Attorney and writer Wendy Kaminer, a former American Civil Liberties Union board member who has for years been a strong critic of what she sees as the progressive abandonment of free speech principles, is equally harsh about the right-wing pushback in Florida and other red states. The new Florida legislation and the earlier Stop WOKE bill, she told me by telephone, represent nothing less than “a state-imposed orthodoxy on education, and especially on higher education. It’s saying that there is no such thing as academic freedom, that professors are simply employees of the state and they have to parrot whatever the state tells them to parrot.”
But Kaminer (who is a FIRE advisory board member but stressed that she was speaking only in her capacity as an individual) also pointed to an irony that she believes a lot of progressives miss: The conservative backlash operates by using “theories that were developed on the left” and have been widely applied through college speech codes over the past thirty years or so—theories about the harms of speech that is viewed as traumatic to the listener and the right of listeners to be safe from hurtful or offensive expression.
“You see a very similar hostility to free speech coming from both the ‘woke’ and the ‘anti-woke,’” says Kaminer. However, she adds, while progressives have largely censured speech that they regard as harmful—essentially, as a form of assaultive conduct—using “cultural power” and institutional power, the right, with its current strength in state legislatures, is currently doing it “by force of law.”
This is not an absolute distinction: To some extent, laws prohibiting racial and sexual harassment under Title VII and Title IX of the Civil Rights Act bring the federal government into speech regulation that is not always limited to targeted harassment of individuals. Some scholars, mostly conservative- and libertarian-leaning, have long expressed concerns about the potential threat to free expression from “hostile environment” harassment law—a particularly salient concern in academia, where “unwelcome conduct of a sexual nature” may include constitutionally protected and educationally essential speech or content. These aren’t just paranoid fantasies: There have been actual instances of sexual harassment charges based on, for example, a professor’s classroom discussion of the issue of false accusations of sexual harassment and rape, or a student’s statement of his religious objections to same-sex relationships in a response to a professor’s mass email. One currently pending legal case in Florida concerns a “discriminatory harassment” policy at the University of Central Florida which the 11th U.S. Circuit Court of Appeals concluded was so broad and so vague that it could prohibit anti-abortion or anti-immigration advocacy.
In some ways, red-state “anti-woke” bills are broader and cruder in their attempts at speech regulation: No campus policy against “discriminatory speech” has ever tried to kill entire academic programs and majors the way HB 999 would kill critical race scholarship and gender studies. (Here, DeSantis is taking a page from Hungarian Prime Minister Viktor Orbán, the proud champion of “illiberal democracy” and the darling of American “national conservatives,” who signed a decree effectively banning gender studies programs in Hungarian universities five years ago.)
And yet at least on one point, DeSantis’s “anti-woke” effort puts him essentially on the same side as FIRE: the opposition to mandatory “diversity, equity, and inclusion” (DEI) statements required from faculty and administrators as a condition of hiring or continued employment. According to recent surveys, about a fifth of academic job postings and a fifth of tenure-track positions require DEI statements; large and/or elite institutions are especially likely to have such requirements, and many other schools are considering adding them. As FIRE points out, DEI statements are, in many cases, not simply about a commitment to treat all students fairly: They require professors to embrace a particular, ideologically driven vision of “diversity” and “equity” and accept specific assertions about the pervasiveness of racism, sexism, and other “systems of oppression” in American society. It’s not only compelled speech but viewpoint discrimination, says Steinbaugh: “If you solicit statements about diversity from faculty members, that can be used as a litmus test and it can be used as a way to screen out members who don’t necessarily toe the line on what their would-be or actual colleagues believe.”
African American Studies and Viewpoint Diversity
The controversy over the Advanced Placement (AP) curriculum in African American studies is even more complicated, since K‑12 education does not have the same constitutional speech protections as higher education: While viewpoint diversity is a central purpose of college and university education, the law recognizes that K‑12 public education has the legitimate function of inculcating values befitting responsible democratic citizenship. (Of course, just what those specific values should be in a diverse society is one of the bones of contention.)
The announcement that DeSantis’s Department of Education had rejected the draft curriculum proposed by the College Board quickly sparked accusations that Florida Republicans did not want high school students to learn about African American history, racism, and other uncomfortable subjects. MSNBC columnist Dean Obeidallah, for example, wrote that the rejection of the AP course had nothing to do with the curriculum contents and everything to do with the fact that DeSantis was pandering to “Republican voters’ hostility to teaching Black history in school.” There is evidence for this claim: According to a 2018 Economist/YouGov poll, 37 percent of Republicans—including 43 percent of 2016 Trump voters—thought there was “too much” black history being taught in schools. (Among Democrats, two-thirds thought it wasn’t being taught enough.)
DeSantis defenders have noted that Florida already has a high school black history requirement. However, that doesn’t preclude the possibility that, as Obeidallah asserted, the DeSantis administration decided to publicly target “wokeness” in the AP African American studies course to pander to those voters who think there’s just too much black history being taught and too much focus on racism.
When, a few weeks after the controversy broke, the College Board issued a revised curriculum for the AP course that removed from the mandatory category material on the Black Lives Matter movement, on “Black Queer Studies,” and on the work of radical black scholars such as Angela Davis and Kimberlé Crenshaw, critics cried foul, seeing the change as a concession to pressure. (If so, the pressure was brought to bear over a longer timeline: Subsequently released correspondence showed that Florida education officials had been discussing the content of the curriculum with the College Board since January 2022, and had first flagged some of the course’s units as running afoul of Florida law last July.)
But was the state’s initial rejection of those parts of the curriculum wrong? New York Times columnist John McWhorter, a Columbia University linguistics professor and a self-described liberal Democrat critical of orthodox anti-racism, has argued that in this case DeSantis was probably right, even if only incidentally: