Case 4:22-cv-00324-MW-MAF Document 44 Filed 11/17/22 Page 122 of 139
the challenged provisions any less vague. Instead, the exhibits Defendants cite for this proposition undermine their point. For example, the Valencia College guidance for faculty and deans, ECF No. 19-9, in Case No.: 4:22cv324-MW/MAF, construes the challenged language “in an objective manner without endorsement” to be consistent with the College’s existing policy on academic freedom, which requires professors to “present such matters objectively and skillfully.” Id. at 5. In offering the College’s “best understanding” of each of the concepts, the guidance recommends “including multiple perspectives on them,” in order to present those eight concepts “objectively.” Id. at 7. But as noted above, Defendants construe the challenged provisions such that even presenting multiple perspectives may still run afoul of the “objective” instruction savings clause if the instructor happens to “promote” or “endorse” one of the concepts in the process. These attempts to reconcile the challenged provisions with their own policies on academic freedom demonstrate the disconnect between this new notion of “objectivity” and the institutions’ common-sense understanding of the term.
Furthermore, Defendants assert “the scienter requirement in the Act and the Board’s Regulation 10.005 eliminates [sic] any genuine vagueness concerns.” ECF No. 52 at 39, in Case No.: 4:22cv304-MW/MAF. This Court understands that “a scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice that the conduct is proscribed.” United States v. Biro, 143 F.3d
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