Wake Up: How Application of Garcetti to Public Educator Speech Harms Educators and Students Through the Lens of Florida's Individual Freedom Act

Authors

Lindsay McCarthy

Document Type

Note

Abstract

(Excerpt)

Nearly twenty of the nation’s states have enacted some kind of law that limits the teaching of controversial topics like race, gender, and politics. Within the last three years, these laws have become more commonplace as social movements like Black Lives Matter and #MeToo have brought topics like systemic racism and gender inequality to the nation’s attention. As the country becomes more polarized, state legislatures—typically conservative ones—have resorted to these censorship laws to fight back against the perceived indoctrination of children. The state that has gained the most notoriety for such laws is Florida. In 2022, Florida passed a wide-reaching law called the Individual Freedom Act (“IFA”), which is the self-described strongest law in the nation to fight back against “woke indoctrination.” The law prohibits teaching concepts in a variety of areas that could lead to a child feeling guilty about their race or gender and has been used as a weapon to attack anything from diversity, equity, and inclusion (“DEI”) programs to Advanced Placement (“AP”) African American history classes.

As many states pass laws that censor conversations around race and gender, cases raising constitutional concerns over the First Amendment rights of students and educators have begun to make their way through the nation’s court systems. In confronting these challenges, courts must also face a circuit split regarding what test should be used to assess educators’ free speech rights. The split centers around the application of Garcetti v. Ceballos, a 2006 Supreme Court decision that held that public employees have no free speech rights if they are speaking pursuant to their duties as an employee. It is unclear whether or not this holding applies to educators in public schools. The Supreme Court explicitly declined to take its holding that far, leaving a space for lower courts to fill. Consequently, circuits have interpreted the case differently. This Note highlights the inconsistencies among circuit courts and argues that Garcetti should not apply in academic contexts to protect educators’ academic freedom as well as students’ First Amendment right to receive information.

Part I of this Note will provide background on Florida’s Individual Freedom Act. It will include a discussion on what exactly the law prohibits, as well as a discussion of its effects on public school education in Florida. Part II of this Note will review the holding of one court that held that Garcetti does apply in academic settings. Part III will discuss the confusing jurisprudence of another circuit. Part IV will review the decisions by two circuits that have held Garcetti does not apply in academic settings. Part V of this Note will argue that applying Garcetti to academic settings will strip teachers of all their First Amendment rights as well as severely impair the First Amendment rights of students.