Pernell v. Fla. Bd. of Governors of State Univ. Sys.

641 F.Supp.3d 1218

LeRoy PERNELL, et al., Plaintiffs, v. FLORIDA BOARD OF GOVERNORS OF the STATE UNIVERSITY SYSTEM, et al., Defendants. and Adriana Novoa, et al., Plaintiffs, v. Manny Diaz, Jr., et al., Defendants.

Case No.: 4:22cv304-MW/MAF

Case No.: 4:22cv324-MW/MAF

United States District Court, N.D. Florida, Tallahassee Division

Signed November 17, 2022

Charles David Tobin, Ballard Spahr LLP, Washington, DC, Santino Coleman, NAACP Legal Defense & Education Fund, Washington, DC, Alexsis Marie Johnson, Jin Hee Lee, Morenike Fajana, NAACP Legal Defense & Education Fund, New York, NY, Emerson James Sykes, Laura Beth Moraff, Leah Monique Watson, Sarah Ann Hinger, ACLU Foundation, New York, NY, Daniel Boaz Tilley, ACLU Foundation of Florida Inc., Miami, FL, Jacqueline Nicole Azis, Katherine Blankenship, American Civil Liberties Union of Florida, Miami, FL, Isabella Salomao Nascimento, Ballard Spahr LLP, Minneapolis, MN, Isiuwa Jacqueline Mabatah, Ballard Spahr LLP, Salt Lake City, UT, Jason Allen Leckerman, Ballard Spahr LLP, Philadelphia, PA, Jerry Crawford Edwards, ACLU Foundation of Florida Inc., Orlando, FL, for Plaintiffs Leroy Pernell, Dana Thompson Dorsey, Sharon Wright Austin, Shelley Park, Jennifer Sandoval, Russell Almond, Marvin Dunn, Johana Dauphin.

Adam B. Steinbaugh, Greg Harold Greubel, Foundation for Individual Rights and Expression, Philadelphia, PA, Joshua Tyler Morris, Foundation for Individual Rights and Expression, Washington, DC, Gary Scott Edinger, Gary S. Edinger & Associates PA, Gainesville, FL, for Plaintiffs Adriana Novoa, Samuel Rechek, First Amendment Forum at University of South Florida.

Charles Justin Cooper, John D. Ohlendorf, John D. Ramer, Megan Marie Wold, Cooper & Kirk PLLC, Washington, DC, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR PRELIMINARY INJUNCTION

Mark E. Walker, Chief United States District Judge

"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 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." Act² 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 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.

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).

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—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 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), 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...