After FIRE turns up the heat, Iowa State revises unconstitutional guidance for instructors to self-censor

• Public university warned instructors to censor class discussions on race and gender in response to legislation challenging critical race theory
• Iowa State revises policy after letter from FIRE, removing warning that law restricts pedagogically relevant class discussions
• But: Iowa State suggests faculty members’ academic freedom is not protected by the First Amendment, clings to dubious interpretation of new state law

AMES, Iowa, Aug. 11, 2021 — Following a letter from the Foundation for Individual Rights in Education, Iowa State University is walking back its warning to faculty members that new legislation requires them to self-censor pedagogically relevant class discussions on race or gender. 

After FIRE challenged Iowa State’s misinterpretation of House File 802 on July 27, the university revised its guidance concerning the law’s application to the classroom. ISU threatened its faculty members’ First Amendment rights by warning — incorrectly — that the law designed to combat critical race theory requires administrators and faculty to censor class discussions. (A before-and-after look at what changed in the policy is here.) That interpretation, as FIRE’s letter noted, was inconsistent both with the law’s text — which broadly exempts in-class discussion — and with the University of Iowa’s correct interpretation, which pledged to faculty that the law would have “zero impact within the classroom as academic instruction is specifically exempted from the legislation.”

In a letter responding to FIRE, Iowa State defended its interpretation of the law and suggested that the question of whether faculty members have First Amendment rights in teaching is unresolved. 

Iowa State’s doubt that its faculty members’ academic freedom is protected by the First Amendment is disappointing — courts across the country have recognized that the First Amendment treats faculty members’ speech differently than other public employees’ on-the-job speech — and reflects administrators’ reluctance to defend its faculty members’ expressive rights. 

Nevertheless, the university invokes its academic freedom policy in revising its FAQ, which now notes that “academic instruction of the defined concepts where those concepts are germane to [the] subject matter of the course, pose little or no risk of drawing scrutiny under HF-802.” That walkback — coupled with the revisions to the FAQ, including removal of a troubling warning that a violation of the law was “likely . . . even though discussion of the concepts may be considered germane” — suggests that the university realized changes were necessary to bring itself into compliance with its First Amendment obligations.

“Iowa State’s response is imperfect, but does a better job of reassuring faculty members that the law does not require them to censor relevant class discussions, even if they touch on ‘concepts’ viewed dimly by the state legislature,” said FIRE attorney Adam Steinbaugh. “The law does not prohibit those conversations — nor could it, since the First Amendment protects discussion relevant to the subject matter of a class.”

The statute requires that mandatory trainings for faculty or students do not include prohibited “divisive concepts,” such as any belief or theory that ascribes “character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of the individual’s race or sex.” The statute also makes clear that while it is intended to regulate teaching and classes in K-12 institutions, it only applies to administrative “training” — not instruction — in higher education. 

ISU ignored the law’s focus on “training” sessions and warned faculty that the law requires the university to police not just trainings, but regular class instruction, including discussions, course materials, and invited speakers. The university’s guidance to faculty asserted that even pedagogically relevant material is subject to the law’s restrictions if presented in a class that might somehow be required — or simply hard to avoid — for any single student.

By declaring that the statute reaches the classroom, and advising that certain ways faculty might teach and discuss difficult topics could violate state law, ISU essentially told its faculty hoping to teach about race or gender to self-censor. 

While pleased that ISU updated its FAQ and took out the most egregious example of self-censorship, FIRE remains concerned that ISU’s interpretation of the legislation has already produced a chilling effect on faculty speech. Further, its insistence that the law applies to classroom discussions at all — presumably reaching even passing references to prohibited “concepts” if they are not germane to the class — inappropriately invades classroom discussion, which the law does not require. As FIRE’s letter explained, if the law were applied to the classroom, it would limit a large range of protected speech. 

“As long as Iowa State insists that this law can be applied to the classroom in any capacity — and insists that the First Amendment does not protect academic freedom — faculty will have reason to be concerned that administrators might use the statute to improperly scrutinize their teaching methods,” said Steinbaugh. “FIRE will be watching to make sure that ISU not only follows their updated guidelines, but refuses to chill any germane classroom discussion of race or gender.” 

Faculty members at ISU — or in any state that has adopted similar legislation — are encouraged to contact FIRE if they’re required to change their teaching because of these laws or their institution’s implementation of them.

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience — the essential qualities of liberty.

CONTACT:

Katie Kortepeter, Media Relations Associate, FIRE: 215-717-3473; media@thefire.org