McGraw Hall, home of Cornell's history department
This article is the fourth part of a series covering free expression events throughout Cornell’s theme year. The prior article describing the Kops Lecture on Freedom of the Press was posted here.
On October 16, Sharon Austin, a tenured professor of political science at the University of Florida gave a talk at Cornell on “The Battle to Preserve Academic Freedom in Florida and the Nation.” The ILR School sponsored the talk as its contribution to the free expression theme year.
Austin, who specializes in African American politics, American politics, and public policy, has prepared a syllabus to teach an introductory course in anti-racism She is also currently completing a manuscript on the politics of academic freedom focusing on the events following the death of George Floyd in 2020.
The ‘banning” of critical race theory (CRT).
According to Austin, CRT emerged from the Critical Legal Studies framework that was developed during the late 1970s and early 1980s by legal scholars Derrick Bell, Kimberlé Crenshaw, and others. Prior to CRT, legal remedies were only appropriate when specific discrimination by people or institutions were proven. Instead, CRT assumes that racism is institutional/systemic and involves more than just individual bias or prejudice. Under this approach, discriminatory remedies can be imposed upon any finding of disparate treatment, without showing a causal connection.
Austin feels that CRT is well accepted and not controversial. But she reduced a broad-based movement against CRT training to just Christopher Rufo. Austin would have the audience believe that Rufo single-handedly convinced President Trump to issue Executive Order No. 13950, prohibiting training on systemic racism and sexism because they are “divisive.”
In fact, many federal employees took pride in the long-standing racial integration of the federal workforce and the commitment to merit under the Civil Service Law. The excessive number of baseless EEO complaints was sufficient justification for the Executive Order. Austin correctly noted that President Biden repealed the order as soon as he took office.
According to Austin:
Since January 2021, 44 states have introduced bills or taken other steps that would restrict teaching critical race theory or limit how teachers can discuss racism and sexism, according to an Education Week analysis. 18 states have imposed these bans and restrictions either through legislation or other avenues.
Austin also reports that by 2022, 35 percent of all K-12 students, or 17.7 million students, attended school districts that experienced some type of censorship effort. So, much of the public has adopted the concern over CRT.
In June 2021, the Florida Board of Education voted to approve a rule that prohibits K-12 schools from teaching critical race theory and the 1619 Project.
Florida Stop W.O.K.E. Act
In April 2022, Gov. DeSantis signed the “Stop W.O.K.E. Act.” Austin summarizes the law as one that “prohibits lessons or trainings that teach that individuals are inherently racist or sexist because of their race or sex, that people are privileged or oppressed due to their race or sex, and other related concepts.”
The law specifies that teachers can discuss “racial oppression, racial segregation, and racial discrimination” in an “age-appropriate” manner.
Austin together with 7 others became the named plaintiffs in Pernell v. Lamb, a lawsuit challenging the Constitutionality of this law under the First Amendment. In November 2022, a federal district court granted a preliminary injunction stopping the application of the law to higher education. The law continues to be applied to K-12 education. The case will be argued before the 11th Circuit Court of Appeals in January 2024.
Expanding the Definition of “Riot”
In 2021, Florida enacted H.B. 1 that expanded the definition of a “riot.” Austin claims that this law criminalized participation in a demonstration, if other people at the protest engaged in violence. The law made it more difficult for people arrested at a “riot” to get out of jail on bail. Austin claimed that the law “granted immunity from civil liability to people who ran over protesters if the protester participated in a ‘riot.’” However, the law is clearly intended to discourage Floridians from staging a riot as a political tactic.
The law also allows the governor to intervene if a locality tries to reduce its law enforcement budget. Many people view the law as a response to the Antifa riots occurring in the summer of 2020. Various Florida cities have filed a lawsuit challenging the constitutionality of the law.
New College of Florida
During the event, Austin offered a detailed criticism of the New College of Florida (NCF) based upon her claim that NCF is a private college being over-regulated by Gov. DeSantis and the Florida government. In fact, NCF is a state-owned public university. Although NCF was founded as a private college in 1960, that effort ran out of money and was purchased by Florida in 1975 when it became part of the University of South Florida. In 2001, the legislature made NCF a separate part of the State University System and designated NCF as the “Honors College for the State of Florida.”
DeSantis appointed trustees who are repositioning NCF to “promote a climate of free expression and tolerant civil discourse.” To do this, the trustees, including Rufo, have hired a new President, abolished DEI programs, and eliminated the Gender Studies major.
Austin also discussed S.B. 266 that made comprehensive changes to the laws governing public universities, including banning DEI from general survey courses. Gov. DeSantis signed this law in May 2023, and the State University System of Florida’s Board of Governors just adopted regulations to implement it.
Lessons Learned
In general, the free expression theme year events have brought legal experts to the forefront for a reasoned discussion of free speech issues. However, Austin chose to belittle or minimize the view opposite of her own rather than engage in a technical discussion.
A key argument raised during the question and answer period of the event was that Florida has its own rights as a government to determine what the government wants to say, and that individual state employees do not have the right to censor that governmental speech under the First Amendment. For example, if a DMV employee wants to promote driving under the influence of alcohol or drugs, when the law says otherwise, the First Amendment does not protect him when he teaches drivers ed based upon his own beliefs.
Another key concept is to what extent can speech be regulated in terms of being “age appropriate” for its audience. If a state legislature, or a State Board of Education, decides that some topics are too easy to be mishandled in grades K-5, there is no constitutional bar to such age-based distinctions.
To have credibility in making a free expression/academic freedom argument, it must have equal credibility when applied to the political left or the right. Austin defended her position by claiming its merit is self-evident. The session had very little discussion of First Amendment principles.
As Austin’s lawsuit is tied up in years of discovery, more and more states are considering taking similar steps. The entire nation is watching while this plays out in the courts.
