Florida Man Makes a Point, or, It Happened Again
A federal judge in Florida has issued an injunction against the state's "Stop WOKE Act". Much like a recent Georgia decision↗ about abortion, His Honor had a few things to say. Jeffrey Sachs↱ offers an overview of the order↱ from the District Court at Tallahassee. Sachs, for instance, observes the phrase, "positively dystopian, but omits part of the setup. Judge Mark Walker actually opens with a quote from Orwell's 1984: "It was a bright cold day in April, and the clocks were striking thirteen", and then goes on to add, in a footnote: "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 .... Coincidentally, Governor DeSantis signed the law at issue on April 22, 2022."
For the state of Florida, things only go downhill after that. Observing the State's argument that it has "unfettered authority to muzzle its professors in the name of 'freedom'", Judge Walker recounts and explains:
And this section includes footnotes 2-4. Note two explains the connection between the Stop WOKE Act and its HB 7 title, "Individual Freedom Act". Notes three and four observe inconsistencies between the Defendants' (i.e., Florida) arguments in the case before the court and other statements in public and other litigation. Walker concludes his opening paragraph by again quoting Orwell, from The Fredom of the Press: "It should go without saying," Judge Walker explains, that "'if liberty means anything at all it means the right to tell people what they do not want to hear.'"
The next part is a review of the statute itself, and the point that the IFA prohibits "training or instruction that espouses, promotes, advances, inculcates, or compels" students or employees of the schools "to believe [eight specified concepts]", which Judge Walker enumerates. They are a supremacist's wish list, including the part about the hurt feelings of white men, per point 7.
And we ought to note, here, that suggestions and reminders about the law ostensibly applying to all ethnicities and sexes, as such, fail to observe history. The very premise of the point comes across as supremacist because this law did not need to be enshrined when schools taught—and still teach—tailored versions of history that blame Native Americans for being unsuitable as slaves, or Black people for being so terrible; that is, when it was white folks feeling good about defaming nonwhites, we did not need this kind of law. When it was men taking satisfaction in denigrating women, we did not need this kind of law. Or, perhaps, we did, and one of the things about the IFA is that Judge Walker can discern the difference. And inasmuch as American conservatives, and especially in the South, sound like shitposting internet arguments, one ought not need to be a judge to discern such differences.
It's not like we couldn't see this coming↗. The question remains: How does teaching history make white people, or men, feel badly about themselves? The fact of history once upon a time does not indict one in this later moment, but the fact of one's behavior in this later moment might. Does the history of wage discrimination make a boy feel badly about being male? Does the history of driving Black people out of an area and then building a lake on the site somehow make a white person feel badly about being white? How does that even work?
Tennessee threatened multimillion dollar fines over this kind of stuff, because what do we think happens next: If we teach the traditionalist American history that shames nonwhites, well, that, too, ought to be disqualified under the Tennessee rule, but there also remains a question of what anyone actually expects to happen next.
It's one thing if we tell the story of Abigail Adams reminding her husband to remember the ladies, and maybe we didn't teach the grim reality of how he responded. But it was never, as far as I know, actually illegal to teach that part. Still, if some white dude feels existentially diminished because John Adams was asshole, it might be worth figuring out why, because that would be dysfunctional.
And maybe we should move past page four. Page five opens by noting "a so-called 'savings clause'", which some of us might otherwise know as a severability clause, which retains the rest of a law if one component is found unconstitutional. The short form is found in the sixth footnote:
The longer form takes up a couple pages, but the next section of the order summarizes the arguments. The contrast is striking:
Take a moment. Plaintiffs cite the Supreme Court's history of shielding academic freedom; the State responds that the First Amendment does not apply. To the one, case history. To the other, an arbitrary claim.
Even at the university level. I can recall 1992, when Oregon and Colorado had ballot measures that would have constrained both law and medical schools at the public universities, but the measure didn't pass in Oregon, and I don't recall the Colorado litigation ever getting that deep before the Supreme Court struck the law.
And footnote seven goes here, and while it is not as spectacular as some others, blunt force trauma is never pretty:
And the subsequent section only continues the bludgeoning:
Walker considers that, "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 to espouse, promote, advance, inculcate, or compel students to believe or otherwise endorse the idea of affirmative action", and then observes, "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'."
His Honor is not amused. O! the humanity!
A federal judge in Florida has issued an injunction against the state's "Stop WOKE Act". Much like a recent Georgia decision↗ about abortion, His Honor had a few things to say. Jeffrey Sachs↱ offers an overview of the order↱ from the District Court at Tallahassee. Sachs, for instance, observes the phrase, "positively dystopian, but omits part of the setup. Judge Mark Walker actually opens with a quote from Orwell's 1984: "It was a bright cold day in April, and the clocks were striking thirteen", and then goes on to add, in a footnote: "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 .... Coincidentally, Governor DeSantis signed the law at issue on April 22, 2022."
