Beyond the Classroom: The Future of Academic Freedom in Florida

PBI Signatory Showcase Interview with Ballard Spahr

Background, facts and current decision of the Pernell v. Lamb court case

Jacqueline: On April 22, 2022, Governor Ron DeSantis signed the Stop Wrongs to Our Kids and Employees Act (the “Stop W.O.K.E. Act”), also known as the “Individual Freedom Act.”  The Act is a classroom censorship law that prohibits Florida’s public schools from “subject[ing] any student or employee to training or instruction that espouses, promotes, advances, inculcates, or compels such [individual] to believe” any of the eight prohibited concepts that have origins in critical race theory.  In other words, it severely restricts education and discussion around issues related to race and gender, including in higher education settings.

In August, 2022, with our co-counsel the ACLU, ACLU of Florida, and the NAACP Legal Defense Fund, we brought a lawsuit in federal district court in Florida on behalf of seven educators and one student from public universities in Florida challenging the Act as violative of the First and Fourteenth Amendments.  Specifically, the lawsuit alleges the Act imposes viewpoint restrictions in violation of the First Amendment, is unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment, and was enacted with a racially discriminatory purpose in violation of the Equal Protection Clause of the Fourteenth Amendment.

Our complaint asks the court to declare the law unconstitutional.  We also moved for a preliminary injunction.  On November 17, 2022, the district court granted the preliminary injunction, barring enforcement of the Act in institutions of higher education in Florida.  In an important victory for educators and students in Florida, on March 16, 2023, the Eleventh Circuit Court of Appeals entered an Order maintaining the preliminary injunction entered by the district court pending a decision on the merits of the State’s appeal of the preliminary injunction order.   In June 2024, the Eleventh Circuit held oral argument on the State’s appeal.  The appeal remains pending.

What type of pro bono legal services did Ballard Spahr attorneys provide in this case?

Jason: More than four years ago, our firm launched the Racial Justice and Equality Initiative to ensure robust and continuous commitment to litigating matters focused on racial justice.  Our work in this matter continues that commitment.   The services we have provided to our clients have run the gamut of litigating a high-profile case against a well-funded adversary.  We worked with our co-counsel to investigate and litigate all aspects of the case in federal district court and also on appeal.  Through the leadership of the chair of our firm’s litigation department, we have leveraged our firm’s resources and extensive litigation experience.  For example, our ediscovery team has managed the collection and review of all of the documents in the matter.  Another example is that, given the First Amendment aspects of the case, we have made certain to staff the matter with members of our highly respected media practice.

What were the main challenges while working on this pro bono case, and how were these challenges addressed?

Jason: High-profile litigations like this have numerous challenges.  Keys to our team’s ability to overcome those challenges include a clear legal strategy, alignment among the team, and committed resources.  Sometimes even the most thought out strategies face difficult obstacles to overcome.

Jacqueline: One of the main challenges of working on this case is the evolving law in the Eleventh Circuit Court of Appeals concerning the scope of the legislative privilege doctrine.  We served subpoenas on non-party legislative-sponsors of the Stop Woke Act and one legislator who supported the bill during a Florida House of Representatives debate.  We sought information on creation, drafting, enactment, and implementation of the Act and assessments or predictions of the potential impact of the Act on Black students and educators.  All of which is highly relevant to our Equal Protection claim.  We fought all the way up to the Eleventh Circuit to get the requested documents, but the Circuit Court held that the legislative privilege doctrine is absolute in 42 U.S.C. § 1983, in essence holding the privilege cannot be overcome even if a claimant can demonstrate an important federal interest for the information.  This decision significantly curtailed access to information that would be highly relevant to our client’s Fourteenth Amendment claim.  Following the decision, we have altered our strategy and remain confident in our ability to prevail on our claim.

What are the broader implications of this case for academic freedom and freedom of expression in higher education across the United States?

Jacqueline: Florida is just one of nearly 20 states across the country that have passed similar laws aimed at keeping thoughtful discussions on race and gender out of the classroom.  Our case is among the first filed, so the stakes are high.  This case represents the importance of zealously protecting a safe space to advance and express ideas in general, but in particular, regarding issues related to race and gender.  Many academics see racism and sexism, and the structures built to retain and reinforce those discriminatory ideals, as part of our history that we cannot ignore or shy away from no matter how uncomfortable it makes us.  Racism and sexism still persist to this day and will only move towards eradicating those “isms” the more we openly discuss subjects such as institutionalized racism and sexism.  Protecting the ability of professors discuss and teach these topics simply recognizes that our universities are unique incubators where future leaders of society can devise methods of changing institutions to become more equitable.

What are the most rewarding aspects of working on a pro bono case such as this one?

Jacqueline: One of the most rewarding aspects of working on this case is the unique impact we have already had not only for our clients but also for citizens in the State of Florida.  When I traveled to Florida to defend one of our clients’ depositions, one of the hotel staff members inquired into what had brought me to Florida.  I told her I was part of the legal team working to overturn the Stop Woke Act.  She was aware of the case and was grateful that there was a legal team working to overturn the statute.  In this profession, you do not always feel like the work you are doing has a wide-reaching impact, but knowing public university educators can teach and students in Florida can continue to learn and hear about important and unfiltered stories about people of color and their ancestors’ past and present experiences living in this country has been incredibly rewarding.  I have learned a lot about Florida’s history while spending time with our clients that I otherwise likely never would have experienced.

We also are lucky to be working with three nonprofit legal services organizations as our co-counsel.  Each organization brings different experience and skill sets to representing our clients.  To capitalize on that, we have to engage in a lot of coordination and advance communication among the various teams and suspend any pride in ownership of ideas and arguments.  It helps that we are all working toward the same goal—throwing out an unconstitutional statute.

Is there any advice that you would give to other firms considering taking on pro bono cases?

Jason: It is important that your firm culture is aligned with putting resources toward pro bono matters like this.  You need buy in at all levels.

Jacqueline: It’s critical to have a dedicated internal team all of whom are willing to work hard and step up where and when needed.  Each member on our team brings a unique set of skills that has made a great environment for me to learn different facets of the law and ways of practicing.