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Judge rejects 'intellectual freedom' case

Photo by Dom Fou on Unsplash

By Jim Saunders

News Service of Florida

April 18, 2023

TALLAHASSEE — A federal judge has tossed out a challenge to a controversial 2021 Florida law that includes requiring surveys about “intellectual freedom and viewpoint diversity” on state college and university campuses.

Chief U.S. District Judge Mark Walker issued a 22-page decision Monday that said plaintiffs, including the United Faculty of Florida union and individual professors, did not establish legal standing to challenge the law. The plaintiffs argued, in part, that the law violated First Amendment rights because it would chill speech.

Walker held a trial in January amid broader debates about attempts by Gov. Ron DeSantis and Republican lawmakers to place additional restrictions on what is taught on college and university campuses and in public schools. In his decision, Walker expressed sympathy for some of the plaintiffs’ arguments but said they did not meet legal tests to show standing.

“True, political entities have expressed clear animosity to the views plaintiffs seek to express, and the evidence presented at trial demonstrated that the surveys’ design is seriously flawed, calling into question the statistical value of their results,” Walker wrote in dismissing the case. “These factors, however, would not cause a reasonable person to infer that they should self-censor now based on how the state may use the results of the surveys in the future.”

In addition to requiring annual surveys about “intellectual freedom and viewpoint diversity,” the law also said schools may not “shield” students and faculty members from “ideas and opinions that they may find uncomfortable, unwelcome, disagreeable or offensive.”

In addition, it opened the door to lawsuits based on violations of people’s “expressive rights” at colleges and universities and allows students to record class lectures ”in connection with a complaint to the public institution of higher education where the recording was made, or as evidence in, or in preparation for, a criminal or civil proceeding.”

To establish standing, the plaintiffs would have needed to show, in part, that they had suffered an “injury-in-fact” that was “traceable” to the defendants. The lawsuit was filed against the state education commissioner, members of the state university system’s Board of Governors and the State Board of Education, which oversees state colleges.

Walker dismissed the case “without prejudice,” which means it could be revamped and filed again. But he pointed to legal precedent in saying the plaintiffs did not establish standing to challenge the surveys or the other parts of the law.

Walker wrote, for example, that the State Board of Education and the Board of Governors did not have enforcement powers over the part of the law dealing with recording class lectures.

“The boards’ general supervisory and enforcement authority is not enough to establish traceability,” he wrote. “The evidence at trial did not establish that the boards are likely to enforce the recording provision against any individuals. Nor did the evidence establish that the boards have taken any steps to regulate state colleges or universities with respect to enforcement of the recording provision.”

Walker has sometimes clashed with the DeSantis administration and the Legislature in other cases. 

While he ruled in favor of the state Monday, he also wrote that it “appears to have decided that it is good policy to deputize students and faculty to monitor their peers and inform the government of the speech and perceived political leanings of their classmates and colleagues.”

“This court is sympathetic to the argument that laws like these — which were apparently designed to chill speech and, though left intentionally toothless for enforcement purposes, remain hanging over students’ and professors’ heads like the proverbial sword of Damocles — ought to be enough to challenge their constitutionality,” he wrote. “Nonetheless, plaintiffs’ suggestion that the amorphous threat defendants play by generally enforcing state laws trickles down to cause their fears of speculative future punishment fails to establish, pursuant to binding precedent, plaintiffs’ standing to challenge Florida’s policy choices.”

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