Thread by @twoodiac

@tribelaw Massive student and faculty non-operation will sink the survey. A 1A case defending a state institution would be very strong, but *individuals* cannot be forced to disclose their voting behavior and political views. DeSantis hasn't thought this through and will regret it.

@tribelaw Does the U.S. Census ask individuals to disclose their political party affiliation or their political views?

No.

Would it be unconstitutional for the U.S. Census to include such questions?

Yes.

@tribelaw Public opinion surveys (e.g. by Gallup, Fox News) ask such questions. (Responses are voluntary.)

Could a state government or a public university do so constitutionally?

Of course not--especially (but not only) if such disclosure is made a condition for receiving state benefits.

@tribelaw The right of political privacy, which includes secret ballots in elections, is a fundamental right enshrined in all state laws, including Florida's. This law is inconsistent with that right. What are DeSantis and the Florida GOP thinking? They really have lost their minds.

@tribelaw There is another constitutional infirmity involved here as well.

Courts will consider whether the state could achieve the same purpose by other means that are not constitutionally trammeled. In this case, there clearly would be an alternative means. 1/20

@tribelaw To the extent that the law has popular support at all, this is a GOP agenda. But the GOP doesn’t need state-collected data about the political complexion of its colleges and universities. 2/20

@tribelaw All the GOP would have to do is pay for surveys by private entities using private funds.

This would be cheap, and the resulting survey or surveys would have much higher validity than the kind of survey this particular law has in mind. 3/20

@tribelaw (Any survey that is conducted by the state or under order by the state will be invalidated by the legitimate massive resistance it would face on the part of the colleges and universities and their staff, faculty, and students.) 4/20

@tribelaw As reported by The Chronicle of Higher Education over the years, a number of surveys of this sort have already been conducted.

The evidence already exists from these surveys that the faculties of higher ed institutions are disproportionately liberal and Democratic. 5/20

@tribelaw So if DeSantis and the GOP-controlled FL legislature want to defund its higher ed system for political reasons, they already have reason to do so.

(It should be noted, though, that Florida is already doing an outstanding job of underfunding its colleges and universities.) 6/20

@tribelaw But a private survey wouldn’t serve GOP purposes. In this case, the GOP is not interested in further underfunding of its public colleges and universities. It is after something else. 7/20

@tribelaw What it has virtually said out loud is that it wants data that would enable it to apply financial pressure to create more “political and ideological diversity” in its colleges and universities. 8/20

@tribelaw To do this, data of an *official* kind is needed: something like the official racial and gender data that is collected for anti-discrimination and affirmative action purposes--only here the target would be political affiliation and activity. 9/20

@tribelaw But the law is clear that no government in the U.S., either state or federal, can discriminate against anyone in its operations on the basis of political affiliation or activity. (In most states, private employers may do so, but the federal and state governments cannot.) 10/20

@tribelaw What DeSantis and the Florida GOP are contemplating is just this: a kind of affirmative action program for conservatives, America Firsters, and Republicans in the state’s system of higher education.

But the law is clear that this would be unconstitutional. 11/20

@tribelaw On its face, the survey of faculty and student opinion that this law mandates would be unconstitutional.

Beyond this, it is made doubly and triply infirm because of the way the data is intended to be used. 12/20

@tribelaw Data collection by a state government or entity that violates the basic right of political privacy would be bad enough.

A public data collection survey designed to justify defunding a state operation for political reasons would be even worse. 13/20

@tribelaw Data collection by the state designed to enable what in effect would be an affirmative action program directed at political affiliation and activity would be even worse than *that*.

@tribelaw Not to worry, though: this law’s chances, either of prevailing in the courts or being successfully conducted, are effectively zero. 15/20

@tribelaw PS/1 Obviously, the voters of FL could reduce funding or even fully defund its colleges and universities b/c of what they perceive as its leftist politics. They have the constitutional right as voters to do that. They wouldn’t even need any survey data to justify doing so. 16/20

@tribelaw PS/2 But that doesn’t mean that any means voters (via a referendum or the state legislature) employed when doing that would be constitutional. For one thing, mandating members of its public universities to comply with this law’s survey would be unconstitutional. 17/20

@tribelaw PS/3 Neither the federal government nor the state of FL can compel a FL voter to disclose how he or she has voted. (It’s called the secret ballot.) That is true even if that information is meant to be anonymous. 18/20

@tribelaw PS/4 No member of its colleges and universities could be forced to disclose voting behavior, political affiliation, or political activity, for the same reason. 19/20

@tribelaw PS5/ I can’t imagine what the FL GOP is thinking. I doubt that this law will even reach the litigation stage. Even if it did, I can foresee even this SCOTUS striking it down 9-0. 20/20

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