In the good news department, I wanted to highlight a recent example of U.S. federal courts holding firm as democratic guardrails.
In my forthcoming book on free speech and democratic backsliding, I have a chapter devoted to Trump-era free expression decisions by U.S. courts, emphasizing several key categories of democracy-relevant free expression disputes that have recurred around the world. One of these categories is academic freedom.
The data in this chapter run through 2025. They are focused on federal appellate courts (the intermediate level of the federal judicial system, between U.S. District Courts and the Supreme Court), but I also note several recent district court decisions of particular significance. In the context of academic freedom, district courts have on multiple recent occasions ruled against policies enacted by the Trump administration or its subnational allies (such as Governor Ron DeSantis and Florida’s Republican legislature).
For example, in September 2025, U.S. District Judge Allison Burroughs held that the Trump administration had unconstitutionally suspended all federal research funding to Harvard University in an effort to coerce the institution into altering a wide array of campus policies regarding faculty hiring, student admissions, curricula, and campus life. That same month, U.S. District Judge William Young held that the administration had unconstitutionally directed immigration enforcement actions against university faculty and students on ideological grounds—namely their participation in, or even just written support for, campus protests against the Israeli war in Gaza. Three years earlier, U.S. District Judge Mark Walker enjoined a number of provisions of Florida’s 2022 Stop WOKE Act that prohibited public university faculty from teaching certain concepts allegedly associated with critical race theory (CRT).
In the book manuscript, I closed this section by noting that:
Moving forward, the survival of Judge Burroughs’s Harvard judgment on appeal, along with Judge Young’s holding in AAUP v. Rubio and Judge Walker’s on the Florida Stop WOKE Act, is likely to be a good test of the continuing guardrail capacity of federal courts.
In early July, the Eleventh Circuit passed the test. In other words, it reaffirmed the continuing democratic guardrail capacity of U.S. courts by affirming Judge Walker’s invalidation of key provisions of the Stop WOKE Act. (Florida’s legislature renamed the law the “Individual Freedom Act,” but everyone still uses the name by which DeSantis first introduced it.) The Eleventh Circuit had previously invalidated the law’s provisions banning mandatory workplace DEI trainings. In the holding this month, it invalidated the provisions regarding public university teaching. Both judgments were written by Trump-appointed Eleventh Circuit Judge Britt Grant.
The Stop WOKE Act prohibited Florida’s public colleges and universities from engaging in instruction “that espouses, promotes, advances, inculcates, or compels” students or employees to believe any of eight specified concepts, all reflecting alleged tenets of CRT that the Florida legislature and Governor DeSantis found objectionable. The law provides that public university faculty may “discuss” these concepts in class only if they do so “in an objective manner” and “without endorsement of the concepts.” Here are the eight concepts:
Members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex.
A person, by virtue of his or her race, color, national origin, or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
A person’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin, or sex.
Members of one race, color, national origin, or sex cannot and should not attempt to treat others without respect to race, color, national origin, or sex.
A person, by virtue of his or her race, color, national origin, or sex, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin, or sex.
A person, by virtue of his or her race, color, national origin, or sex, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
A person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin, or sex.
Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, national origin, or sex to oppress members of another race, color, national origin, or sex.
The state’s lawyers argued that because public university faculty are state employees, the state has full control over the content of their classroom speech. Judge Grant responded like this:
Florida’s salary-for-speech rule is a breathtaking assertion of power to ban unpopular ideas from public discourse in the very places the State’s own statutes recognize as centers of inquiry—classrooms where students are trusted to puzzle through ideas that are good and bad, easy and hard, ideally getting ever closer to the truth.
Florida relied on a Supreme Court decision called Garcetti v. Ceballos (2006) that expanded the category of public employee speech that is subject to legitimate state direction. (If you work in a government office, your boss can obviously direct you to write or not write a specified memo.) But that case emerged from a prosecutor’s office, not a university, and the Court expressly reserved the question of whether the same rule would apply in a university context. Here’s Judge Grant:
Blessing an extension of Garcetti here would leave no room—none at all—for the traditional value of academic freedom. True, the Supreme Court has not been precise about the boundaries of that freedom or its relationship to the First Amendment. But expanding Garcetti to cover every word of every college lecture would imperil academic freedom to a degree that is incompatible with the Supreme Court’s precedents.
On Judge Grant’s account:
Viewpoint-based restrictions designed to compel or ban a set of beliefs are dangerous in any setting, and they are especially pernicious in the classroom context. That goes double for broadly worded yet imprecise regulations like these, which are sure to leave both professors and their students guessing about what kind of speech might violate the rules.
And more:
Though the government has plenty of ways to promote its own viewpoint, puppeteering every university professor in the state is not one of them. Forcing an official government line—in a college classroom of all places—is exactly the “pall of orthodoxy” that the First Amendment will not tolerate.
