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  • Robert Lusk

Eleventh Circuit Clamps Down on University’s “Woke” Speech Policies


The University of Central Florida (UCF), like many state universities and public schools, promulgated policies intended to protect students from the expression of offensive ideas. UCF’s policies were challenged on the basis they violated the First Amendment, and a preliminary injunction was requested enjoining the policies enforcement. An injunction was denied by the trial court, and, on appeal, the Eleventh Circuit reversed in a published decision, Speech First, Inc. v. Cartwright, Case No. 21-12583 (April 21, 2022).


The Court’s opinion focused on two policies. The Court characterized the first as follows:


So, in sum: The discriminatory-harassment policy prohibits ‘verbal, physical, electronic, or other conduct’ based on a long list of characteristics including, among others, ‘religion [or] non-religion,’ ‘genetic information,’ and ‘political affiliation....’ The policy applies to any conduct that, for instance, ‘unreasonably ... alters’ another student’s ‘participation in a university program or activity.’ It specifies that discriminatory harassment ‘may take many forms’ – including, broadly, ‘verbal acts, name-calling, graphic or written statements ... or conduct that may be humiliating’ – and it utilizes a ‘totality of known circumstances’ approach, based on a non-exhaustive list of factors, to determine whether a speaker’s expression satisfies the ‘unreasonabl[e] ... alter[ation]’ standard. Lastly, the policy prohibits students not only from committing the specified acts, but also from ‘[c]ondoning,’ ‘encouraging,’ or even ‘failing to intervene’ to stop them.


The Court characterized the second policy as follows:


So again, to sum up: The bias-related-incidents policy creates a mechanism by which a UCF student can be anonymously accused to an act of ‘hate or bias’ – i.e., an ‘offensive’ act, even if ‘legal’ and ‘unintentional,’ that is directed toward another based on any of a number [of] characteristics that echo (but do not precisely mirror) those listed in the discriminatory-harassment policy.


The Court, after addressing standing arguments, turned to the merits and concluded “[t]he discriminatory-harassment policy is almost certainly unconstitutionally overbroad.” Referring to an interesting exchange during oral argument, the Court concluded that the following were examples of statements that might well fall within its prohibitions: abortion is immoral; the government should not be able to force religious organizations to recognize marriages with which they disagree; affirmative action is deeply unfair; a man cannot become a woman because feels like one; illegal immigration is dangerous; or, the Palestinian movement is anti-Semitic. The Court noted that whatever the merits or demerits of these statements, they constituted core political speech with respect to which First Amendment protection is at its zenith. The Court added the policy was likely an unconstitutional content and viewpoint-based restriction on free expression.


The Court emphasized its focus on the university context and discussed potential distinctions in the public schools context in a detailed footnote. The Court closed with a ringing endorsement of free expression in post-secondary education:


Nowhere is free speech more important than in our leading institutions of higher learning. Colleges and universities serve as the founts of – and the testing grounds for – new ideas. Their chief mission is to equip students to examine arguments critically and, perhaps even more importantly, to prepare young citizens to participate in the civic and political life of our democratic republic. It’s hardly surprising, then, that the Supreme Court has “long recognized that, given the important purpose of public education and the expansive freedoms of speech and though associated with the university environment, universities occupy a special niche in our constitutional tradition. [quotes and citations omitted]. Accordingly, it is imperative that colleges and universities toe the constitutional line when monitoring, supervising, and regulating student expression. Despite what we presume to be the very best of intentions, it seems to us substantially likely that [UCF] crossed that line here.


Thus, the Court vacated the trial court’s decision denying the injunction and remanded the case back to the trial court for the entry of a preliminary injunction and further proceedings.