What are the free speech rights of public university instructors in the classroom when they disagree with the university’s curriculum? A federal court in Florida recently considered this question.
In Pernell v. Florida Board of Governors of State University System (N.D. Fla., Nov. 17, 2022) —- F.Supp.3d —-, 2022 WL 16985720, the Northern District of Florida determined Florida’s recently passed “Individual Freedom Act” (“IFA”) (referred to informally as Florida’s “Stop W.O.K.E. Act”) and implementing regulations violated the First Amendment because they constitute impermissible viewpoint discrimination and are unconstitutionally vague. The case required the district court to address the tension “between university professors’ and student’ 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 disagrees.”
In April 2022, the Florida legislature passed the IFA to amend the Florida Educational Equity Act (“FEEA”). Notably, FEEA is only applicable to public colleges and universities.
Under the IFA, academic institutions and educators were prohibited from “subjecting any student or employee to training or instruction that espouses, promotes, advances, inculcates, or compels such student or employee to believe” one of the following eight concepts:
- Members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex.
- A person, by virtue of his or her race, color, national origin, or sex is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
In August 2022, per its statutory authority under the FEEA, the Florida Board of Governors of the State University System issued implementing regulations with respect to the IFA. The implementing regulations “require[d] each university to follow certain investigatory protocols,” and granted the Board of Governors its own authority to conduct an investigation if a university “willfully and knowingly failed to correct a violation of the university regulation.”
A group of university professors and college students filed suit against the Board of Governors, challenging the IFA and the implementing regulations as an unconstitutional violation of their free speech rights under the First and Fourteenth Amendments. Specifically, the professors and students asserted the “restrictions amount to vague, viewpoint-based restrictions on protected speech that are presumptively unconstitutional and subject to strict scrutiny.” In response, the Board of Governors argued that, as public employees, the university professors are “simply the State’s mouthpieces in university classrooms” and therefore, “the State has unfettered authority to limit what professors may say in class, even at the university level.” The federal district court, however, ruled in favor of the professors and students.
Analysis of First Amendment Claims
After engaging in an overview of the First Amendment protection of free speech, the district court addressed the issue of “whether the State may permissibly enforce viewpoint-based restrictions on educators’ classroom speech,” as argued by the Board of Governors. The district court noted while public universities have the authority to determine the content of their curriculum, the Board of Governors’ argument took this notion one step further by asserting the State “has an unfettered right to prohibit professors from expressing viewpoints with which it disagrees.” The district court disagreed with the Board of Governors’ legal conclusion and noted it was reached “by cherry-picking language, devoid of context,” from prior case law.
The Board of Governors used, in part, the Supreme Court’s holding in Garcetti v. Ceballos to assert the First Amendment does not protect professors’ in-class speech. Garcetti held that a public employee speaking pursuant to their official duties is not protected by the First Amendment because the speech is attributable to the public employer, rather than to the employee. The federal district court, however, found this argument went too far and held that while precedent permits the State “to determine the content of its public school curriculum,” a State does not have “unfettered discretion in limiting a professor’s ability to express certain viewpoints about the content of the curriculum once it has been set.”
Notably, the district court drew a distinction between elementary and secondary educators, and postsecondary educators. The district court noted the Board of Governors’ reliance on two cases from other federal appellate courts applying the Garcetti holding “to in-class instruction in the elementary and high school settings” did not extend the Garcetti holding to postsecondary institutions. The district court, in quoting one of the cases, noted:
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.”
Thus, per the district court’s review of existing precedent, the First Amendment protects the in-class expression of certain viewpoints of a university or college professor, but does not extend those same protections to an elementary or high school teacher.
The students claimed the IRA violated “their First Amendment right to receive information and ideas” in-class from their professors. While the district court recognized the professors’ and students’ First Amendment claims slightly differed, the district court held the claims “are coextensive based on the context of [the] case.”
Overall, the district court found the students and professors were entitled to a preliminary injunction prohibiting enforcement of the IRA and the implementing regulations against any state university.
It is important to note, the Ninth Circuit Court of Appeals has similarly held Garcetti does not apply to speech related to scholarship or teaching in the higher education context. But if Garcetti does not apply in this context, then what does? The Ninth Circuit answered this question in the 2014 case of Demers v. Austin. In the Demers case, the Ninth Circuit held the “Pickering” test, so named for the Supreme Court case that established the doctrine, applies to a public university professor’s speech related to scholarship or teaching. Under this test, the employee’s speech is protected when it is on a matter of public concern, and when the employee's interest “in commenting upon matters of public concern” outweighs “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Because this test requires a balancing of interests, the outcome of the test in a given case is generally highly dependent on the particular circumstances of the case.
As the Pernell case was decided by a federal district court in Florida, and addressed a law that is only specific to Florida, it is not a binding precedent in California. However, the rationale behind the district court’s decision in Pernell offers valuable insight for California’s public education institutions as to the current state of educators’ First Amendment rights in the classroom. First, the holding in Pernell may provide a basis for higher education employees to challenge some restrictions or regulations of in-class speech. Second, Pernell strengthens the existing understanding that public elementary and secondary school districts have greater authority to regulate the content of teachers’ speech in the classroom setting than do public colleges and universities.