The Censors’ Next Target

Never bet against the creativity of the censor.

That is one of the lessons we’ve drawn in our work at PEN America. Since 2021, we’ve counted, cataloged and analyzed more than 100 bills, laws and statewide policies designed to restrict what college and university faculty can teach, research or discuss on campus.

And what we’ve found is a legislative agenda in flux. Over the past year in particular, supporters of educational censorship bills have suffered some major defeats and embarrassing setbacks. But they have not given up. On the contrary—they continue to respond with new and innovative strategies to silence America’s college professors. Higher education needs to prepare.

First, the defeats. Restrictions on speech in higher education are not popular. A recent survey from The Chronicle of Higher Education found a bipartisan consensus among the public that professors, not lawmakers, should have the most say over what gets taught in the classroom. Support for specific bills is similarly weak.

Nor are these laws faring well in court. When Governor Ron DeSantis touted the newly passed Stop WOKE Act in 2022, he declared Florida “the state where woke goes to die.” Today it is the Stop WOKE Act that’s on life support, as a federal judge has declared that the parts of the law that censor college and university faculty are unconstitutional.

Unfortunately, this is where the good news ends. Supporters of speech restrictions have learned from their mistakes, and over the course of 2023 they began experimenting with a new approach. Parts of this approach are laid out in an article by Adam Kissel, a fellow at the Heritage Foundation. Other parts have been described by anti-CRT impresario Christopher Rufo.

The idea is simple: if you can’t restrict the academic freedom or free speech of faculty directly, go after the institutions and practices that make academic freedom possible. After all, academic freedom is not simply a state of being—it’s a complex set of relationships that, taken as a whole, insulate universities and their inhabitants from external control for political ends.

What lawmakers now propose to do is to tear those relationships apart.

Some examples of this strategy include Iowa’s HF 48, North Carolina’s HB 715 and Mississippi’s SB 2785, each of which would have banned faculty tenure at public colleges and universities. Of course, attacks on tenure are nothing new, but the intensity of today’s campaign is unprecedented. Without tenure, faculty will be easier to intimidate into silence. No need to pass a law restricting their speech directly. Stripping away tenure is more than enough.

Another example is something we call “curricular control” bills. These are pieces of legislation designed to assert legislative control over curricula in public colleges and universities. Rather than tell faculty what they can teach, curricular control bills give politicians the authority to decide whether faculty will have a course in which to teach it. For example, these bills might order the shuttering of departments or academic institutes, cancel courses, eliminate majors, or remove disciplines from general education curricula. Prominent examples from 2023 include Tennessee’s HB 1115, a proposed amendment to Wyoming’s budget bill that that would have blocked funding for any gender studies curriculum at the state’s flagship university and Florida’s SB 266, which became law. The Florida law restricts the content of general education courses and even gives political appointees on the system Board of Governors the authority to rewrite mission statements for individual universities without consulting anyone at those institutions.

A third category regulates university offices and initiatives on ideological grounds, usually in an attempt to ban diversity, equity and inclusion programs. Successful examples of this type of legislation include Florida’s SB 266 (again) and Texas’s SB 17.

A final type of bill takes aim at accreditation agencies. All the major accreditation bodies require that universities protect their institutional autonomy and respect the academic freedom of faculty as a condition of maintaining their accreditation status (and the access to federal dollars that comes with it). But that may end. In June 2023, Florida sued the federal government in an attempt to sever the link between accreditation and federal financial aid. In the meantime, it has also passed a law allowing colleges and universities to sue accreditors for any “retaliatory” or “adverse action” that causes them harm—for instance, an accreditation downgrade. North Carolina also passed a law in 2023 requiring institutions to switch accreditors every cycle and threatening anyone who “makes a false statement” to an accrediting agency with legal action. And both Ron DeSantis and Donald Trump have vowed to take attacks on accreditation national if they win the presidency.

Taken together, these bills and policies represent a clear strategy to undermine academic freedom by targeting the institutions and practices that support it: tenure, accreditation, shared governance. Weakening these safeguards enables politicians to impose ideological dictates on universities without directly censoring what professors and instructors say in the classroom.

But even as the censors’ strategy has shifted, the goal remains the same: to undermine academic freedom and the freedom to learn.