Stopping Woke Without Stop WOKE
Florida’s Loss is a Win for Legal Conservatives
Anthony Fauci was not the only early 2020s relic to reappear in the legal scene last month. Florida’s Stop WOKE Act also made an appearance via a ruling from the Eleventh Circuit against the law. The case, Pernell v. Lamb, was the latest and likely final decision in years of litigation following the law’s passage in 2022.
Immediately following the ruling, Governor Ron DeSantis called it “judicial overreach.” State education employees, hele said, have a duty to follow Florida’s educational mission. As a matter of both principles and consequences, serving that mission requires striking down the law.
First, the principle of free speech. Florida’s defense of the Stop WOKE Act first requires an assertion that the First Amendment allows governments to decide which viewpoints may be endorsed in a university classroom. The law prevents college professors from endorsing or promoting certain divisive viewpoints regarding race, sex, color, and national origin. The 2–1 Pernell majority, with Judge Britt Grant writing for the court, ruled against this view, calling the law’s prohibition a “breathtaking assertion of power.”
Florida argued that professors at state colleges are government employees because they receive their salaries from the state, meaning the state can determine what they may say, echoing the Supreme Court’s ruling in Garcetti v. Ceballos (2006). Under this theory though, any belief could be censored by the party in power. If Florida can prohibit professors from endorsing progressive views on race and sex, could California do the same to professors who criticize those views? The First Amendment protects speech regardless of whether the government finds it offensive, erroneous, or even dangerous. The dogmatic indoctrination taught in the schools may be all of that and more, but it is constitutionally protected speech. Conservatives rightly oppose ideological conformity in liberal academic environments, but the solution is not for conservatives to impose a conservative orthodoxy on higher education.
Melik Abdul of the Washington Examiner argues that, although it may appear to be a loss, the decision in Pernell was actually a legal victory for conservatives. “The ruling requires no one to teach anything,” Abdul writes. “It holds that the state cannot prohibit professors from endorsing certain ideas while permitting criticism of those same ideas. The question was never whether CRT belongs in a classroom. It was whether the government gets to decide which side of a debate may be spoken aloud.” The Eleventh Circuit’s ruling, Abdul argues, trusts college students to “figure it out for themselves.”
A fault of politicians in a democratically-structured political system is their inability to think more than a few years or elections ahead. Politicians are structurally incapable of thinking past the next election cycle. Temporary officeholders will chase the applause of the current coalition, pass a law that literally has a culture war buzzword in the name, and immediately develop campaign ads with it for reelection. The fact that the same machinery can be seized by their opponents against their own side is someone else’s problem. That high time-preference is exactly why Stop WOKE was always going to fail.
Practically, the law undermined its own goal. Woke ideology has not disappeared from Florida’s state universities. Recently, a literature professor at South Florida State College, Vinita Prabhakar, was caught teaching a short story that the college president, Fred Hawkins, found too graphic and “political.” Prabhakar’s pedagogical decision to use the controversial short story was supported by her department chair, dean, and vice president. But whether the professor ultimately prevails is beside the point. Clearly, woke is alive and well in Florida’s schools.
President Trump’s executive order banning DEI in higher education reinforces the uphill battle top-down speech restrictions face. Higher education has outright refused to comply with the order, with many universities simply rebranding their DEI departments and continuing their discriminatory admissions policies. While Trump’s order rests on firmer constitutional ground than Florida’s law, it demonstrates the same phenomenon: Forcing higher education to change their viewpoint amounts to little more than a pipe dream.
Many conservatives will throw up their hands at this point and demand to know how we can ever kill off the villainous figure of wokeness. The answer is simple. Let it commit suicide.
Wokeness did not take over American culture and education through open argument. It completely relied on a pervasive cancel culture and raw government force. From the early resistance to Trump through mass hysteria during COVID-19, online mobocracy replaced the so-called marketplace of ideas. At the same time, the state worked in the background to pressure social media companies into dystopian levels of censorship. The Biden administration even made DEI loyalty oaths a prerequisite for federal funding. Woke’s “victory” was imposed by the instruments of social terror and administrative power.
Those instruments are now failing, and the ideology is collapsing with them. After the Twitter Files, Musk’s takeover, and the end of government pressure, woke is dying, if not already dead. Without the constant threat of professional death and the steady flow of coerced compliance from above, the dogma has nothing left to sustain it. It is dying the way every artificially propped-up orthodoxy dies: from simple exposure to the daylight. Bringing back government pressure, even in the opposite direction, fails the test of common sense.
If Florida’s ultimate aim was to eradicate woke ideology from the state’s higher education system, the state should have left the universities to their own devices.
Despite the political blowback, Pernell is a victory for legal conservatives. Democratic solutions, regardless of their long-term utility, are the only effective means of winning cultural or academic debates. The logic employed by the Eleventh Circuit in Pernell reaffirmed a principle that predates the culture wars: the government cannot play favorites by determining which viewpoints may be expressed. A state that can silence progressive viewpoints today can prohibit conservative viewpoints tomorrow. Woke does not need state power to kill it. It will die on its own.
David Lindeman is a Political Science and Pre-Law student at BYU-Idaho with an interest in constitutional law and American political thought. He previously interned with the House Judiciary Committee on Capitol Hill. His research interests include civil liberties, civil rights, religious liberty, free speech, separation of powers, and federalism.
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