Arizona Bill Eviscerates Academic Freedom and Violates the First Amendment

Arizona State Representative Bob Thorpe has introduced an ill-advised piece of legislation that would undermine the principle of academic freedom and violate the First Amendment. If passed, HB 2120 would prevent public institutions of higher education and K-12 public schools from including curriculum or activities that “promote[s] division, resentment or social justice toward a race, gender, religion, political affiliation, social class or other class of people.”

Academic freedom demands that instructors and their institutions set the curriculum through shared governance without government interference. Otherwise, only politically popular approaches would ever be taught in classrooms.

Preventing instructors at public institutions from having a curriculum that could be seen as promoting social justice, division, or resentment is not just an unwise policy—it is also unconstitutional. It has been decades since there was any question that the First Amendment applies in full force at public universities. Indeed, in Healy v. James, 408 U.S. 169 (1972), the Supreme Court held:

[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”

Prohibiting instructors from teaching particular perspectives or topics is precisely the kind of content- and viewpoint-based restriction forbidden under the First Amendment. This does not change even if someone on campus might deem those perspectives or topics likely “to promote social justice, division, or resentment.” In practice, this legislation would confer unfettered discretion on campus administrators to shut down discussion on nearly any subject. For example, how could a professor teach about the Israeli-Palestinian conflict, the terrorist attacks of September 11, 2001, or even the American Civil War without risking being accused of violating this statute by sounding overly sympathetic to social justice—however defined—or risking the creation of resentment or division?

Another of HB 2120’s fundamental flaws is a troubling, content-based carve-out that illustrates why the framework of the bill is unworkable. It states that:

This section does not restrict or prohibit the instruction of the Holocaust, any other instance of genocide, or the historical oppression of a particular group of people based on ethnicity, race, or class.

This appears to be an effort to ensure that a professor can teach about genocide in spite of the statute’s broad language. Yet it’s not clear whether it requires instructors to do so in a manner that does not “promote division, resentment, or social justice,” or if this is the one context where it’s acceptable to promote social justice, or risk causing division or resentment. These sorts of viewpoint-based exceptions are unconstitutional. And the fact that such an exemption was included in the bill indicates that even its authors understand the perils of these kinds of blanket prohibitions in an academic setting.

What’s more, the cost for violating HB 2120, if passed and left unchallenged, could be massive. If the Arizona attorney general were to determine that the statute was violated by the educational institution, and the violation were not remedied within 60 days, he or she could direct the state treasurer to withhold up to 10% of the institution’s budgeted funding. The bill does not make clear if each violation could trigger a separate 10% penalty, or how an institution could challenge the attorney general’s determination.

In last year’s session, the Arizona legislature passed important legislation to protect college students’ free speech rights when it approved of bills that prohibited institutions from quarantining expressive activities on campus into tiny, misleadingly labeled “free speech zones.” That legislation passed overwhelmingly and with the support of Representative Thorpe. That indicates to FIRE that he cares about free speech on campus. Hopefully, now that the deeply problematic flaws in his bill have been called to his attention, he will scrap this proposal. If he does not, we hope his colleagues will do it for him. With last year’s step forward for free speech on campus, it would be a terrible shame if Arizona took such a massive step back.