This week, the 11th Circuit blocked the higher education provisions of Florida’s Stop Wrongs to Our Kids and Employees Act, the 2022 law restricting how public university professors discuss race and sex. Gov. Ron DeSantis (R-FL) has characterized the decision as requiring Florida to teach critical race theory. Read the opinion, and you will find something narrower and more important.
The ruling requires no one to teach anything. 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 government gets to decide which side of a debate may be spoken aloud.
Writing for the majority, Judge Britt Grant rejected Florida’s claim that a professor’s speech belongs to the state because the state pays the salary, calling it a “breathtaking assertion of power to ban unpopular ideas from public discourse.” The panel was careful about what it was not saying: the targeted ideas may well be noxious, or maybe not; either way, the court held, the First Amendment trusts students to figure it out for themselves.
Grant is a President Donald Trump appointee. So is Judge Barbara Lagoa, who wrote a serious dissent arguing the state need not sponsor every viewpoint. This was not activist judges versus the Right. It was conservative jurists working through a hard question about state power, and the majority landed on settled ground: As Inside Higher Ed reported, six other appellate circuits have held that the First Amendment protects faculty teaching and scholarship, and none has ruled otherwise.
I understand the frustration behind the law. I have spent years arguing that something real migrated from graduate seminars into workplaces and classrooms. Lockheed Martin confirmed to Sen. Tom Cotton (R-AR) that more than 1,000 of its leaders attended training on white male culture, including a “White Men’s Caucus.” Parents and shareholders who objected were not imagining things.
But I have also spent years pointing out that most of what fuels the CRT panic is not critical race theory. The theory I encountered in a college literary criticism class traces how race was written into American law. The 1806 Virginia case Hudgins v. Wright shows the mechanics: three generations of enslaved women won their freedom by proving Native American rather than African descent, because under colonial law, a child’s status followed the condition of the mother, and courts applied crude physical tests to sort who counted as black. That is the theory. The corporate training industry is something else wearing its name. Florida’s law was born of that confusion. Because there was no CRT curriculum to ban, the Stop WOKE Act instead banned concepts. That choice put it on a collision course with the First Amendment, and this week the collision arrived.
Here is why conservatives should read the ruling as a win.
The first book I read on my journey into conservatism was Barry Goldwater’s The Conscience of a Conservative. Goldwater warned that a state competent to do all things, limited only by the will of whoever controls it, is the first principle of totalitarianism, in direct conflict with a Constitution written above all to limit government. That warning did not come with an asterisk for ideas conservatives find objectionable. It was the whole point.
Apply it here. If a state can prohibit professors from endorsing disfavored ideas about race, what stops a different state, under different leadership, from using the same power against ours? The machinery does not care about the message. A precedent letting Tallahassee police classroom viewpoints is the same precedent letting Sacramento do so. The 11th Circuit just refused to build that machine, and the conservatives cheering hardest should be the ones who remember what the movement is for.
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We have a strong case against CRT-style pedagogy, and we can win it where we have always won: curriculum debates, trustee appointments, and the open competition of ideas. Goldwater believed a free people could sort good ideas from bad ones without the government holding their hand. So does the First Amendment.
The court did not hand conservatives a defeat. It reminded us of our own first principles. The movement I joined through the pages of that book has never needed the state to win an argument.
Melik Abdul is a D.C.-based public affairs professional and Republican strategist.