State higher-education leaders and university trustees have fired back at a lawsuit that alleges a 2023 law targeting diversity, equity and inclusion issues at universities violates the First Amendment.
Professors at the University of Florida, Florida State University and Florida International University filed the lawsuit in January in federal court in Tallahassee and are seeking a preliminary injunction to block two key parts of the law.
One disputed part of the law prevents state funding for university programs that advocate for “diversity, equity and inclusion or promote or engage in political or social activism.” The other part includes a ban on general-education courses that include curriculums that teach “identity politics” or that are “based on theories that systemic racism, sexism, oppression and privilege are inherent in the institutions of the United States and were created to maintain social, political, and economic inequities.”
In a Jan. 27 legal memorandum backing their motion for a preliminary injunction, attorneys for the plaintiffs argued that with the law, the state “censors speech it disfavors by targeting diversity, equity, and inclusion; political or social activism; and discussions of race and other aspects of identity.”
“The state’s viewpoint-based restraints on speech threaten core academic and student speech, imperiling the free inquiry that characterizes higher education,” the attorneys from the American Civil Liberties Union Foundation of Florida and the Gibson, Dunn & Crutcher law firm wrote.
But lawyers for the state university system’s Board of Governors and trustees of the University of Florida, Florida State University and Florida International last week argued that the motion for a preliminary injunction should be rejected and disputed that the law (SB 266) violates speech rights.
“Senate Bill 266 reflects the state’s directives to its own public universities on how taxpayer money should be spent and how every public university should provide a general education to its students,” a response filed by the Board of Governors said. “It is a regulation only upon these universities and is enforced only against these universities. It does not govern any person employed as a professor by the universities.”
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Chief U.S. District Judge Mark Walker has scheduled a March 31 hearing on the preliminary-injunction motion.
The law was part of highly publicized efforts by Gov. Ron DeSantis, Republican lawmakers and other state officials in recent years to eliminate diversity, equity and inclusion, or DEI, programs in government.
The plaintiffs’ January legal memorandum said the law affects what general-education courses can be taught to undergraduates. As an example, it said University of Florida political-science professor Sharon Austin, one of the plaintiffs, has lost general-education status for two courses titled, “The Politics of Race” and “Black Horror and Social Justice.”
“When courses lose general education status, they are likely to have lower enrollment and risk cancellation,” the memorandum said. “Removal of these courses from the general education curriculum has caused and will continue to cause irreparable harm to these professors, their departments and their students by chilling faculty speech, threatening the financial health of professors and departments and censoring students’ educational opportunities.”
But in the responses filed last week, lawyers for the Board of Governors and the university trustees said professors can still teach the courses as electives or upper-level courses.
“Further, plaintiffs are permitted to teach their courses at their respective universities in the same manner as they have done in the past,” said the response from the university trustees, represented by the Buchanan, Ingersoll & Rooney law firm. “Plaintiffs may use the same syllabi. Plaintiffs may use the same modules. Plaintiffs have not identified a single SB 266 restriction that dictates what plaintiffs may say in the course of their classroom instruction.”
The plaintiffs’ legal memorandum also said the law’s DEI-related funding restrictions have led to professors losing money and “opportunities to engage in valuable and irreplaceable research, conduct peer review, learn about emerging trends in their fields and engage in networking opportunities with other professionals.” As an example, the memorandum said the University of Florida denied funding in 2024 for Austin to make a presentation at an academic conference.
“When the government offers generally available funds, it may not deny access to those funds based on a speaker’s viewpoint,” the plaintiffs’ attorneys wrote. “Florida has done exactly that: because Dr. Austin seeks to discuss her scholarship about legislative attacks on DEI at conferences supportive of DEI, she is denied funding she would ordinarily receive to promote her scholarship. And other professors similarly fear they will not receive funding for future research projects because of the subject-matter of their work. Though plaintiffs are public employees, the state may not deny them access to generally available funding to promote their academic research and scholarship simply because it disagrees with their views.”
But lawyers for the Board of Governors last week said the funding part of the law is “not a direct regulation on speech” and that professors can still make presentations at conferences without university funding.
“The Florida Legislature has defined the limits of the public university education to exclude the expenditure of taxpayer dollars on DEI efforts or political or social activism,” said the Board of Governors response, filed by lawyers from the Lawson Huck Gonzalez law firm. “As a result, the program of public education in this state draws the line to protect and advocate for the equality of all its constituents and to remove controversial activity from state-sponsored education. Under the overarching program of public university education, the universities must then restrict their individual programs and activities under these same limits. Because none of these limits restrict the speech rights of professors outside the context of the state-funded, university educational programs, the funding restrictions are constitutional.”
