Why this is important: Florida Senate Bill 266 (“Bill 266”), which was signed into law in May, requires Florida’s higher education institutions to make significant changes to their curriculum and operations. Specifically, the bill prohibits any public college or university from spending funds on activities or programs that “promote or engage in political or social activism” as defined by the State Board of Education. The bill also restricts what instructors can say or teach in the classroom by prohibiting curriculum that teaches “identity politics or is based on theories that systemic racism, sexism, oppression and privilege are inherent in the institutions of the United States.” Perhaps at odds with this prohibition, Bill 266 also seeks to protect “viewpoint diversity” on college campuses by providing training related to civic education, open inquiry, and civil discourse.
Due to the broad manner in which Bill 266 was drafted, there may be vast differences in the way that educators and enforcers interpret the bill. Bill 266 empowers the Florida public university system Board of Governors (the “Board”) to enforce the law by ensuring curriculum “is aligned with the mission of the state.” In particular, the Board will review and note any curriculum that violates the bill or is “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.”
Before Bill 266, Florida’s Individual Freedom Act, commonly referred to as the “Stop Woke Act,” was initially aimed at limiting speech about identity politics and diversity, equity, and inclusion initiatives in K-12 schools, higher education, and the workplace. This bill was later narrowed to apply only to K-12 schools. In turn, Bill 266 attempts to accomplish what the Stop Woke Act could not by reaching higher education. As a result, Bill 266 will likely be enforced in a manner similar to the Stop Woke Act – by withholding funds and making budget cuts at institutions that fail to comply.
If enforced as written, the implications of Bill 266 would include restrictions on diversity, equity, and inclusion initiatives and training for faculty, staff, and students; the elimination of courses like race and gender studies; and possibly even the omission of certain portions of American history, among others, when educating students. For example, whether a United States history course could teach about segregation under Jim Crow laws, the Trail of Tears, or suffragists’ fight for the Nineteenth Amendment without violating Bill 266 and risking the loss of institutional funding is uncertain given the prohibition against any curriculum suggesting “systemic racism, sexism, oppression and privilege are inherent in the institutions of the United States.”
The constitutionality of the Stop Woke Act is an issue currently pending before the 11th Circuit Court of Appeals. Bill 266 will likely face similar challenges. Ultimately, with more than 60 years of case law (dating back to the Red Scare) supporting the position that academic freedom in college classrooms is protected by the First Amendment, the Supreme Court has made it clear that higher education classrooms are allowed to discuss and debate ideas. It is unlikely that Bill 266 could withstand such scrutiny.
In the meantime, other states’ legislators are writing similar bills and using Bill 266 as a test case for determining whether they too can regulate what college students learn and how colleges and universities provide that education. --- Arianna P. Webb, 2023 Summer Associate