And one more:
Florida seeks to strip public university professors—and by extension their students—of the ability to fully engage with ideas that are, for better or for worse, very popular in some academic circles. The State asks us to consider its rules a means of targeting discrimination. But hearing an idea you disagree with is not discrimination; it is an opportunity to come up with a better idea, or maybe even change your mind.
In short, a Trump-appointed federal judge thoroughly eviscerated the centerpiece statute of the recent wave of state-level attacks on higher education. Judge Grant’s opinion invalidating DeSantis’s Stop WOKE Act is important on multiple levels.
Most immediately, it preserves important academic freedom rights for public university faculty in Florida, particularly those who teach about race and racism.
It will hopefully help dissuade red-state legislators elsewhere from enacting new and additional “divisive concepts” laws, but we’ll have to see.
It will signal to universities and other targets of Trump administration repression that the federal courts remain a potential ally.
And it will help buttress these courts as bulwarks against further autocratization.
None of this is unique to Florida or the United States. Indeed, universities and their faculties are recurring targets of speech suppression by autocratizing regimes around the world. The Stop WOKE Act represents a U.S. version of the sort of crackdowns on independent scholars that have taken place in Brazil, Hungary, Poland, Turkey, and elsewhere. For example, the autocratic Law and Justice Party (PiS) government in Poland enacted a historical memory law that was “expressly aimed at a group of academics doing important research on the complicity of some Polish actors during the Holocaust.” In this light, DeSantis’s targeting of accurate teaching about the history of U.S. racism is best understood as the U.S. version of abusive historical memory laws. These laws seek to regulate research and teaching about the nation’s past that the current governing majority finds distasteful, and their impact falls on scholars and students.
Here, I should emphasize that the Florida statutory language leaving faculty free to discuss CRT concepts as long as they do so “in an objective manner” is a red herring. As I noted in a previous post on academic freedom and institutional neutrality, Brazilian legislators have likewise purported to prohibit teachers from indoctrinating students with regard to partisan, philosophical, or religious opinions. The Brazilian Supreme Court, in turn, has emphasized the “incompatibility between the supposed duty of neutrality laid down in the law and the constitutional principles of freedom to teach, to learn and pluralism of ideas…. Under the pretext of preventing the indoctrination of students, [the prohibitions in question] could lead to the persecution of teachers who do not share the dominant views.”
Like the Brazilian Supreme Court, U.S. courts are capable of standing up to autocratic government attacks on free speech and academic freedom, even when those attacks are couched in the language of neutrality. Whether and to what extent they will do so remains an open question.
In what feels like another era, I wrote that U.S. Supreme Court justices sometimes act on institutional commitments that divide judges from legislators rather than liberals from conservatives or Democrats from Republicans. And that a libertarian commitment to free speech has sometimes stood as such an institutional commitment, with cross-ideological judicial coalitions regularly invalidating bipartisan speech restrictions. The Court’s flag-burning cases from 1989 and 1990 are perhaps the clearest examples.
The mutually reinforcing dynamics of democratic backsliding and Republican capture of the Court have exerted substantial pressure on such institutional commitments, but the U.S. system of diffuse or decentralized judicial review exerts some counterpressure. Some democracies empower a single apex court to enforce their constitutions, but in the U.S. system, every court in the country is empowered to strike down laws that conflict with the Constitution. The Supreme Court may have gone off the rails, but so long as some Trump-appointed judges on the lower courts (not to mention their Democratic-appointed colleagues) remain willing to enforce the First Amendment against blatant infringements on free speech and academic freedom, then our democratic guardrails have not fully failed.
On the other hand, the Eleventh Circuit’s decision was issued by a 2-1 vote.
In dissent, Circuit Judge Barbara Lagoa, also appointed by Trump, observed that as a matter of First Amendment law, the concept of academic freedom didn’t even exist until the McCarthy era. As such, under her preferred originalist approach, the Constitution doesn’t protect academic freedom at all. Lagoa also emphasized that the panel was bound by a previous Eleventh Circuit decision involving a University of Alabama faculty member who repeatedly interjected his religious beliefs while teaching an exercise physiology class, in which the court rightly held that the university was free to dictate the content of its own courses.
In response, Judge Grant observed that the institutional dimension of academic freedom protects the authority of public as well as private universities to discipline faculty for using class time to discuss ideas that are not germane to the course or not professionally competent. But that authority—to the extent it is derived from the institutional autonomy component of academic freedom—belongs to the universities, not to the state legislature.
University administrations following their own procedures (which often specify the involvement of faculty themselves) to discipline individual faculty members for classroom speech that is non-germane or professionally incompetent is one thing. Wholesale imposition of orthodoxy on every classroom in a state university system, imposed by elected legislators rather than university officials, is something else.
U.S. courts remain capable of drawing such lines. When they choose not to do so, they are best understood as facilitating democratic backsliding.