Daniel A. Varela/Miami Herald via AP
Last April, Florida Gov. Ron DeSantis signed HB 7, dubbed the “stop woke” bill.
The new Florida anti–diversity, equity, and inclusion legislation, HB 999, seeks to leverage social conservatives’ governmental power to change state higher education in unprecedented ways. Even more ominously, however, cases before the U.S. Supreme Court on race-based affirmative action in colleges and universities have the potential to take the blueprint of the Florida bill and “Florida-ize” the nation, no matter what state legislatures say.
HB 999 expresses a social conservative vision of higher education gripped by pro-Black racial equity operatives bent on imposing diversity, equity, and inclusion (DEI) dogma on the institutions, including unsuspecting students. Social conservatives increasingly talk in ways that conjure images of highly networked and radical critical race theory players marching through higher-education institutions and controlling them, one front in a wider cultural revolution. HB 999’s defenders position it as urgently needed corrective, social conservatives standing up to win the intergenerational war of ideas and thus tomorrow’s political battles today.
HB 999’s impulses recycle periodically resurgent social conservative scripts about the left-dominated academy. Unlike in decades past, many academics today are sharply focused on racial equity, and some are also plugged into wider social movements for racial justice. But despite some notable successes that these academics and others committed to DEI have had in pushing to change the understandings and conditions of institutional and social life, they are nowhere as all-powerful, even in higher education, as dystopian social conservative visions maintain.
Another difference is the social conservative opposition. A newly energized white Christian populist-nationalist Trumpian base is being driven to fresh heights of excitement by the racialized anti-DEI sloganeering like that surrounding HB 999. A demonized DEI and critical race theory academic complex, whatever its reality, is a useful enemy target. It provides both an opening and an occasion for the long-contemplated conservative attacks on the ivory tower. As academics rightly decry HB 999 as extreme, some social conservatives embrace the extremism—while others portray it instead as reasonable, anti-“woke” reform needed to wrest higher education back and thereby secure a victory for more conservative political futures.
HB 999 spotlights DEI and critical race theory in colleges and universities. It would slash funding for DEI programs, as well as dismantle DEI efforts in higher-ed HR bureaucracies. In hiring, the bill ends candidate DEI statements, “Critical Race Theory rhetoric,” and other “political identity filters.” No more vouching for—or assessing—would-be employees’ racial justice commitments. Ditto after employment starts. Under HB 999, higher-education employees, including professors, would no longer have their employment conditioned on DEI values or DEI accomplishments. Reversing those developments is something many liberals quietly support, but HB 999, going much farther, is no simple liberal position.
While some of HB 999’s supporters insist it preserves academic free-thinking, upholding First Amendment values, in reality its terms invade the academic teaching mission to advance—and impose—social conservative ideals. HB 999 puts a bullseye on majors and minors in “Critical Race Theory, Gender Studies, or Intersectionality,” and any majors or minors “derivative” of those “belief systems.” Similarly, “[g]eneral education core courses may not . . . include a curriculum that teaches identity politics, such as Critical Race Theory[.]”
The current Supreme Court is far more likely to see HB 999’s racialized anti-DEI sentiments as innocent.
Overseeing these changes will be the boards of trustees that, in Florida as elsewhere, are regularly appointed by the governor. Smashing ideals and practices of shared university governance, HB 999 clarifies that boards rule the roost, including faculty hiring, whatever faculties think. Under this law, boards’ powers over tenured faculty are enhanced via new authorities for post-tenure surveillance. Professors, including liberals, who might buck the new institutional orthodoxies, beware.
From an egalitarian perspective, HB 999’s proud animus against anti-racist institutional practices imbues its radical institutional transformations with a suspect racial cast. In another time and place, the bill’s racial drivers might have constitutionally discredited them and the bill under Supreme Court race justice cases from a bygone era.
The current Supreme Court, by contrast, is far more likely to see HB 999’s racialized anti-DEI sentiments as innocent. They’re likely consistent with the “post-racial” legal rules—and the larger legal mood—the Court may announce in two blockbuster affirmative action rulings, due out soon.
Informed observers expect that the Court’s decisions in these cases—one involving the University of North Carolina and the other Harvard College—will outlaw any express racial considerations in higher-education admissions. Conservative positions from previous cases suggest the affirmative action rulings will almost certainly say that constitutional and federal statutory race equality rules demand higher-ed institutions operate in strictly race-neutral or color-blind terms.
