors of the State University System—must take no steps to enforce the
following until otherwise ordered:
a. Sections 1000.05(4)(a)–(b), Florida Statutes; and
b. the Board of Governors’s Regulation 10.005(2)–(3) and (4)(d).
3. The preliminary injunction binds the above-listed Defendants and their
officers, agents, servants, employees, and attorneys—and others in active
concert or participation with any of them—who receive actual notice of this
injunction by personal service or otherwise.
4. The motion, ECF No. 12, in Case No.: 4:22cv304-MW/MAF is otherwise
DENIED in part as to Defendants the University of Florida Board of Trustees;
72
Defendant William Self’s term as a member of the Board of Governors appears to have
expired. Pursuant to Federal Rule of Civil Procedure 25(d), Deeana Michael, in her official
capacity as a member of the Board of Governors, is substituted for Defendant William Self.
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the University of South Florida Board of Trustees; the Florida International
University Board of Trustees; the Florida A&M University Board of Trustees;
the Florida State University Board of Trustees; and the University of Central
Florida Board of Trustees.
5. The Novoa Plaintiffs’ motion for a preliminary injunction, ECF No. 19, in
Case No.: 4:22cv324-MW/MAF, is GRANTED in part.
6. Defendants Manny Diaz, Jr.; Brian Lamb; Eric Silagy; Timothy M. Cerio;
Richard Corcoran; Aubrey Edge; Patricia Frost; Nimna Gabadage; Edward
Haddock; Ken Jones; Darlene Luccio Jordan; Alan Levine; Charles H.
Lydecker; Craig Mateer; Deanna Michael; Steven M. Scott; and Kent
Stermon—all in their official capacities as members of the Florida Board of
Governors of the State University System—must take no steps to enforce the
following until otherwise ordered:
a. Sections 1000.05(4)(a)1.–3., 5., and 7., Florida Statutes, and Section
1000.05(4)(b), Florida Statutes as to those concepts;
b. the Board of Governors’s Regulation 10.005(2)–(3) and (4)(d) as to the
first, second, third, fifth, and seventh concepts listed in Regulation
10.005(1)(a)1.–3., 5., and 7.
7. Defendants Timothy L. Boaz; Sandra Callahan; Michael Carrere; N. Rogan
Donelly; Michael E. Griffin; Oscar Horton; Lauran Monbarren; Nithin
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Palyam; Shilen Patel; Fredrick Piccolo; Melissa Seixas; Jenifer Jasinski
Schneider; and William Weatherford—all in their official capacities as
members of the University of South Florida Board of Trustees—must take no
steps to comply with the following until otherwise ordered:
a. Sections 1000.05(4)(a)1.–3., 5., and 7., Florida Statutes, and Section
1000.05(4)(b), Florida Statutes as to those concepts;
b. the Board of Governors’s Regulation 10.005(2)–(3) as to the first,
second, third, fifth, and seventh concepts listed in Regulation
10.005(1)(a)1.–3., 5., and 7.
8. The preliminary injunction binds the above-listed Defendants and their
officers, agents, servants, employees, and attorneys—and others in active
concert or participation with any of them—who receive actual notice of this
injunction by personal service or otherwise.
9. The motion, ECF No. 19, in Case No.: 4:22cv324-MW/MAF, is otherwise
DENIED in part as to:
a. Defendants the Florida Board of Governors of the State University
System; the University of South Florida Board of Trustees; and Julie
Leftheris in her official capacity as the Inspector General of the Board
of Governors; and
b. The remaining Defendants’ enforcement of or compliance with:
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i. Sections 1000.05(4)(a)4., 6., and 8., Florida Statutes;
ii. the Board of Governors’s Regulation 10.005 as to the fourth,
sixth, and eighth concepts listed in Regulation 10.005(1)(a)4., 6.,
and 8.
SO ORDERED on November 17, 2022.
s/ Mark E. Walker
Chief United States District Judge
139