State legislatures continue efforts to restrict academic freedom

Since state legislatures convened nationwide this winter, FIRE has noticed a distinct trend: Many states have introduced and considered legislation to limit or prohibit the teaching or training of certain viewpoints on campus, generally patterned on former President Donald Trump’s “Executive Order on Combating Race and Sex Stereotyping,” which President Joe Biden rescinded on his first day in office. The bills introduced in recent months in states across the country generally aim to ban the training or teaching of so-called “divisive concepts” at public colleges and universities, along with a variety of other provisions. 

For example, a bill in Rhode Island defines “divisive concepts” as:

1. One race or sex is inherently superior to another race or sex;
2. The State of Rhode Island or the United States of America is fundamentally racist or sexist;
3. An individual, by virtue of their race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
4. An individual should be discriminated against or receive adverse treatment solely or partly because of their race or sex;
5. Members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
6. An individual's moral character is necessarily determined by their race or sex;
7. An individual, by virtue of their race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
8. Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of their race or sex; or
9. Meritocracy or traits such as hard work ethic are racist or sexist, or were created by a particular race to oppress another race

The bill then requires that all state contracts — including university contracts — “ban[] the teaching of divisive concepts and shall prohibit making any individual feel guilt, anguish, or any other form of psychological distress on account of their race or sex.”

Unfortunately, as introduced, many of the bills threaten free speech and academic freedom — some quite severely, some less so. FIRE has already written about similar bills across the country to set forth our objections, so today we write to provide an update to our readers about the progress on those bills, as well as to highlight a few more that have been introduced.

FIRE has long

cautioned that “Liberty cannot exist in a society in which people are forced to conform their thoughts and expression to an official viewpoint.”

Arkansas

FIRE first wrote about Arkansas’ HB 1218 in February, a bill substantially similar to the “divisive concepts” bills already mentioned. It was subsequently withdrawn by the bill’s sponsor in March and has had no further progress.

Oklahoma

HB 1641, a bill that is similar to the “divisive concepts” bills, was introduced in early February and is pending in the House Rules Committee. It has yet to receive a hearing. 

Iowa

Several bills threatening academic freedom were introduced in Iowa this session, not all of which are limited to the “divisive concepts” bills already mentioned. HF 222 threatened funding to community colleges and universities if: 

an institution . . . utilized any United States history curriculum during the previous fiscal year that in whole or in part is derived from a project by the New York Times, known as the “1619 Project”, or any similarly developed curriculum, the monthly appropriations paid to the institution shall be reduced by an amount proportionate to the number of days during that fiscal year that the curriculum was used.

By threatening state funding if a certain perspective is taught or discussed in United States history courses, this bill is plainly viewpoint discriminatory and unconstitutional when applied to higher education. (The bill also threatens funding for the use of the 1619 Project in the K-12 setting; that issue falls outside of FIRE’s mission, which focuses on institutions of higher education.) HF 222 passed a subcommittee in early February but has not advanced since. 

FIRE urges the legislature not to advance this piece of legislation.

We wrote about another bill pending in the Iowa legislature, SF 478, last month. Its companion bill in the House, HF 802, has passed the House of Representatives and is pending in the Senate. With only a few days left in the Iowa legislative session, we will continue to monitor its progress. The bill, while clearer than others about the line between prohibiting the training of “divisive concepts” and the academic freedom right to teach about “divisive concepts,” still suffers from the flaw of labeling broad swaths of concepts as “divisive,” strongly (and incorrectly) implying that the mere fact that some find a concept divisive is a valid reason to prohibit its being taught. And, if enacted, this bill would almost certainly create a chilling effect on what professors teach and discuss in the classroom. 

Missouri

Missouri’s HB 952 declares that: 

4. No state agency, school district, charter school, online instruction funded in any manner by the Missouri legislature, or personnel or agent of such state agency, school district, charter school, or online instruction shall teach, use, or provide for use by any pupil any curriculum, instructional materials, or assignments designed to teach components of critical race theory as part of any curriculum, course syllabi, or instruction in any course or program of study.

[...]

7. If the attorney general determines that a state-supported two-year or four-year institution of higher education has violated this section, the attorney general shall notify the institution of its violation. 

8. If a state-supported two-year or four-year institution of higher education fails to comply with this section within thirty days of notification of its failure to comply under this section, the attorney general may direct the department of higher education and workforce development to withhold the maximum of ten percent of the distribution of state funding to the institution. 

9. Once the attorney general determines that a state-supported two-year or four-year institution of higher education has complied with this section, the attorney general shall restore the distribution of state funding for the institution to its original amount before the reduction was made.

