Teresa R. Manning is Policy Director at the National Association of Scholars, Vice-President of the Virginia Association of Scholars, and a former law professor at Scalia Law School, George Mason University.
Last month, two conservative groups made court filings to oppose Florida’s anti-woke law: The Academic Freedom Alliance (“AFA”) joined the Foundation for Individual Rights and Expression (“FIRE”) challenging the statute’s constitutionality.
The Florida law bans promotion of divisive concepts, based on race or sex, in the educational setting. Its language is similar to President Trump’s Executive Order 13950 which applied to the federal workforce but was withdrawn when Biden took office.
Challengers claim that the Florida law chills the free speech rights of professors and therefore violates both the First Amendment and what is called “academic freedom,” a term that is variously defined but here refers to the right of professors to teach as they see fit.
The law is actually a laudable and constitutionally sound measure to rein in the political radicalism and race-baiting that are so rampant in American schools and especially in universities. Most have heard of anti-American teaching materials such as the New York Times 1619 Project, which says that America is inherently racist, or the concepts of “white privilege,” which teach that Americans of European descent (“whites”) are “oppressors,” and even “race shaming” where teachers separate students by race, calling some groups “permanent oppressors” and others “permanently oppressed,” recently exposed and denounced by Moms in Duvall County, Florida.
The legal arguments against Florida’s law are misguided and lack merit. In fact, those committed to Martin Luther King Jr.’s principle – that we be judged not by the color of our skin but by the content of our character – should be thanking Florida officials for this legislation, not suing them.
One irony here is that the law actually forbids attempts at thought control, notwithstanding press reports to the contrary. Obviously, fighting thought control is a good thing. The law therefore secures greater freedom of inquiry and expression, not less.
For example, the law’s first provision reads in relevant part:
Subjecting any individual …. to required activity that … compels such individual to believe any of the following [racist] concepts constitutes discrimination based on race ….
The law therefore forbids compelling individuals to believe or parrot something. What’s objectionable here?
The law then gives examples of bigoted, divisive concepts that cannot be imposed. The list includes: 1) that one race is superior to another; 2) that individuals of one race, by virtue of that race, suffer from “unconscious bias;” 3) that one’s moral character is determined by race; and 4) that individuals can be held responsible, or punished, for actions committed in the past by other members of their race.
