Higher education as the frontline of democracy: The case against Florida House Bill 233, the anti-shielding/intellectual viewpoint diversity/student recording legislative act

Abstract

In 2021, the Florida Legislature passed House Bill 233. The bill has three provisions: 1) it mandates an “intellectual viewpoint diversity” survey that asks students, faculty, and other employees at Florida’s public colleges and universities to report on their levels of comfort to express their ideological and political opinions; 2) it forbids instructors from “shielding” students from “access to, or observation of, ideas and opinions that they may find uncomfortable, unwelcome, disagreeable, or offensive”; 3) it deputizes students as vigilantes to record instructor lectures without the instructor’s consent “as evidence in, or in preparation for, a criminal or civil proceeding.” By narrating my involvement as a plaintiff in litigation against this bill, I discuss how the protections of intellectual inquiry are being struggled over in the context of state overreach and growing authoritarianism and how this threatens the roots of democratic culture.

Keywords:

• Higher education
• academic freedom
• critical theory
• Florida legislation

Notes

1 While carving out an exception to Florida’s privacy laws, HB 233 also allowed secret recordings for the student’s “own personal educational use.” Florida colleges and universities have long adhered to Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 (ADA) and have accessibility offices to help students get any accommodations they may need.

2 Very few such directives were issued at my university. We were told to signal to students what part of our class constituted “lecture” and when the “lecture” stopped.

3 Judge Walker was also assigned to Walt Disney Company’s litigation against the DeSantis administration for retaliation, First Amendment infractions, and contract violations. Under DeSantis’ bidding, laws were passed in the 2023 legislative session to restrict Disney’s self-governance over their theme parks in explicit response to Disney’s criticizing of the so-called “Don’t Say Gay” bill, the bill that restricted mentioning LGBTQ + issues in classrooms where it was “age inappropriate,” an indeterminate designation, and Disney sued. Disney’s comments on the “Don’t Say Gay” bill came only after the bill had passed as they had been pressured by their employees to take a position. The DeSantis administration asked that Judge Walker recuse himself from the case because of past instances where the judge referred to the actions of the governor against Disney as an example of retaliation. Judge Walker has since recused himself, citing that a third cousin has investments in Disney.

4 There is no evidence that indoctrination was taking place at any of Florida’s public colleges and universities. As political historian Allan Lichtman, witness for the Plaintiffs, testified after studying the issue, the “proponents could not cite a single complaint from any of the 40 public colleges and universities encompassing some 700,000 students, tens of thousands of faculty staff and administrators… They just related the vaguest kind of anecdotes, without even any specificity, with respect to how supposed indoctrination was taking place.” Indeed, as Claire Potter writes in The New Republic, according to empirical research conducted by Amy Binder and Jeffrey Kidder and published in The Channels of Student Activism, very few students across the country report being “indoctrinated” by their experiences in higher education: “Unsurprisingly, across political lines, students are not being indoctrinated: They make choices and… sort themselves across the different opportunities a campus offers. They have genuine interests that are supported by clubs and outside groups that offer real-world organizing experience (and résumé lines). But while these forces do not compel ideological conformity, they do play a role in ‘channeling’ a subset of students into political identities and, to all intents and purposes, shaping them into professional activists.” Potter goes on to describe how right-wing organizations are much better than liberal and leftist ones at incentivizing activism for their causes: “conservatives are much better than liberals at recruiting and training students. Conservatives have ‘managed to build an elaborate, well-funded organizational space,’ Binder and Kidder write, ‘that galvanizes young supporters and grooms future leaders by pulling them outside the confines of campus’ and into paid work that sets them up for postgraduation careers as movement conservatives.” This ability on the right is attributed to the legacy of William Buckley who, in the sixties, started an organization called Young Americans for Freedom, which became Turning Points USA and Conservative Political Action Conference, organizations that offer training as well as job and long-term career opportunities for student activists on the right and are funded by outside money: “Right-wing campus organizations do not just voice the concerns of their members. By goading progressive students, they deliberately incite conflict to create newsworthy events, stoking false narratives about liberal and left threats to free speech more generally.” Progressive and liberal organizations do not recruit student activists at the same scale.