The bill also states:

Curricula implementing critical race theory include, but are not limited to, the 1619 Project initiative of the New York Times, the Learning for Justice Curriculum of the Southern Poverty Law Center, We Stories, programs of Educational Equity Consultants, BLM at School, Teaching for Change, Zinn Education Project, and any other similar, predecessor, or successor curricula.

This is blatant viewpoint discrimination. The bill attempts, and fails, to provide a savings clause of sorts, stating: 

This section shall not be construed to inhibit or violate the first amendment rights of students or faculty, or undermine a public institution of higher education's duty to protect to the fullest degree intellectual freedom and free expression, and the intellectual vitality of students and faculty shall not be infringed; or prevent a public institution of higher education from promoting racial, cultural, ethnic, intellectual, or academic diversity or inclusiveness, provided such efforts are consistent with provisions of this section.

While this suggests that the legislature is aware of the danger of applying these provisions to higher education, faculty members would be understandably reluctant to rely on such a clause to avoid the bill’s prohibition on teaching certain perspectives and banning specific texts. The pressure on faculty to avoid running afoul of the provisions would be intense, especially as it is backed with the threats of an investigation by the state attorney general and, importantly, a university-wide loss of state funds for noncompliance. The bill has passed a committee in the House and is heading to its second committee. FIRE urges the legislature not to advance this piece of legislation.

New Hampshire

New Hampshire HB 544 states that “[t]he state of New Hampshire shall not teach, instruct, or train any employee, contractor, staff member, student, or any other individual or group, to adopt or believe any of the divisive concepts defined [in the bill],” which are substantially similar to those in President Trump’s executive order. It further provides that:

No employee, contractor, staff member, or student of the state of New Hampshire shall face any penalty or discrimination on account of his or her refusal to support, believe, endorse, embrace, confess, act upon, or otherwise assent to the divisive concepts defined [in the bill].

Insofar as the bill prohibits professors from requiring students to personally adopt certain viewpoints, HB 544 protects students’ First Amendment rights against compelled speech. However, as written, the first provision is overbroad as it prohibits a professor from “teach[ing] . . . any . . . student . . . to . . . believe any of the divisive concepts defined [in the bill.]” 

The second provision is less troublesome, as it protects student and faculty conscience rights by prohibiting an institution from punishing students and faculty members for refusing to affirmatively support “divisive concepts.” It is unclear, however, what it would mean in practice for a student or faculty member to face “discrimination” for refusal to “embrace” the “divisive concepts” and, as such, likely requires some editing before advancing. The language of HB 544 has been adopted in a broader state budget bill, HB 2, and has passed the state’s House of Representatives and is pending in the Senate. According to one report, New Hampshire Gov. Sununu has threatened to veto any budget that includes this language. 

As we have explained about similar bills, such legislative intrusion prohibiting the teaching of certain viewpoints in college classrooms is unconstitutional.

Rhode Island

H 6070, the bill mentioned at the beginning of this blog, was introduced in January and has not received a hearing. According to Rhode Island’s legislative website, the bill has been held by the committee “for further study.” It appears unlikely that the bill will advance. 

Louisiana

Louisiana HB 564 was introduced earlier this month and has been subsequently withdrawn. In addition to defining “divisive concepts” similarly to the Rhode Island bill mentioned above, the bill also stated that:

Diversity and inclusion programs held at schools or sponsored by schools shall prohibit employees and students from discriminating against another person based on color, race, ethnicity, sex, political ideology, or any other characteristic protected under the federal Civil Rights Act of 1964, as amended, and applicable state law.

Presumably, this section was aimed at preventing school-sponsored segregated events, a worrisome trend occurring at institutions across the country. FIRE wrote about our concerns about mandatory, racially segregated orientation training sessions at Lewis & Clark College last fall, and while the rest of the bill is problematic for reasons similar to the other bills discussed here, this provision was welcome—though one wishes it were wholly unnecessary.

HB 564 also included a provision indicating the legislature’s intent that the “divisive concepts” ban does not infringe on discussions of topics in the classroom, stating that the bill does not “[i]nhibit or violate the first amendment rights of students or employees or undermine intellectual freedom and freedom of expression,” or “[p]rohibit discussion of divisive concepts as part of a larger course of academic instruction.”

The pressure on faculty to avoid running afoul of the provisions would be intense, especially as it is backed with the threats of an investigation.

Such a savings clause is again insufficient, particularly because the bill defines “training” to mean “the teaching and education of a student or employee by means of lecturing or textbooks, audiovisual materials, or any other kind of reference materials.” (Emphasis ours.)

West Virginia

If enacted, HB 2595 would have prohibited state funding for state agencies that “promote race or sex sterotyping or scapegoating” and further stated that “it shall be prohibited for any state funding to go towards West Virginia agencies who promote ‘divisive acts.’” The bill did not receive a hearing, and the legislative session has now ended.

