Florida Phoenix
Michael Moline
August 4, 2023

A union representing public university professors, its chapter at New College of Florida, and a professor denied tenure at the Sarasota campus have filed a constitutional challenge to a new state law denying the right to arbitrate employment disputes.

A 35-page complaint filed Thursday in state circuit court in Leon County by the United Faculty of Florida cites the harm to the union, the local, and their members but specifically to Hugo Viera-Vargas. He was one of five New College faculty denied tenure in April by a new board of trustees hand-picked by Gov. Ron DeSantis to convert the traditionally progressive campus to a conservative bastion.

Richard Corcoran, the former state education commissioner and state House speaker installed by the new trustees as interim president at New College, denied Viera-Vargas’s demand for independent arbitration of his denial even though he was entitled to one under the union’s collective bargaining agreement, the brief says.

A state law approved this year, SB 266, made sweeping changes to higher education governance in Florida, including bans on diversity initiatives or application of critical race theory. The measure also specified that university presidents have the last word on personnel matters, abrogating the contract’s arbitration language.

That violated the state constitutional and statutory rights of Viera-Vargas and all UFF members to enforce the existing contract, which runs until 2024, the brief argues. The plaintiffs seek a permanent ban on enforcing this point of the law or, in the alternative, a hold pending expiration of the existing contract. And the union seeks a trial by jury.

‘No remotely sufficient governmental interest’

“The Arbitration Ban cannot survive any level of constitutional scrutiny. There is no remotely sufficient governmental interest in this prohibition. Nor do the state’s means bear an adequate connection to any purported interest. Instead, the prohibition serves only to undermine plaintiffs’ constitutionally protected collective bargaining and contractual rights,” the brief asserts.

The complaint names as defendants DeSantis, the Board of Governors that oversees the state university system and its 17 members, Education Commissioner Manny Diaz, and the New College Board of Trustees and its 13 members.

“Without question, there is no justice in allowing the same university leaders who violate contractual agreements to serve as the final arbiters of whether they have acted fairly. This is why decades of labor practice have shown that third-party, neutral arbitration is a key component of enforcing contractual rights across Florida’s economy,” UFF said in a press release.

“In revoking this right, the Florida Legislature has violated state and federal law by impairing the existing union contracts at all 12 public universities represented by UFF and by undermining the right of the university system’s public employees to collectively bargain their working conditions. Nowhere is this violation seen more clearly than at New College of Florida,” the union added.

New College is a small public liberal-arts honors school, operated by the state university system, formerly noted for its commitment to diversity and inclusion. DeSantis ousted its board in January and replaced members with doctrinaire conservatives, including Christopher Rufo, originator of the campaign against critical race theory, which posits that institutional racism afflicts U.S. society.

The hope was to convert the campus to “a Hillsdale of the South,” referring to the private Christian Hillsdale College in Michigan.

New ‘evaluations’

That move was part of a broader assault on the public universities, including new “evaluations” for tenured professors, political surveys of students and faculty, and a crackdown on critical race theory. In addition, the universities have attempted to prevent professors from testifying in legal challenges to state policies and a new law shields aspects of presidential searches from public scrutiny.

According to the complaint, Viera-Vargas has been a UFF professor since 2018, teaching “about race, gender, colonialism, and musical expressions in Puerto Rican and Caribbean societies.”

“On information and belief, Viera-Vargas was denied tenure, in material part, due to President Corcoran’s disagreement with certain of the subjects Viera-Vargas teaches,” the brief says.

“Plaintiff Viera-Vargas now believes he must conform to the president’s views to keep his job at New College. The Arbitration Ban curtails Viera-Vargas’s academic freedom and forces him to engage in self-censorship. The Arbitration Ban removes his constitutional right to bargain over grievance procedures, including arbitration, as well as his contractual right to arbitration under his [contract].”

“The constitutional right to collective bargaining is a fundamental right, and thus any statute abridging the right of state employees to bargain collectively is consonant with the constitution only if it vindicates a compelling state interest by minimally invasive means,” the brief argues.

“Critically, that fundamental right includes the right to effective collective bargaining, meaning any restriction on the right to bargain collectively must necessarily violate it,” the document continues. “Statutes impermissibly abridge that right when they deny access to the core features of the collective bargaining process, such as a mandatory subject of collective bargaining.”

Contract rights

The brief notes that Article I, Section 10, of the Florida Constitution declares that “[n]o bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed,” including labor agreements. “A law that infringes on the agreed-upon obligations of parties to an active contract is unconstitutional,” the brief asserts.

Moreover, Article I, Section 6 of state Constitution guarantees the right to collective bargaining and a Florida statute requires that union contracts cover employee grievance procedures, according to the brief. “That grievance procedure must have as its terminal step a final and binding disposition by an impartial neutral, mutually selected by the parties,” it adds.

“No compelling state interest justifies the Arbitration Ban. Even if the state has an interest in taking personnel actions as to certain employees, it has no interest in doing so absent neutral review. Neutral review guarantees the integrity of such actions and helps to ensure they are fair to faculty while respecting the interests of employers,” the brief says.

“The state has already agreed to a dispute resolution procedure in the collective bargaining process and has bound itself by statute to allow such review. No circumstances have changed such that Florida could justify upending the longstanding bargained-for process for meaningful, neutral review of personnel actions for public university faculty.”

According to the brief, the state argues that the ban “makes it easier for university presidents to replace existing professors with other professors of different ideological views. But Florida has no compelling interest in firing faculty members based on their political views — such actions are constitutionally forbidden under the First Amendment to the United States Constitution.”

‘Immediate,’ ‘irreparable’ harm

The situation causes “immediate” and “irreparable” harm to the UFF and its members, the brief says, including loss of academic freedom and earned tenure rights.

Plus, the UFF and its locals “have lost, and will continue to lose, members who move to states that do not impair state university [contracts] or violate their own state constitutions, and that enforce fair grievance procedures.”