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Federal lawsuit alleges censorship of academic freedom at New College

Written by on Thursday, August 17, 2023

Students, faculty and friends of the New College of Florida have filed suit in Tallahassee federal court, saying that Senate Bill 266 violates freedom of speech.

By Sophia Brown

Original Air Date: August 16, 2023


Official Transcript

Stan Zimmerman: New legislation concerning content at Florida public schools has elementary teachers dumping their classroom libraries on used bookstores, and faculty up in arms about restrictions on university class content. This week, students, faculty and friends of New College in Sarasota filed suit in Tallahassee federal court saying the new law violates freedom of speech. Sophia Brown has more.

Host: Senate Bill 266—signed into law on New College of Florida’s campus by Governor Ron DeSantis in May—is now the subject of a second lawsuit this month. Not only is it being challenged by the United Faculty of Florida, but on Monday, the nonprofit NCF Freedom filed its own complaint against Senate Bill 266, declaring it a violation of the First Amendment.

The lawsuit claims Senate Bill 266 prohibits educators and students from discussing “certain divisive topics, viewpoints often addressing race, gender, sex and history.” Senate Bill 266 outlaws college courses “thought to advance political or social activism and prohibits the expenditure of funds associated with any program promoting diversity, inclusion and equity.”

In the recent past, courses with titles like “Sociology of Gender and the Body,” “Topics in Feminist Philosophy,” and “Race and Ethnicity in Global Perspectives” were offered at New College in a wide array of disciplines. Now, with less than two weeks before classes start at New College, it’s still unclear whether they can still be offered.

This latest lawsuit seeks to have Senate Bill 266 declared unconstitutional. It was filed on Monday in federal court in Leon County. Three faculty and three student plaintiffs allege Senate Bill 266 directly infringes on their academic freedom and right to engage in free speech. The defendants of this case include Commissioner of the Florida Department of Education Manny Diaz, Jr., all 13 other members of the Florida Board of Governors, all 12 current New College Board of Trustees members, and New College Interim President Richard Corcoran.

The plaintiff’s attorney is Gary Edinger, a Florida First Amendment lawyer who is working on the ongoing feud between Disney and DeSantis. Last year, he worked with students and faculty at the University of South Florida to challenge the Stop WOKE Act, which was blocked from higher education by U.S. District Judge Mark Walker. Walker will also be the judge for this case.

The lawsuit claims Senate Bill 266 violates the First Amendment, is unconstitutionally vague and overbroad, and violates the Equal Protection Clause of the U.S. Constitution. Attorney Edinger broke down each of these counts for WSLR.

Gary Edinger: They have tried to control the discourse at universities by putting certain topics off limits, and not just topics, but what we call “viewpoint.” So for instance, you’re allowed to teach in a class that social activism is destructive for society. But you can’t say that social activism is useful or that it’s needed to eliminate discrimination. So the state’s put its thumb on the scale when it comes to discussion of topics that are vitally important to students, and equally important to professors who want to do a good job of instruction.

And then another strong component of the lawsuit is vagueness. All the terms in the statute that put this heavy-handed censorship on colleges, they’re all undefined. “DEI,” “social activism,” what it means to say that oppression is caused by institutions. These are key terms in the statute, all of which are undefined.

Host: Edinger also spoke on how Senate Bill 266 creates what he called a “chilling of speech.” Without strict guidelines on how terms like “diversity, equity and inclusion” are being defined, Senate Bill 266 has the potential to intimidate college professors or administrators into banning or censoring additional material.

He brings up the New College Board of Trustees’ recent vote to take the first steps towards eliminating the Gender Studies program as a “chilling” example of how this might play out at New College.

GE: What it seems to boil down to is that the state has given a great deal of leeway in deciding curriculum. So for instance, at New College, if they decide for whatever reason to eliminate Gender Studies, the state probably gets to get away with that. Where the state has less control, though, is over specific ideas. So it may eliminate Gender Studies as a program, but the state would not usually then be able to go into individual classrooms and tell professors in, say, like Sociology or History or the Arts, that feminism has no place or that Gender Studies is not appropriate to talk about.

If you have vague standards and you’re unsure whether you can teach the complete course competently because some aspects of it may be off limits, the risk is that administrators will just decide not to teach the class at all. And that’s what we call “chilling of speech.” The idea that that vagueness creates such a gray area that cautious professors and cautious administrators don’t want to get in trouble, so they eliminate even more speech than they would have to.

Host: With the complaint filed, the plaintiffs are expected to file a motion for a preliminary injunction in the next few weeks. Edinger says that the plaintiffs may have a rough few months ahead of them.

GE: It’s unconstitutional to retaliate against someone for filing a lawsuit or being outspoken in opposition to the law. But there’s no question, these plaintiffs are brave. They’re courageous people. It’s a rare student, it’s a rare professor that has the courage to stand up for their constitutional rights.

It’s not unheard of for unwise administrators to retaliate, seek a little revenge, but there are protections.

Host: But they won’t be doing it alone. NCF Freedom, the nonprofit organization that filed the lawsuit, is composed entirely of people with close ties to the college: alumni, current and former faculty and former staff.

NCF Freedom President Jono Miller is all three of these things, and has remained closely associated with New College for a half-century. He says that NCF Freedom has been gathering evidence of federal and state constitutional issues wanting legal action at New College since February.

Jono Miller: We understand that New College is changing, but we think any change needs to take place in a legal and ethical framework. And when entities at the state or local level are taking actions that will abridge the rights of our students and faculty, that NCF Freedom is going to get engaged and do what we can to challenge that using whatever legal means are available.

Host: He adds that, hopefully, this lawsuit will send a message to the state legislature that “attempting to tell people what they’re allowed to talk about is not consistent with the U.S. Constitution.” NCF Freedom is set to begin fundraising efforts for this lawsuit. To learn more, you can visit ncffreedom.org.

This has been Sophia Brown reporting for WSLR News.


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