Wisconsin, Ohio, and Pennsylvania bills threaten academic freedom over race and sex instruction

July 1, 2021

Throughout 2021, state legislatures have improperly attempted to ban, defund, or burden the instruction and discussion of perspectives related to race and sex that they disfavor. Legislatures are doing so under the banner of addressing critical race theory. FIRE has consistently criticized these provisions as violations of academic freedom. New bills proposed in Ohio, Wisconsin, and Pennsylvania continue this trend.

First, it is important to understand the content of each bill and what it seeks to prohibit.

Wisconsin

SB 409 would direct the state’s public university system to “prohibit institutions from allowing an instructor to teach race or sex stereotyping.” Examples of the viewpoints the bill includes under “race and sex stereotyping” include:

  • “An individual should be discriminated against or receive adverse treatment because of the individual’s race or sex”;
  • “An individual, by virtue of the individual’s race or sex, bears responsibility for acts committed in the past by other individuals of the same race or sex”; or
  • “Systems based on meritocracy or traits such as a hard work ethic are racist or sexist or are created by individuals of a particular race to oppress individuals of another race.”

If adopted, students or employees could bring alleged violations of the ban to the relevant governing board, whether the Board of Regents of the University of Wisconsin System or the Technical College System Board. The board then has the authority to withhold up to 10 percent of the institution’s funding if it finds a continued violation. 

The bill also mandates that the prohibited perspectives cannot be taught in institutional trainings. (As explained further below, FIRE has noted previously that provisions like these that apply to training rather than curricula are likely within a legislature’s discretion.)

Ohio

HB 327 states, “No state agency shall offer teaching, instruction, or training on divisive concepts,” and expressly includes institutions of higher education under the definition of a state agency. The legislation variously labels barred viewpoints “divisive concepts,” “race or sex stereotyping,” or “race or sex scapegoating.” Many of the viewpoints this bill prohibits overlap with Wisconsin’s SB 409, such as:

  • “An individual should be discriminated against or receive adverse treatment solely or partly because of the individual’s nationality, color, ethnicity, race, or sex”;
  • “An individual, by virtue of the individual’s nationality, color, ethnicity, race, or sex, bears responsibility for actions committed in the past by other members of the same nationality, color, ethnicity, race, or sex”; and
  • “Members of one nationality, color, ethnicity, race, or sex cannot and should not attempt to treat others without respect to nationality, color, ethnicity, race, or sex.”

HB 327 bans additional perspectives from teaching and instruction. For instance, it defines “Race or sex stereotyping” as “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a nationality, color, ethnicity, race, or sex or to an individual because of the individual’s nationality, color, ethnicity, race, or sex.” The bill additionally prohibits the perspective, “The United States is fundamentally racist or sexist.”

HB 327 extends even farther than Wisconsin’s SB 409 in its viewpoint suppression by barring faculty and staff from expressing such views even in the faculty lounge. It requires a college administration to “ensure” that the prohibited perspectives “are not taught, advocated, acted upon, or promoted by the agency’s employee during work hours.”

HB 327 additionally forbids institutions from spending any money to promote the perspectives it prohibits or accepting money for that purpose. This provision has no limiting language ensuring that it would not lead to intrusions on academic freedom or discrimination on the basis of viewpoint. It does not exempt student organizations, outside speakers invited by a member of the university community, or even scholarship recipients from certifying that they will not express or advance a prohibited perspective.

Like Wisconsin’s SB 409, the bill also prohibits institutions from promoting the prohibited perspectives in its trainings. Additionally, it prohibits institutions from punishing anyone for refusing to assent to or believe in those perspectives. (As explained further below, provisions like this, while well-intended, should be amended for clarity.)

Pennsylvania

HB 1532, like its counterparts in Ohio and Wisconsin, bans faculty from teaching certain perspectives in the classroom. The bill labels the kind of viewpoint it forbids a “[r]acist or sexist concept.” Again, many of the examples of the proposed, banned viewpoints overlap with other legislation, including:

  • “An individual, by virtue of the individual’s race or sex, bears responsibility for actions committed in the past by members of the individual’s race or sex”;
  • “One race or sex is inherently superior to another race or sex”;
  • “An individual should be discriminated against or receive adverse treatment due to the individual’s race or sex”; or
  • “The United States of America or the Commonwealth of Pennsylvania is fundamentally racist or sexist.”

