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Florida accused of violating judge's order in 'Stop WOKE' Act lawsuit

DeSantis-Critical Race Theory - 12132021.png
screenshot from The Florida Channel
Gov. Ron DeSantis announced plans to ban the teaching of Critical Race Theory in Florida public schools, which has been prohibited by a Board of Education rule since June. No Florida public schools teacher the theory.

Plaintiffs challenging a state law restricting how race-related concepts can be taught in higher education accused Gov. Ron DeSantis’ administration Wednesday of violating a federal judge’s order that blocked parts of the law from being enforced.

Chris Spencer, one of DeSantis’ chief lieutenants, late last month directed state education leaders to require colleges and universities to “provide a comprehensive list of all staff, programs and campus activities related to diversity, equity and inclusion and critical race theory.” Florida Education Commissioner Manny Diaz, who oversees state colleges, and state university system Chancellor Ray Rodrigues are supposed to submit the responses by Friday.

Spencer’s memo pointed to the 2022 law, which DeSantis dubbed the “Stop Wrongs To Our Kids and Employees Act,” or “Stop WOKE Act.” The law lists a series of race-related concepts and says it would constitute discrimination if students are subjected to instruction that “espouses, promotes, advances, inculcates or compels” them to believe the concepts.

Professors and students from state universities challenged the law in a pair of lawsuits, arguing that it has created confusion for faculty and is an unconstitutional infringement of First Amendment rights.

Chief U.S. District Judge Mark Walker in November granted a preliminary injunction preventing the state from enforcing the law, calling it “positively dystopian.”

Plaintiffs in one of the cases asked Walker on Wednesday to “compel” the state to comply with his ruling. The motion argued that “compliance with” Spencer’s memo “would violate the preliminary injunction order.” The plaintiffs also sought “further clarifying” from Walker that the order “enjoins defendants from taking any actions pursuant to” Spencer’s memo.

DeSantis, who cruised to re-election in November and is widely viewed as a top Republican presidential candidate in 2024, made the law a priority last year and has continued to target “trendy ideology” on campuses, including during his Jan. 3 inaugural address.

Faculty members who violate the law could be fired, and a “substantiated violation” of the restrictions would make schools ineligible for what is known as performance funding.

The memo from Spencer, director of DeSantis’ Office of Policy and Budget, required colleges and universities to provide details about funding used to support programs addressing diversity, equity and inclusion and critical-race theory, a concept which maintains that racism is embedded within American institutions.

That included providing “a comprehensive list of all staff, programs and campus activities related to diversity, equity and inclusion and critical race theory.” Also, colleges and universities were required to detail “costs associated with the administration of each program or activity,” including a description of the activities, paid positions and how much of the money is provided by the state.

The motion filed Wednesday pointed to Walker’s Nov. 17 order, which prohibited the Board of Governors from enforcing the law against any university.

“The purpose behind the (Spencer) executive memorandum’s direction to collect information about instructors’ activities is clearly to enforce the unconstitutional provisions of the Stop W.O.K.E. Act,” the plaintiffs’ lawyers wrote.

The memo “only seeks information about activities related to ‘critical race theory,’ and ‘diversity, equity, and inclusion,’ viewpoints targeted by the Stop W.O.K.E. Act,” they argued.

Spencer’s memo said DeSantis’ office needed the information to craft the state budget.

“As the Executive Office of the Governor prepares policy and budget proposals ahead of the 2023 Legislative Session, it is important that we have a full understanding of the operational expenses of state institutions,” Spencer wrote in the memo.

Wednesday’s motion included an email exchange in which Sara Hinger, an American Civil Liberties Union of Florida attorney who represents the plaintiffs, raised concerns about Spencer’s memo.

“As you requested, we can confirm that our clients intend to comply with the injunction … requiring them to refrain from enforcing the enjoined provisions, so long as it remains in force,” John Ohlendorf, an attorney with the Washington, D.C.-based Cooper & Kirk, PLLC firm who represents the state, wrote to Hinger on Monday.

But Hinger pressed Ohelndorf about the memo.

“Our understanding is that actions are underway to collect information to provide to the governor’s office currently, impacting our clients and raising immediate concerns regarding compliance with the injunction,” she responded.

“We see no basis for any claim that compliance with the governor’s request to gather and provide information raises concerns regarding compliance with the injunction,” Ohlendorf wrote back. “If you disagree, please advise as to your basis for concluding otherwise.”

Hinger laid out the plaintiffs’ concerns in a message Tuesday, saying the collection of the information was an enforcement of the law.

“Given our difference of opinion and the urgency of this matter, we will file seeking the court’s assistance,” she wrote.

The plaintiffs’ motion said the threat of funding losses is creating a “chill” on campuses.

“The potential to withhold institutional funding is a principal mechanism for inducing compliance with the state’s preferred orthodoxy of viewpoints in the classroom,” the motion said. “By its express terms, the executive memorandum’s effort to collect information on instructors’ programs is undertaken pursuant to the Stop W.O.K.E. Act, which this court has already held that plaintiffs are likely to prove unconstitutionally discriminates on the basis of viewpoint, contains vague requirements, and impermissibly chills instructors’ free speech and the rights of students to receive information, thereby interfering with academic freedom.”

Compiling information about instructors’ programs “could only further the chill engendered” by the law “that the court sought to remedy” through the preliminary injunction, the plaintiffs’ lawyers argued.

The state university system, the education department and DeSantis’ office did not immediately respond to requests for comments about Wednesday’s motion.