5 This statement directly referred to a teacher who had a Black Lives Matter flag in her classroom and refused to take it down. Many believed that the bill was part of a campaign to punish the universities and the faculty in particular for Commissioner Corcoran’s unsuccessful bid to become president of Florida State University. In a letter to the hiring committee, the university’s accreditation agency (SACS) suggested that they might have to investigate whether the committee’s selection of Corcoran would be a conflict of interest, since Corcoran, as Commissioner of Education, was a member of the Board of Governors which made the decision on hiring university presidents. See, for example, Kumar, “Alarm Sounds in FSU Search.” Corcoran did not get the job and reportedly felt slighted. In the following legislative session, the Florida legislature passed SB 7044, a bill that forced universities to change accreditation agencies after every accreditation cycle. The mandate to look for new accreditation agencies will be costly to universities without having any foreseeable benefits, and many speculated that the bill was an act of retaliation. Stanley Kurtz in The National Review assessed, “Although the Corcoran case was not explicitly put forward to justify the bill’s passage, most reports on the new law portray it (accurately, I think) as a response to the Corcoran controversy.” If not revenge, it might be said that the bill’s advocates were advancing culture wars. Orlando Sentinel Editorial Board, “FSU is Off the Hook, but Florida’s Stuck with a Culture Warrior Running Education,” where the editorial board explains the contradictions between what he said in his FSU job interview – “I’ll meet with anybody” – and his speech at Hillsdale College the day before, where he boasted about firing a Duval County teacher for refusing to take down a Black Lives Matter flag in her classroom. The editorial ends by suggesting that if Corcoran wants to continue spreading his ideology and culture war, he should perhaps find work at another institution: “Should the job open up, maybe president of Hillsdale College?” Prophetic. Richard Corcoran has since become interim President of the beleaguered New College of Florida, where he has intervened in governance, avowing to change the curriculum to be more in line with Hillsdale College and firing tenured faculty who are not in line with that project.

6 See, for example, Michael Sainato’s article in The Guardian, “’It’s had a Chilling Effect’”: Florida Teachers Anxious About ‘Don’t Say Gay’ Bill.’”

7 See, for example, Bob Barrett “Changes in Tenure Coming with New Florida Law”: “DeSantis says the changes to the tenure system in Florida will prevent professors from what he calls ‘indoctrinating students’ in certain ideologies. ‘Tenure was there to protect people, so they could do ideas that maybe would cause them to lose their job or whatever and academic freedom. I don’t know that that’s really the role it plays, quite frankly, anymore’” (sic.).

8 This was originally proposed as an even more restrictive bill in HB999, which prohibited certain topics and allowed for tenure review at any time, on demand.

9 The 11^th Circuit Court of Appeals in Georgia had turned back some of Judge Walker’s decisions based on standing. “Standing” has become a conservative cause because of the lobbying efforts of Leonard Leo of the Federalist Society. Reforms on standing have allowed states to pass laws with “third party” enforcers, where the state cannot be held responsible.

10 2023’s HB 931 changed the annual date for administering the survey to the end of the calendar year rather than the end of the academic year.

11 Apparently, nothing was done with the results. The data was not analyzed, claims the Defendants’ post-trial brief, and the “raw underlying survey response data has not been shared with the Legislature or the Governor’s office… Defendants have no plans to withhold performance funding from any institution based on the survey results, nor do they have the power to do so… And Defendants have no intention of administering future surveys any differently than they did the 2022 survey.” This begs the question of the cost of creating and administering the surveys, and why spend that money if nothing is done with the data? It also ignores that, according to the way the law was written, the Defendants could require, in the future, that faculty, staff, and students participate in the survey and that the survey-takers self-identify. As administered, response rates were incredibly low and did not pass statistical muster – no conclusions could be gleaned from the data with any reliability.