Similar to Ohio’s HB 327, the bill bans an institution from spending any money to “express, publish, advertise or promote” any of the banned perspectives. It expressly bans a school from even providing a “venue” to a speaker that expresses a prohibited perspective.

Also like Ohio’s bill, Pennsylvania’s bill would prohibit institutions from promoting the prohibited perspectives in its trainings, as well as punishing anyone for refusing to assent to or believe in those perspectives.

Bans on viewpoints in classrooms are both unnecessary and unconstitutional

It is FIRE’s position that bills like these are unnecessary. 

State and federal antidiscrimination law already prohibits government entities, including state universities, from race and sex discrimination. Indeed, a member of a university community already may submit a complaint to the Department of Education’s Office for Civil Rights or litigate under statutes that ban race or sex discrimination, like Title VI or Title IX or similar state law, if they receive adverse treatment in the classroom because of a protected characteristic. These avenues allow for allegations to be handled on an individual basis with an appropriate attention to context that a blanket ban cannot offer. Using existing law avoids prior restraint and provides a meaningful remedy to resolve cases of discrimination yet offers the classroom the breathing room it requires to examine provocative ideas around race and sex. 

In addition, when these bills prevent the teaching of ideas in the public college or university classroom, they are unconstitutional. The Supreme Court has called the protection of free speech under the First Amendment “nowhere more vital than in the community of American schools.” In fact, in Keyishian v. Board of Regents (1967), the Supreme Court went further than that and declared academic freedom to be a “special concern” of the First Amendment. Free expression in the college classroom, the Court wrote in that case, is “of transcendent value to all of us, and not merely to the teachers concerned,” in part because “[t]he Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.” The bills undermine this “special concern” by restricting views these legislatures disfavor.

As these bills fail to employ appropriate standards to sort protected speech from unprotected speech, they are also unconstitutionally overbroad.

Second, the bills are also unconstitutionally overbroad. Even if some of the prohibited perspectives deployed in certain contexts might violate civil rights law, many of the banned perspectives are well within ordinary academic discourse. For example, a discussion of whether and to what extent federal, state, or other American institutions are fundamentally racist — a subject of significant historical and contemporary debate — would be prohibited from the classroom by the Pennsylvania and Ohio bills. The notion that college campuses must be open to relevant deliberations is key to preserving campuses as marketplaces of ideas, to use another phrase often cited by the Court.

While it is easy to see why collegiate classrooms must not be prohibited from exploring topics of extensive political debate, many people bristle at considering the view that individuals could be collectively responsible for the sins of their ancestors. In a misguided effort to address that discomfort, all three bills would, in effect, ban faculty from arguing for the notion of collective responsibility. 

However, philosophers across time and schools have argued for kinds of collective responsibility, from the humanist Karl Jaspers to the conservative Catholic Alisdair MacIntyre. These longstanding debates must not be excised from continued scrutiny by a state legislature. Additionally, the overbreadth of these provisions is illustrated by the fact that bans on teaching topics also effectively prohibit discussions critiquing those topics. As these bills fail to employ appropriate standards to sort protected speech from unprotected speech, they are also unconstitutionally overbroad.

Third, the bills serve as a form of prior restraint. Prior restraint occurs when expression is prohibited before it is even aired. Prior restraint might be a less common censorship tactic than punishing expression after it happens, at least in the United States, but it can be an even more dangerous tactic since it prevents a view from even reaching an initial audience. As the Supreme Court put it, if “a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.” These concerns led the Court to declare prior restraint “the most serious and the least tolerable infringement on First Amendment rights.” The bills also cross this First Amendment redline by prohibiting the discussion of these perspectives altogether instead of punishing expression on a case-by-case basis after it has been sufficiently determined to be unlawful.