Anticipating possible academic evasions, the Court could go beyond ruling that colleges and universities must be color-blind. It might additionally say even strictly color-blind programs aiming to achieve racial equity—like a demographically weighted admissions lottery—may themselves be suspect because keyed to racial purposes long regarded as problematic in the Court’s race jurisprudence.
Should the Court open the legal door to ideological means testing of racially color-blind institutional policies and practices, both in admissions and beyond them, it will start down a path that past Court decisions warned against. In a series of important rulings, the Court made it increasingly difficult for racial equity advocates to eliminate facially race-neutral laws based on the pro-white ideological motivations of their drafters or supporters, or their clearly pro-white effects on the ground. Practically speaking, those rulings kept the Court from regularly reviewing formally race-neutral policies in the name of delivering racial equity under law—a project that, recalling the country’s history of racial inequity, might have centered the Court within the nation’s ongoing political struggles about race and racial justice.
Today’s Court may skate past how the same moderating impulses recommend upholding existing protections for affirmative action in higher education. But the Court risks distinctive dangers if, entirely flouting judicial modesty, it exceeds simple commands of color blindness to announce a new jurisprudence policing for the signs of “woke,” race equity pretext.
The obvious accusations would be that the Court had joined cause with other social conservatives in a wider anti–race equity project—a political undertaking that throws aside prior precedent and constitutional guarantees to stamp out efforts to reduce race discrimination in the academy.
Will the Court care? The Court’s game-changing and rights-stripping abortion ruling in Dobbs from last year suggests it might not. Dobbs took up the social conservative mantle in the abortion wars, almost proudly indifferent to mainstream American public opinion. Nobody should be surprised if future Court decisions sharpen the color blindness rules of the anti-affirmative action decisions into weapons that target race-conscious undertakings in higher education.
Indeed, the Court’s affirmative action rulings might actually dovetail with the racialized positions that HB 999 advances, thus placing legal targets on the backs of the kinds of “woke” higher-ed programming the bill identifies. DEI and critical race theory programs, diversity statements, HR practices, and majors and minors and general education courses reflecting race-conscious, racial equity thinking could become fodder for next-generation legal challenges—and judicial rulings—eliminating them on activist, social conservative constitutional and statutory color blindness grounds.
Nor would it only be DEI and critical race theory in higher ed that might be eliminated. Some prominent social conservative thinkers have lately been insisting that higher-education DEI and critical race theory bureaucracies are but one front in larger culture wars featuring “woke” bureaucratic systems in other cultural institutions, like “woke” American corporations.
The Court’s affirmative action rulings won’t have to address race equity in corporate America directly in order to place efforts for it into doubt. If constitutional color-blind principles defined in aggressively anti-“woke” terms are the touchstones for interpreting the federal antidiscrimination law governing higher-ed affirmative action, it would be easy work for the Court down the road to say the same thing about federal antidiscrimination rules governing American corporations. Once that happens, DEI practices in big business—certainly those founded in and advancing race equity ideals—could be held to violate federal law’s relevant color blindness demands.
This isn’t to say the Court is guaranteed to move from outlawing affirmative action in higher ed on color blindness grounds to sharpening color blindness rules into anti-“woke” legal tools that might wipe out race-conscious equity positions in higher education and American business. Far from it. Any number of countervailing reasons—including old conservative commitments to judicial modesty—could halt the slide down the slope. Multiple legal stars must still align for social conservative dreams—like the dreams of unwoke heavens found in HB 999—to be realized both in national politics and the federal courts.
Still, the prospects of those alignments and so the realization of those dreams are now in sight. The Court could start “Florida-izing” the nation through rulings that treat the operations of “woke” race-conscious, race equity thinking in the institutions of American cultural life as a dragon that courts must help slay. These rulings, repeating history in their way, could in turn structure a new and formally color-blind Jim Crow system of race inequity in our own age. Higher education and progressive corporate America now find themselves on the same side of the race equity fight. Like the rest of us, their leaders must keep their eyes open to how today’s political struggles over DEI and critical race theory in Florida and elsewhere may be heading toward the nation’s courts.