12 My lay reading of this is that the judge is saying the law is unenforceable. Deciding against us “without prejudice” suggests that we could sue someone who enforces the law and would probably win such a case. Determining that the law is unenforceable, even if we do not have standing, seems to imply that we got much of what we wanted by losing the case.

13 Initially the case was represented by Perkins Coie and sponsored by the Democracy Docket Legal Fund together with the Democracy Docket Action Fund. In 2021, the Elias Law Group broke off from Perkins Coie and took over our representation and sponsorship. Elias Law Group was founded by Marc Elias, an elections lawyer for the Democratic Party who, at the time when our litigation was in federal court, was overseeing 64 cases that the Trump campaign filed to challenge the results of the 2020 elections, winning all but one. Marc Elias was also an attorney for the John Kerry campaign in 2004, the Hilary Clinton campaign in 2016, the Kamala Harris presidential campaign in 2020, and the Democratic National Committee under Biden.

14 In my understanding, there are significant differences between free speech and academic speech as well as significant overlap. For one, academic speech favors area specialization, so that I am allowed to teach about the course content while maybe being somewhat restricted otherwise. Academic speech also privileges instructors rights and authority in setting guidelines for classroom discussion.

15 Arguably, neither one supports, for example, dismantling capitalism, communism, fascism, or ending war. In terms of issues, most Americans agree on a lot that gets polarized only in reference to “liberal” or “conservative” identifications: common sense gun reform, abortion access with restrictions, etc. At the same time, many Americans believe in ideas that are unthinkable within the terms of “liberal” or “conservative,” like holidays, highways, and internet access. As well, many ideas are lumped together into these types that do not make particular sense as integrated, like pro-life and pro-gun for “conservative.”

16 “[M]eanings,” he continues, “are produced, mediated, and embodied in knowledge forms, social practices, and cultural experiences” (5).

17 As misleading as these sorts of questions are, this version of the student survey is an improvement from the prior draft. That draft had questions like “The instructor would give me a lower grade because of my views,” a question that the student would have no way of answering substantially. Instructors consider many different factors in deciding on a grade, and much of this decision is based on cranking through equations combining the outcomes of multiple assignments. Another question in the draft was: “If you were to speak up and give your views on one of these CONTROVERSIAL issues during a class discussion, how concerned would you be that the following would occur? The instructor would criticize my views as offensive” (emphasis in original). The “CONTROVERSIAL issues” were gender, race, and sexual orientation. The question assumes that what is CONTROVERSIAL in an academic field or in a classroom is the same as what is CONTROVERSIAL in the legislature, and that we would all agree as to the CONTROVERSIALITY of gender, race, and sexual orientation over, for example, how the state allocates money and how it taxes or anything else. The question also asks the student to speculate about an instructor’s reaction. Also, the draft survey forces the student to think about the whole campus as an extension of their individual experience with specific other individuals: “On my campus, how often do instructors create an environment that is hostile to certain social or political views?” Such questions preview what the bill’s sponsors hoped to achieve, as evidenced by the hostile take-over of New College of Florida, where faculty members were denied tenure for having certain social and political views to which the new managers were hostile.

18 As Butler would offer, “speech is always in some ways out of… control” (15) as “agency begins where sovereignty wanes” (16).

19 There have been a number of iterations of this – from a rejection of an Advanced Placement curriculum because it included lessons on intersectionality and queer theory to (most recently at the time of this writing) the approval of a curriculum where middle school students would be taught that “slaves developed skills which, in some instances, could be applied for their personal benefit.”

20 The companion bill to HB 999 that would allow the state to reach in and control issues of governance, tenure, and curriculum; discontinue Diversity, Equity, and Inclusion funding; order review of courses that include critical theory including Critical Race Theory, Critical Gender Theory, Radical Feminism, Cultural Marxism, and etc.

21 In fact, it is academic speech. Academic speech would mean that the norms of their areas of expertise and research create the framework for allowable speech.

Additional information

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Robin Truth Goodman

Robin Truth Goodman is a Professor of English at Florida State University, Tallahassee, Florida, USA.