Fourth, some of the provisions that restrict how an institution distributes its funds expressly violate the Supreme Court’s requirement for viewpoint nondiscrimination. As noted before, the Supreme Court’s decision in Rosenberger v. Rector and Visitors of the University of Virginia (1995) held that a public institution of higher education may not discriminate against funding a student publication based on that publication’s viewpoint. There, the Supreme Court observed that a legislature may not “discriminate invidiously in its subsidies” in order to prohibit disfavored ideas. Funding restrictions in Ohio and Pennsylvania do precisely that and are thereby starkly unconstitutional. 

Similarly, both bills — those in Ohio and Pennsylvania — would require institutions to impermissibly deny funding for speakers based on those speakers’ viewpoints. Egregiously, Pennsylvania’s HB 1532 goes a step further by expressly forbidding institutions from even providing a venue for speakers who espouse these disfavored views. This provision is reminiscent of the speaker ban the North Carolina legislature enacted in 1963, prohibiting any known communists from speaking on the state’s public campuses. The ban was blatantly unconstitutional and struck down in court. Like the North Carolina speaker ban, HB 1532’s bar on disfavored speakers is also classic viewpoint-based discrimination and textbook prior restraint. The better approach is to deal with controversial arguments through engagement and critique, avoiding cycles of censorship instituted by those with a politically dominant viewpoint. 

While a legislature may be able to restrict how the funds it provides are spent in certain contexts, the provision in Ohio’s HB 327 that would allow institutions to demand that a grant recipient certify that they will not use the grant to promote a prohibited perspective could also harm academic freedom and invites viewpoint discrimination. Consider a public university that offers financial scholarships to doctoral candidates. Under HB 327, an institution could force a student in moral philosophy to promise that they will not write their thesis in favor of collective responsibility. Otherwise, the university might be deemed to have violated the bill by offering a grant (a scholarship) to a recipient (the doctoral candidate) who used it to promote a banned perspective (a thesis advocating for collective responsibility). This result is obviously unacceptable under any definition of academic freedom.

Provisions that control institutional trainings and protect conscience are unobjectionable

Not every provision in each bill is objectionable. 

For instance, provisions in legislation that prohibit perspectives from being promoted in institutional trainings are more clearly within a legislature’s authority. Generally when conducting training, a university acts as a government body speaking for itself, not as a facilitator and protector of open expression and inquiry, and the government has a right to control its own speech. 

If these bills are enacted without resolving FIRE’s concerns, we will be ready to challenge them.

However, legislation must be clear that classroom instruction is not included in the term “trainings.” This distinction is important to avoid a repeat of the situation in Oklahoma, where a bill most straightforwardly read to only implicate mandatory trainings was cited by Oklahoma City Community College as grounds for pausing an elective sociology course on “race and ethnicities.” Legislators should amend these bills to make this distinction clear. 

Additionally, Ohio’s HB 327 and Pennsylvania’s HB 1532 both protect an individual from suffering a penalty for refusing to believe in or assent to one of the prohibited perspectives. To the extent that these provisions codify existing First Amendment rights against compelled speech or belief, they are unobjectionable. However, provisions like these should clarify that they do not apply to legitimate pedagogical methods, like requiring a student to role play, argue from a certain perspective, or answer a test question correctly. Furthermore, these provisions would be far more commendable if they protected an individual’s right to refuse to assent to any forced belief, instead of just those beliefs currently disfavored by these legislatures.

As they stand now, the Wisconsin, Ohio, and Pennsylvania bills must be amended or rejected 

As currently drafted, Wisconsin’s SB 409, Ohio’s HB 327, and Pennsylvania’s HB 1532 threaten faculty, student, and institutional academic freedoms. None of these bills should move forward without significant amendment. FIRE stands ready to assist legislators to amend these bills and will seek to do so. 

As they stand, all bills warrant a “no” vote. If these bills are enacted without resolving FIRE’s concerns, we will be ready to challenge them. 

Faculty whose rights are imperiled or curtailed under these or similar provisions, or by their institution’s efforts to crack down on disfavored speech to appease legislators proposing these bills, should contact us.