Strike up the bans: Nearly 50 gag orders target freedom of speech in higher ed

From critical race theory to LGBTQ, legislators are pushing to shut down some teachings and trainings, and the three ways college leaders can change that.

Republican Senators David Bullard and Ron Standridge have offered two separate pieces of legislation that would ban public colleges and universities in the state of Oklahoma from allowing professors to present “anti-American bias” and prevent students from attending courses that “address any form of racial diversity, equality or inclusion curriculum.”

Whether they will be adopted is still up for debate—the first item has been pending for a year while the second was just introduced a week ago. Standridge also has another bill that would ban junior and technical colleges from hiring individuals known to have taught critical race theory, while fellow Republican Jim Olsen has similar legislation trying to thwart teachings on the history of slavery.

Oklahoma is hardly an outlier. There are 25 other states—and 48 pieces of proposed legislation—that are working to limit or bar free speech and expression at public colleges and universities. Many of them specifically target higher education, although some are bundled with K-12 bans. These gag orders are squarely aimed at a number of hot-button and polarizing issues such as CRT, religion, gender identity and the LGBTQ+ community. They hope to not only silence classroom discussions but also prevent the employment of those who instruct on the topics.

“The numbers are staggering. We’re looking at 155 bills that have been filed since January 2021, including 18 in the state of Missouri alone,” says Jeremy Young, senior manager of free expression and education at PEN America, a nonpartisan agency dedicated to ensuring free speech. “The number that targets higher ed has definitely increased since last year. Twelve bills have passed so far, and three relate to universities (one on classroom teaching, two on diversity training). There is fear and alarm on campuses in states where they’ve passed and chilling effects that go far beyond the text of the bills.”

More from UB: What is really being taught in a course on critical race theory?

Young references two states—Oklahoma and Iowa—where bans have led leaders at a couple of colleges and universities to cancel an elective class on CRT and issue guidance to faculty to “avoid scrutiny” and “in an abundance of caution” eliminate some items from their syllabi. With the fear and the proposed bans—more than 100 have K-12 schools in their crosshairs, too—has American society reached the moment Ray Bradbury warned about in Fahrenheit 451?

“Each of them carries a different piece of the surveillance and censorship state that gives the government broad license to censor conversations about Americans history, the origins of racism and injustice, the very existence of LGBT people,” said Nadine Smith, executive director of political advocacy group Equality Florida, during a recent roundtable held by PEN America.

Florida is one of the strongest states pushing against the LGBTQ+ community with its pending “Don’t Say Gay” legislation targeting K-12 schools. But several others are on the way, including one from Sen. Joe Gruters that wants to ban “public colleges and universities from teaching, advocating, or promoting divisive concepts, race or sex scapegoating in curriculum or mandatory training.”

Young says Black identities and experiences and LGBTQ are getting the most attention, including “15 bills in eight states specifically targeting speech around homosexuality or LGBTQ status, bills that say that you are not allowed to assign material that mentions homosexuality.” One bill in Kansas would ban discussions or materials in K-12 schools related to “sexual conduct”, which effectively refers to homosexuality. But it doesn’t stop there. If approved, colleges and universities that want to address it could only do so through an “approved course or program of instruction.” Here are the eye-opening refrains in three of the bills:

  • One in Alabama wants to ban public institutions from teaching or training employees, staff or students “to adopt or believe divisive concepts.”
  • Another in Pennsylvania aims to prevent universities that try to “host, pay or provide a venue for a speaker who espouses, advocates or promotes any racist or sexist concept.”
  • Two bills in separate states, one in New York and one in Missouri, aim to bar institutions from mandating that students learn about the 1619 Project.

There are scores of other bans being proposed that likely would shake the foundations of higher education if they were imposed. And lawmakers aren’t just stopping at bans. They are trying to root out those who do the teaching and those institutions that are forging ahead with trying to include those topics in curriculum and in training.

“There are bills out there right now that would basically make it impossible to hire someone in an African American Studies Department, someone in a Gender and Sexuality Studies Department, not to mention someone who teaches African American history, or Sociology of Gender, or Gender in Business,” Young says. “It says you can’t put it in the job description.”

‘The polarization is distressing’

Many legislators want to extend that control by imposing punishments on those who would violate these new laws. Although mostly at the K-12 level, there are some that extend to higher education, including the threat of pulling state funding, loss of accreditation, professional discipline including the mandatory firing of employees in some cases, and even criminal prosecution as the above-mentioned bill in Kansas proposes. But the biggest setback for institutions might be the loss of learning and the loss of cultural knowledge for students.

“That’s the biggest risk here,” Young says. “There is a reason that college campuses are a bastion of free expression and academic freedom. It is the best environment for students to learn about the widest range of perspectives and to understand the world around them in the most complete way. When there is an attempt to limit colleges and schools, free expression is what suffers. Student learning suffers.”

PEN America is nonpartisan, but Young says this current wave of potential suppression is alarming.

“We take stances against attacks on free speech from the left and the right,” he says. “We don’t see free speech as a partisan issue. We see it as something that everyone can agree on. This is an issue that has been almost perfectly polarized politically. You can predict more clearly than you should whether one of these bills is going to pass based on the political composition of the legislature and the governor’s office. The polarization around this issue is distressing.”

So what’s driving this massive push where there are so many proposed bills coming forward?

“It is a competition. Every conservative legislator wants to be able to say that they are the person who passed the bill that shut down critical race theory,” Young says. “So they’ll all propose bills, and generally only one or two of them are going to move forward.”

What could change the dynamic, if not completely, might be higher ed administrators themselves “really putting some muscle behind trying to stop these bills,” he says. “I wouldn’t underestimate the amount of power they have.”

They can do this in three ways, Young says. Administrators can tell address the issues with their communities and say “this doesn’t affect our campus because our campus cares for the values of free expression and inclusivity.” The second would be to let faculty and students know that they are defending them and their rights, especially when bills do not apply to them. They can do that through public statements. The third, and perhaps the most critical especially at public institutions, is they can lean on lobbyists to try to prevent them from going further or changing the language in them. “If they push back against these bills in their lobbying meetings,” Young points out, “they do have the ability sometimes to curtail what some of them are doing.”

Chris Burt
Chris Burt
Chris is a reporter and associate editor for University Business and District Administration magazines, covering the entirety of higher education and K-12 schools. Prior to coming to LRP, Chris had a distinguished career as a multifaceted editor, designer and reporter for some of the top newspapers and media outlets in the country, including the Palm Beach Post, Sun-Sentinel, Albany Times-Union and The Boston Globe. He is a graduate of Northeastern University.

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