Professors, students ask judge to temporarily block DeSantis' DEI funding ban

On one side of U.S. District Judge Mark Walker's bowtie sat five attorneys.

They, and a few others behind them in Tallahassee's federal court on Monday, were the legal force defending Florida and its funding ban on state college and university diversity, equity and inclusion programs.

On the other side sat Gary Edinger.

He's a First Amendment lawyer from Gainesville, and his clients want to block key provisions of Gov. Ron DeSantis-supported Senate Bill 266, which went into effect in July.

Edinger argued the court should ban key portions of the law until the case is resolved. Those portions are the funding prohibition and a provision restricting what's taught in “general education core courses” in Florida.

He's representing a group of New College of Florida professors, students and a group pushing back against DeSantis' conservative takeover of the institution.

In the lawsuit, the plaintiffs allege that their First and Fourteenth Amendment rights are being violated in a variety of ways. They accuse the law of being vague and overbroad. They say it’s "content based and viewpoint based censorship of speech in violation of the First Amendment.”

The law "directly infringes upon their academic freedom as well as their right to freely engage in free speech and debate on all topics of interest and concern," the lawsuit states.

Lawyers for the state, though, argued on Monday that the defendants didn't even have standing to sue in the case. They said the whole matter was premature, as the Board of Governors hasn't created any regulations yet for the law.

The defendants have not been and won't be harmed, they say, and the enforcement of the law and penalties would be directed at the university, not students or professors.

The plaintiffs are "trying to connect the dots too far," said Bill Galvano, an attorney for New College of Florida's Board of Trustees and its new president.

New College President Richard Corcoran and the Board of Trustees are among those sued. That's along with the Florida Board of Governors and Florida Education Commissioner Manny Diaz.

What will Walker do?

Walker said he's going to try to release a decision in the next 10 days.

The judge is no stranger to DeSantis' controversial higher education policies.

Last year, he called a big provision of DeSantis' 2022 "Stop Woke Act," which limited discussion of race, gender and other topics in university classrooms, "positively dystopian." He ruled that it violated the First Amendment rights of students and faculty, and it remains blocked pending an appeals court decision.

But, on Monday, he seemed to be wrestling with the question of the plaintiff's standing to sue, asking a litany of pointed questions on the topic. So many, so quickly that the court reporter tasked with transcribing the proceedings asked him to slow down, Walker informed the courtroom with a smile after a break.

Lawsuit filed: New College professors, students file lawsuit to block DeSantis' higher education law

Senate Bill 266 signed: DeSantis signs bill banning funding for college diversity programs

What does the law do?

Those suing are New College professors Sarah Hernandez, Maribeth Clark and Kim Anderson and students Sara Engels, Carlton Leffler and Shelby Nagle. They join NCF Freedom Inc., the group pushing back against the DeSantis-driven changes to New College.

New College has been undergoing a conservative transformation since January when DeSantis appointed a new majority to its Board of Trustees tasked with shaping the small liberal arts school into the "Hillsdale College of the South." Hillsdale College is a private, conservative Christian liberal arts school in Michigan.

The governor signed the contested law, Senate Bill 266, last spring at New College, and it went into effect July 1.

DeSantis, who is now running in the Republican primary for president, said at the bill-signing ceremony that DEI really should stand for "discrimination, exclusion and indoctrination."

“This has basically been used as a veneer to impose an ideological agenda and that is wrong," he said.

The provision in the law that prohibits Florida colleges and universities from funding DEI programs has received the most attention, but the law also restricts classroom instruction.

The law directs the Board of Governors − the governing body for Florida's university system − to periodically review academic programs to ensure they align with a university's mission and issue a "directive" to universities concerning course materials that include "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."

The law also specifically prohibits "general education core courses" from containing such teachings, and adds that these courses "may not distort significant historical events or include a curriculum that teaches identity politics." And it outlaws university spending on any programs that "promote or engage in political or social activism."

The standing question

In a legal filing last week, the defendants' lawyers — seven, overall — asked the court not only to dismiss the request for a temporary block of the law but to throw out the case entirely.

"Plaintiffs cannot establish the most important jurisdictional requirement to maintain this suit: standing," they wrote. "Moreover... Plaintiffs do not state claims upon which relief can be granted."

On top of the case being premature, they write in another legal filing that the definitions in the law aren't vague as alleged.

"Finally, because these provisions are not enforced against Plaintiffs, but only against the universities, Plaintiffs need not fear enforcement at all, and they could always seek clarification from their University if they have questions about the University’s obligations under SB 266," they wrote.

Jono Miller, the president of NCF Freedom Inc., said even though regulations haven't been made, the law has had a chilling effect on college faculty.

"They have choice: they can even self-censor or they can say, 'Well, I'm close to retirement or I don't care, they can come and get me,'" Miller said. "You can be defiant, but you have to react to it.

Edinger said it didn't matter if those regulations existed yet — or if they ever exist. He said they were only the meat to the bones on an existing law, a law that he said could be used to punish professors "right now."

"The statute says what it says," he said in an interview after the hearing. "This statute is obviously unconstitutional... The idea that the state could fix one viewpoint and say, 'You're not allowed to express that,' deeply offends the First Amendment."

Edinger, though, acknowledged the standing stand-off between the parties.

"I think if the judge had his druthers, and we weren't dealing with very sophisticated standing issues, this statute is obviously unconstitutional," he said.

Contributed: USA TODAY NETWORK-Florida

This reporting content is supported by a partnership with Freedom Forum and Journalism Funding Partners. USA Today Network-Florida First Amendment reporter Douglas Soule is based in Tallahassee, Fla. He can be reached at DSoule@gannett.com. Twitter: @DouglasSoule.

This article originally appeared on Tallahassee Democrat: Will Florida judge block DeSantis anti-DEI law? The wait is on.