Academic Freedom Is Winning in Court. Institutional Behavior Should Follow.

In the wake of the federal appeals court decision striking down key provisions of Florida's "Stop WOKE Act," the Alliance for Higher Education convened legal experts and higher education leaders to assess “What’s Next for the Freedom to Think and Learn.” As panelists revisited the origins and consequences of the law, a larger theme emerged: The legal tide is turning in favor of academic freedom, but the ultimate outcome will depend on whether colleges and universities allow those victories to inform institutional behavior. 

If you weren’t able to attend the webinar, you can view the recording here or read the recap provided below.

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The Eleventh Circuit Rejected Political Efforts to Control Teaching and Learning

ACLU Senior Staff Attorney and lead counsel on the case, Leah Watson, traced Florida's "Stop WOKE Act" to the post-2020 conservative backlash against racial justice initiatives, beginning with a Trump executive order and continuing through state legislation after Trump left office. Enacted in 2022, the law's eight vaguely defined "divisive concepts" restricted discussions of race and sex across K-12 schools, higher education, and workplaces. As Watson explained, Florida's law rested on an extraordinary theory of state power: that because the state pays professors' salaries, it can dictate the content of classroom instruction.

The Eleventh Circuit decisively rejected that argument, reaffirming that classroom instruction is not government speech and that the First Amendment protects universities’ and professors’ right to make teaching choices without government censorship targeting disfavored viewpoints. Colleges and universities, the court noted, should be “centers of inquiry — classrooms where students are trusted to puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth.”

The significance of the decision extends beyond Florida. It demonstrates that many of the legal theories used to justify restrictions on teaching and learning are far less persuasive in court than political rhetoric might suggest. As Watson noted near the conclusion of the webinar, "I have a lot of hope that we are winning when we are filing cases."

The Larger Problem Is Changes in Institutional Behavior Through Fear 

Yet, panelists repeatedly returned to a more troubling question: while advocates of academic freedom succeed in the legal arena, institutions are still changing policies based on fear. Dr. Emelyn A. dela Peña, for example, noted that institutional overcompliance–going further than the law required–has often caused more damage than the laws themselves. In fact, across the country, colleges and universities have scaled back programs, dissolved offices, altered communications strategies, and narrowed educational offerings in ways that frequently exceed what the law requires. 

This dynamic, which has been discussed in prior webinars, is one in which political actors change institutional behavior through fear rather than lawful policies, and it keeps institutions from restoring policies even after the policies are declared unconstitutional, like in this case. As Dr. LaPeña noted, much of the impacted infrastructure has not been rebuilt.

Legal Victories Alone Cannot Protect Academic Freedom

Panelists connected the "Stop WOKE Act" to recent federal actions, including the Department of Education's Dear Colleague Letter and other efforts designed to pressure institutions to alter their practices. Although these initiatives differ in form, they often operate through a similar mechanism: creating uncertainty, encouraging self-censorship, and prompting institutions to limit their own activities before courts have an opportunity to intervene. Florida has also passed follow-up legislation, including Senate Bill 266, restricting curricula and eliminating diversity roles.

The result is that contested policies can succeed in reshaping institutional behavior even when they fail judicial scrutiny. For these reasons, legal victories alone cannot fully protect academic freedom. Institutional leaders must also resist the impulse to interpret every political threat as a legal mandate. Dr. dela Peña urged university leaders to "Draw a clear boundary between what is an actual legal requirement and what is political noise" before taking any action, and encouraged institutions to hold onto their "anchor" — described as "the fundamental commitment to educational access, student success and the pursuit of truth and learning."

Goldie Blumenstyk, who moderated the discussion, summed up the dangers of these federal efforts saying: "Anticipatory compliance is dangerous, whereas standing up for what's right is not as dangerous." Watson agreed that fighting back has worked, but described the ongoing challenge with a relatable metaphor — "You must feel a little bit like you're playing a very high-stakes game of whack-a-mole here" — to which Watson simply replied, "Absolutely. For all of us."

Looking Ahead

Perhaps the most important lesson from the webinar was that higher education now possesses stronger legal footing for leaders to consider, but those victories matter only if institutions are willing to act on them. 

Pat Okker suggested that the field must move beyond defensive postures and reconnect academic freedom to a broader public purpose: students' freedom to learn and pursue truth. Doing so requires more than litigation. It requires institutions to stop treating contested political demands as settled law and to rebuild what was unnecessarily dismantled during periods of uncertainty. Watson reinforced the power of centering students directly, noting that "Having students advocate for themselves is extremely powerful."

The Florida ruling therefore represents both a victory and a test. Similar cases are already underway in other circuits, including a recent lawsuit the American Association of University Professors initiated against the Texas Tech University System Chancellor and Board of Regents to address restrictions on what can be taught in classrooms about sex, race, gender identity and sexual orientation. 

Blumenstyk praised organizations like the Alliance for giving institutions the resources and reassurance that "they're not alone out there." All three panelists agreed that this ruling offers a meaningful, tested foundation for defending the freedom to teach, learn and think moving forward.

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