On May 15, Gov. Ron DeSantis signed SB 266 into law on the New College campus in a ceremonial manner, celebrating his administration’s targeting of Diversity, Equity and Inclusion (DEI) programming in education throughout the state of Florida. As reported by local news outlet 96.5 WSLR, since the signing, SB 266 has been named in multiple lawsuits, one by the United Faculty of Florida (UFF), and a federal suit filed by local non-profit NCF Freedom. The lawsuit asserts that SB 266 prohibits certain classroom discussions for both educators and students, specifically “certain divisive topics, viewpoints often addressing race, gender, sex and history,” thus inhibiting First Amendment rights.
It is worth noting that the lawsuit filed by NCF Freedom features plaintiffs who are current students and faculty at New College. Recently, NCF Freedom filed a motion for a preliminary injunction, which is a form of temporary relief that, if granted, would maintain the status quo until the court has officially decided on the lawsuit. The purpose of a preliminary injunction is to prevent harm that would occur “if the status quo is not preserved during the case,” according to Bloomberg Law.
NCF Freedom’s motion for a preliminary injunction was filed in the Northern District of Florida, Tallahassee Division, with Chief U.S. District Judge Mark E. Walker presiding. On Nov. 3, Walker denied the motion for “lack of standing.” In order to understand what this means and the lawsuit’s significance in the fight for academic freedom, the Catalyst spoke with those personally involved in the suit.
“The way that the suit is structured is what we call a pre-enforcement facial challenge,” Gary S. Edinger, the prosecuting attorney, told the Catalyst over the phone. “The idea is that the professors would not have to teach a course that’s clearly in violation of the law [SB 266] solely so they can get disciplined or fired… they don’t have to wait for that adverse result… Instead, the idea is that they can challenge before the law is enforced on the theory that they would have to change their lecture style and syllabus out of fear.
“We talk about that in the First Amendment world as the ‘chilling effect,’” Edinger continued. “The idea that the mere existence of a law, whether it’s enforced or not, causes people to censor their own speech.”
The legal strategy that Edinger described is one of prevention. The injunction filing would prevent SB 266 from inflicting any harm until the court case comes to a decision. Thus, the prosecution had to prove that SB 266 was already affecting professors’ ability to teach and students’ ability to learn before there were any examples of the statute being enforced. Though Edinger and the plaintiffs viewed SB 266’s threat in a certain way, Walker apparently did not share that view.
“Reading between the lines, I don’t think he would dispute the idea that the statute violates the First Amendment in so far as it engages in viewpoint discrimination…” Edinger said. “The judge understands that standing is a legal doctrine that has to be met in a court case. We, the plaintiffs, view this statute as something that can be immediately used to discipline a professor. Judge Walker thinks that’s not the case.
“He looks at it in two ways, because the statute is kind of a hybrid, it’s two different things stuck together…” Edinger continued. “On the funding side, he sees [the statute focusing] on funding of university programs, which he would view as things like majors. He thinks that it doesn’t involve individual classroom instruction, it’s rather larger divisions of schools and universities.
“On the side dealing with the prohibition against teaching concepts in General Education classes, Judge Walker views that as basically prescribing the relationship between different government agencies,” Edinger said. “He thinks that has nothing to do with classroom instruction, and, rather, it would be directions from the Board of Governors to individual universities to tell them what kind of class they can teach at the General Education level.
“So, because the Judge found that the funding provisions don’t directly target professors and because the General Education [provision] doesn’t deal with individual classroom discussion at all, it’s just intergovernmental regulation,” Edinger said. “He argued that there’s no immediate threat to the professors, and that therefore they did not have the right to sue. That’s what ‘standing’ is about.”
The lack of standing comes from the lack of direct evidence of SB 266’s impact, again because there has not been direct enforcement of the statute thus far. No student or professor has yet been disciplined with SB 266 being cited as the cause. Edinger explained that although the preliminary injunction was denied, there is a decision yet to be made whether SB 266 is constitutional or not.
“A couple things can happen at this point… the State of Florida defendants filed a motion to dismiss the case, based on lack of standing,” Edinger said. “It’s possible the case could be dismissed… The standard of review for a motion of dismissal is different for an injunction. With an injunction, you have to come forward with facts, for a motion to dismiss, all the allegations in a plaintiff’s complaint are considered to be true. That difference in how the court approaches it could mean that we don’t get an injunction, but the case could go on and not be dismissed.”
As it stands, the constitutional validity of SB 266 is still up for debate. Though the Tallahassee district court perceives SB 266’s current impact as not directly affecting individual classroom discussion, the case’s plaintiffs disagree. The Catalyst spoke to plaintiff and Associate Professor of Sociology & Caribbean and Latin American Studies Sarah Hernandez to understand why she joined the fight and how SB 266 has affected her thus far.
“Primarily the fact that the language in the law stipulates what I would call ‘theoretical positions’ that are being noted as the running ‘acceptable’ ideology to be taught at the college level,” Hernandez said, referencing her decision to get involved with the suit. “Those theoretical positions are part of a long-standing debate within sociological inquiry. The fact that they are, in essence, taking the position that color-blind perspectives are the only way of understanding and thinking about the racial and ethnic inequalities in our society. By the time people are in college, I should be able to introduce first-year students to worldviews that have been denied through high school. This law, in essence, prohibits me from doing that in the introductory level.”
When speaking about the ways she has already felt impacted by SB 266, Hernandez pointed to a sociology course that has been taught at New College for years with no issue but is now in the midst of changes because of the new statute.
“I’m on the schedule to teach a course [titled] Sociology of Race and Ethnicity because Professor Zabriskie has been away, and we haven’t had people teaching this course recently. It’s a course that’s been taught here several times, years back, going back to 2013,” Hernandez said. “I felt that it was time to teach it again. It is designed primarily at the introductory level, and I was listing it as a course that would satisfy Chart Your Course (CYC) credits, Social Science credits… but these are General Education requirements. This course teaches the kinds of theories they’re trying to prohibit.
“A lawyer is telling me ‘why risk getting fired? Just teach it at the intermediate level,’” Hernandez continued. “So, I changed the schedule and asked if the course could no longer cover those requirements. So, students have one less option in their educational program that can fulfill their requirements.”
These divisional credit changes to Sociology of Race and Ethnicity would make it a less viable choice in the eyes of students who are looking to graduate as early as possible, something that could possibly affect the number of students who take the course. Hernandez stated that she chose to view the changes as a way of going back to the original mission of New College as an institution.
“[In the past,] we had very minimal General Education requirements,” Hernandez said. “The motivation was the desire to know and not just that they had to satisfy requirements. I anticipate that this means I will have students in my classes because they want to be there, not because they have to be.”
Despite not being directly cited as a use of enforcement, SB 266 has already necessitated changes in New College’s curriculum credits in a way that affects students’ ability to opt for certain courses due to the requirements these classes fulfill. Though the challenges against SB 266 are far from decided, it is still important to recognize the significance of this legal battle, not just for New College, but for academic discussion across the country.
“Our rights are not something that are automatically given, they are things that are gained. My commitment is to contribute to the effort to sustain freedom of speech, academic freedom and democratic practice,” Hernandez concluded.
To support the legal fight against SB 266 and bills like it and stay updated, visit the NCF Freedom official website.