For the state of Florida, things only go downhill after that. Observing the State's argument that it has "unfettered authority to muzzle its professors in the name of 'freedom'", Judge Walker recounts and explains:
To confront certain viewpoints that offend the powers that be, the State of Flordia passed the so-called "Stop W.O.K.E." Act in 2022—redubbed (in line with the State's doublespeek) 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 aregue that, under this Act, professors enjoy "academic freedom" so long as they express only those viewpoints of which the State approves. This is positively dystopian.
And this section includes footnotes 2-4. Note two explains the connection between the Stop WOKE Act and its HB 7 title, "Individual Freedom Act". Notes three and four observe inconsistencies between the Defendants' (i.e., Florida) arguments in the case before the court and other statements in public and other litigation. Walker concludes his opening paragraph by again quoting Orwell, from The Fredom of the Press: "It should go without saying," Judge Walker explains, that "'if liberty means anything at all it means the right to tell people what they do not want to hear.'"
The next part is a review of the statute itself, and the point that the IFA prohibits "training or instruction that espouses, promotes, advances, inculcates, or compels" students or employees of the schools "to believe [eight specified concepts]", which Judge Walker enumerates. They are a supremacist's wish list, including the part about the hurt feelings of white men, per point 7.
And we ought to note, here, that suggestions and reminders about the law ostensibly applying to all ethnicities and sexes, as such, fail to observe history. The very premise of the point comes across as supremacist because this law did not need to be enshrined when schools taught—and still teach—tailored versions of history that blame Native Americans for being unsuitable as slaves, or Black people for being so terrible; that is, when it was white folks feeling good about defaming nonwhites, we did not need this kind of law. When it was men taking satisfaction in denigrating women, we did not need this kind of law. Or, perhaps, we did, and one of the things about the IFA is that Judge Walker can discern the difference. And inasmuch as American conservatives, and especially in the South, sound like shitposting internet arguments, one ought not need to be a judge to discern such differences.
It's not like we couldn't see this coming↗. The question remains: How does teaching history make white people, or men, feel badly about themselves? The fact of history once upon a time does not indict one in this later moment, but the fact of one's behavior in this later moment might. Does the history of wage discrimination make a boy feel badly about being male? Does the history of driving Black people out of an area and then building a lake on the site somehow make a white person feel badly about being white? How does that even work?
Tennessee threatened multimillion dollar fines over this kind of stuff, because what do we think happens next: If we teach the traditionalist American history that shames nonwhites, well, that, too, ought to be disqualified under the Tennessee rule, but there also remains a question of what anyone actually expects to happen next.
It's one thing if we tell the story of Abigail Adams reminding her husband to remember the ladies, and maybe we didn't teach the grim reality of how he responded. But it was never, as far as I know, actually illegal to teach that part. Still, if some white dude feels existentially diminished because John Adams was asshole, it might be worth figuring out why, because that would be dysfunctional.
And maybe we should move past page four. Page five opens by noting "a so-called 'savings clause'", which some of us might otherwise know as a severability clause, which retains the rest of a law if one component is found unconstitutional. The short form is found in the sixth footnote:
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.
The longer form takes up a couple pages, but the next section of the order summarizes the arguments. The contrast is striking:
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 … (1967).
Defendants respond that the First Amendment offers no protection here.
Defendants respond that the First Amendment offers no protection here.
Take a moment. Plaintiffs cite the Supreme Court's history of shielding academic freedom; the State responds that the First Amendment does not apply. To the one, case history. To the other, an arbitrary claim.
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.
Even at the university level. I can recall 1992, when Oregon and Colorado had ballot measures that would have constrained both law and medical schools at the public universities, but the measure didn't pass in Oregon, and I don't recall the Colorado litigation ever getting that deep before the Supreme Court struck the law.
Alternatively, Defendants suggest that even if this Court is required to balance the State's interests against the professors' First Amendment rights, the 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."
And footnote seven goes here, and while it is not as spectacular as some others, blunt force trauma is never pretty:
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 … According to Defendants, the state is prohibited from compelling speech in the classroom, but it has absolute authority to limit expression.
And the subsequent section only continues the bludgeoning:
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.
Walker considers that, "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 to espouse, promote, advance, inculcate, or compel students to believe or otherwise endorse the idea of affirmative action", and then observes, "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'."
His Honor is not amused. O! the humanity!
[1/4]