Case 4:22-cv-00324-MW-MAF Document 44 Filed 11/17/22 Page 123 of 139
1421, 1430 (11th Cir. 1998) (cleaned up). But Defendants identify no explicit scienter requirement in the statute with respect to instructors’ actions. Indeed, they rely on the notion that the terms “espouses, promotes, advances, inculcates, or compels” imply a state of mind. And even if these actions imply a state of mind necessary to violate the challenged provisions’ broad prohibitions on expressing certain viewpoints, they do nothing to clarify how a professor can continue to incorporate such discussions in their classrooms in an “objective” manner without violating the law.
Defendants’ reliance on Regulation 10.005 concerning enforcement of the IFA against individual professors is similarly misplaced. Defendants assert that the Board’s enforcement procedure helps eliminate any risk of arbitrary enforcement. ECF No. 52 at 39, in Case No.: 4:22cv304-MW/MAF. Not so.
The regulation provides that in the event “an instruction or training is [found to be] inconsistent with the university regulation [prohibiting expression of viewpoints in favor of the eight concepts],” the university “shall … take prompt action to correct the violation.” See Regulation 10.005(3)(c), available at https://www.flbog.edu/wp-content/uploads/2022/08/10.005-Prohibition-of-Discrimination-in-University-Training-or-Instruction.pdf (last visited Oct. 25, 2022). Such “prompt action” includes “mandating that the employee(s) responsible for the instruction or training modify it to be consistent with the university regulation,
123