Idaho

We’ve already written about the saga of the cancellation of, and modified resumption of, 52 diversity courses at Boise State University as legislative pressure mounted on state universities to rein in “social justice” courses. In our writing, we discussed a budget bill pending in the legislature which sought to cut over $400,000 from Boise State University’s budget because of the legislature’s apparent frustration with the university’s “social justice programing and critical race theory.” 

House Concurrent Resolution 12 was introduced in March and, while non-binding, declared  that “social justice education does not serve the common good” and that:

[u]niversities should eliminate courses, programs, services, and trainings that are infused with social justice ideology and [...] the Legislature should reduce funding to public universities commensurate with the spending on any social justice courses, programs, services, and trainings.

HB 352 is more pernicious, though the bill has yet to have a hearing. The bill states:

(a) No instructor, teacher, or professor at any public school [including community colleges and universities] receiving any funding from the state shall teach, advocate, or encourage the adoption of any racist or sexist concept [defined similarly to the “divisive concepts” bills] while instructing students. 

(b) No public school receiving any funding from the state shall host, pay, or provide a venue for a speaker who espouses, advocates, or promotes any racist or sexist concept.

(c) No public school receiving funding from the state shall require a student to read, view, or listen to any book, article, video presentation, digital presentation, or other learning material that espouses, advocates, or promotes any racist or sexist concept. 

As we have explained about similar bills, such legislative intrusion prohibiting the teaching of certain viewpoints in college classrooms is unconstitutional. The prohibition on outside speakers who espouse certain viewpoints is likewise unconstitutional. These viewpoint discriminatory provisions must not be enacted.

While there were a number of bills introduced in Idaho this session that threaten academic freedom in the classroom, only one bill, HB 377 has passed both chambers and awaits the governor’s signature. That bill takes a very different approach from what the legislature was considering earlier in the session. The bill’s focus is on protecting students’ freedom of conscience, not — contrary to media coverage — on prohibiting teaching about critical race theory or other topics. The bill states:

(a) No public institution of higher education, school district, or public school, including a public charter school, shall direct or otherwise compel students to personally affirm, adopt, or adhere to any of the following tenets: 

(i) That any sex, race, ethnicity, religion, color, or national origin is inherently superior or inferior; 

(ii) That individuals should be adversely treated on the basis of their sex, race, ethnicity, religion, color, or national origin; or 

(iii) That individuals, by virtue of sex, race, ethnicity, religion, color, or national origin, are inherently responsible for actions committed in the past by other members of the same sex, race, ethnicity, religion, color, or national origin.

(b) No distinction or classification of students shall be made on account of race or color.

(c) No course of instruction or unit of study directing or otherwise compelling students to personally affirm, adopt, or adhere to any of the tenets identified in paragraph (a) of this subsection shall be used or introduced in any institution of higher education, any school district, or any public school, including a public charter school.

(4) Nothing in this section should be construed to prohibit the required collection or reporting of demographic data by public schools or public institutions of higher education.

FIRE has long cautioned that “[l]iberty cannot exist in a society in which people are forced to conform their thoughts and expression to an official viewpoint.” Indeed, we published an entire Guide to First-Year Orientation and Thought Reform on Campus. 

Although HB 377’s focus on students’ freedom of conscience is a marked improvement over the legislature’s initial efforts to ban certain teachings, we remain concerned that the language in the bill could be read to prevent professors from being able to require students to engage in academic role-playing exercises or engage in devil’s advocacy. Both of those teaching techniques are common in law schools, as well as in many other disciplines. Accordingly, we urged legislators to amend the bill to clarify that within the classroom or as part of an assignment, faculty may lawfully ask students to play devil’s advocate or to put themselves in the shoes of advocates whose views they don’t personally hold. Unfortunately, they did not make our requested edit.

Still, institutions will need to be careful not to read the bill to preclude this practice from occurring, as the bill makes a point of saying that students cannot be compelled to “personally affirm” (rather than merely affirm for purposes of debate or argument) the listed tenets. That reading also happens to be the only one that is compatible with academic freedom, which the Supreme Court in Keyishian v. Board of Regents (1967) called “a special concern of the First Amendment.” FIRE believes that the bill would have benefited from further such clarification, especially given the Lt. Governor’s newly created task force to examine indoctrination in Idaho education — which invites students to report any bias in the classroom — as well as the tremendous political pressure in some quarters to crack down on the teaching of critical race theory.

FIRE will continue to monitor bills that affect academic freedom across the country and oppose measures that threaten this crucial right, and of course, will keep our readers updated on any further developments.