Reckoning With the Chilling Effect of New State Laws

Why isn’t the American higher education community, Terri Taylor asks, talking more—indeed, doing more—about this broad assault on academic freedom?

December 14, 2021
 
 
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In the past month, faculty members in Texas and Florida have raised concerns about their public universities pausing their research, attempting to block their testimony as expert witnesses or directing how they frame the study of race and discrimination in America.

These are not isolated incidents—they are most likely early signs of the chilling effect of new state laws that restrict public colleges and universities from teaching “divisive concepts” related to race and sex. At least 24 states have introduced such bills this year, and nine, including Texas and Florida, have enacted them.

Such laws impact thousands of faculty members, students and administrators. Yet while we’ve heard some public outcry against a few isolated incidents, why isn’t the American higher education community talking more—indeed, doing more—about this broad assault on academic freedom?

Educators have depended on the right to have a free exchange of ideas in their classrooms since the establishment of the American Constitution. As the U.S. Supreme Court has observed, “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”

We at the Lumina Foundation have wondered if many people are simply not aware of what these state laws actually do and the potential long-term impacts they might have. So we commissioned a legal analysis to gauge their potential effect, and here’s what we learned.

The state laws take direct inspiration from an executive order that former president Donald Trump issued in September 2020. That order defined nine “divisive concepts” and forbade federal agencies and contractors from including them in any employee training. Among the banned practices: 1) causing “any individual [to] feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex” and 2) suggesting that “meritocracy or traits such as hard work ethic are racist or sexist, or were created by a particular race to oppress another race.”

In December 2020, a federal judge granted a temporary injunction to prevent the order from taking effect. President Joseph Biden revoked it on his first day in office. But state laws along the same lines have continued to proliferate. Although their terms and legal structure vary somewhat, they, too, forbid “divisive concepts” in training and courses that public bodies, including public colleges and universities, support. Many state laws, in fact, add to the list of such divisive concepts in the Trump order, some even barring any requirement that students study The New York Times’ “1619 Project” or other specific texts.

The laws carve out significant bodies of academic work and public discourse, leaving only certain limited interpretations of American history and society as acceptable for public education classrooms. Thus, these laws are problematic from a First Amendment perspective because forbidding some specific ideas almost certainly represents content- and viewpoint-based discrimination.

These laws go against long-standing legal precedent supporting academic freedom at colleges and universities. Time and time again, the U.S. Supreme Court has embraced the idea that academic freedom is “a special concern of the First Amendment” that “is of transcendent value to all of us, and not merely to the teachers concerned.” Academic freedom “thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also … on autonomous decision-making by the academy itself.”

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If state lawmakers can forbid “The 1619 Project” and critical race theory, what prevents them from excluding the teachings of Jesus, Muhammad or Milton Friedman?

Perhaps in response to this concern, these laws include exceptions and assurances that they are not intended to violate the First Amendment. But none of the laws go on to specify what kinds of instruction related to race and sex are allowed.

The resulting vagueness in scope leaves educators unable to determine how far they can or can’t go. With significant consequences looming if they don’t get it right—negative attention, possible funding cuts or lawsuits—faculty members and administrators may decide to avoid talking about race and sex altogether.

The Supreme Court has repeatedly recognized that this “chilling effect” on speech violates the Constitution, observing that “the threat of sanctions may deter their exercise almost as potentially as the actual application of sanctions … Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”

A recent report from PEN America found that these laws are already having an impact. In Oklahoma, a public community college canceled a fully enrolled sociology course on race and ethnicity. Iowa State University issued hairsplitting guidance on how to interpret the state’s new law, including guidance on how to avoid a course “drawing scrutiny” under the measure.

Given our need to reckon honestly with our history, we as both educators and Americans do students a disservice by removing uncomfortable truths about our past. Indeed, experiencing discomfort and reconsidering how we have defined “meritocracy” are essential steps in creating a more just and inclusive world.

This isn’t even a controversial position when it comes to public opinion. A 2021 survey by the American Historical Association found that over three-fourths of respondents agreed it was acceptable to make learners uncomfortable by teaching about the harm some people have done to others.

Led by our Equity First approach, Lumina is pleased to support AHA and PEN America as they continue to educate their members and other people about these laws and their potential consequences. We are especially hopeful that college leaders, faculty and other stakeholders will join such efforts to learn and spread awareness. The fact is that higher education has a stake in these issues even when colleges and universities aren’t explicitly named in the laws. For example, teachers and K-12 administrators are charged with upholding these laws in a K-12 setting (where states have more authority to set the curriculum), presenting a difficult situation for teacher-preparation programs to navigate.

Understanding of these laws is essential if faculty and staff members are to be vigilant in guarding against chilling effects. University counsel offices in the states with those laws in effect may be particularly cautious when presented with a challenge to a training, course or other institutionally supported effort related to race, sex, equity and discrimination. But legal caution must be balanced with a robust defense of constitutional rights to freedom of speech and expression, particularly in academic settings.

At the same time, the higher education community must not rely solely on individual faculty and staff members pushing back in a thousand individual meetings with legal counsel. We should support a broad movement that embraces our strong history of constitutionally granted freedoms and seeks to unearth and remedy long-standing discrimination and inequity. After all, academic freedom is the bedrock of American higher education. Blocking certain subjects from being taught represents a crack in that foundation—one that could easily widen and damage our essential freedoms if we aren’t paying attention.

Bio

Terri Taylor is strategy director for innovation and discovery at the Lumina Foundation.

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