Exposed: The “Chilling Effect”

Kali Jerrard

CounterCurrent: Week of 7/24/23


Legal decisions and state legislation are dominating the news this summer, and for good reason—they’re determining the future of academic freedom and freedom of speech in higher education.

Since it was signed into law last year, Florida’s House Bill 7 (the “Stop W.O.K.E. Act”) has stirred up controversy. This law has been challenged by individuals and organizations on both sides of the aisle regarding its constitutionality and its alleged free speech protections. But before we get into these questions, let’s review the Stop W.O.K.E. Act and where it stands in the courts.

Governor Ron DeSantis signed the Stop W.O.K.E. Act into law in April 2022—effectively banning the use of race-based concepts in Florida K–12 and higher education. Shortly thereafter, in August, a group of Florida postsecondary educators and students filed a lawsuit challenging the law’s constitutionality under the First and Fourteenth Amendments. They argue that this bill has a “chilling effect” on professors’ ability to discuss critical race theory and any other “divisive” topics based on race or sex. At first glance, this is a worrisome allegation—because shouldn’t free speech be protected, even controversial speech? We’ll get to that momentarily.   

Currently, this lawsuit (Pernell and Novoa v. Lamb) is with the Eleventh Circuit Court of Appeals. Last month, the Academic Freedom Alliance and the Foundation for Individual Rights and Expression, filed amicus curiae briefs on behalf of the plaintiffs. Earlier this month, they were joined by another brief courtesy of the University of California’s National Center for Free Speech and Civic Engagement. 

The National Association of Scholars (NAS) has been following this legislation and the resulting legal case closely. NAS Director of the Diversity in the Sciences Project Scott Turner, NAS Board of Directors member Bruce Gilley, and NAS Policy Director Teresa R. Manning have been covering developments related to the Stop W.O.K.E. Act over the past month (see here, here, and here, respectively). We’ve come to discover that this legislation is more nuanced than the media would like you to believe, and that it doesn’t harm academic freedom or freedom of speech. Manning writes in her article:

The law is actually a laudable and constitutionally sound measure to rein in the political radicalism and race-baiting that are so rampant in American schools and especially in universities ... One irony here is that the law actually forbids attempts at thought control, notwithstanding press reports to the contrary.

Furthermore, upon reading the actual text of the Stop W.O.K.E. Act, you discover:

[This law] may not be construed to prohibit discussion of the concepts listed herein as part of a course of training or instruction, provided such training or instruction is given in an objective manner without endorsement of the concepts.

So, the bill doesn’t actually ban speech in the classroom regarding “divisive” concepts. What it does do is require that discussion remain objective and non-partisan—which doesn't seem particularly problematic. If anything, reining in an ideology that’s forced a politicized, one-track mindset regarding race and sex is a win for freedom of speech in higher ed. Gilley and Turner rightly argue this in their articles. 

Higher education has been overtaken by a politicized orthodoxy of thought, one where “academics who wander outside the boundaries face ostracism, are denied the ability to teach, and face sanctions and dismissal.” Though it’s killing our colleges and universities, woke ideologues staunchly hold to the accepted orthodoxy and loudly proclaim anyone or anything that threatens it the “villain.” As Gilley puts it,

The academy is on guard against anyone who threatens the structures that protect its intellectual stagnancy. It uses diversity statements, job talks, racial quotas, and other forms of gatekeeping, like control of academic journals and threats to bring out student mobs, in order to police its realm.

There is a sickness plaguing free expression in higher education, but it’s not the Stop W.O.K.E. Act or related legislation. Don’t let the negative press surrounding this issue skew the truth. Take a step back, observe, read, and listen. You may be surprised at what you find.

Until next week. 


CounterCurrent is the National Association of Scholars’ weekly newsletter, written by the NAS Staff. To subscribe, update your email preferences here.

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