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FIRE has been tracking and engaging with legislation that would regulate how race and sex is discussed on college and university campuses. 

In the past few years, this typically came in the form of bans on training or teaching so-called “divisive” concepts. This legislative season appears no different as several states in the past three months have either issued executive orders or introduced legislation on this topic.

These states include , , , , , , , , , and . 

While FIREtakes no position on bill provisions that apply to the K-12 context, in which states generally have broader authority to set curricula, it’s worth noting that even with such broad authority, K-12 legislation could face vagueness challenges if it does not clearly set forth what it prohibits. 

VICTORY: After FIRElawsuit, court halts enforcement of key provisions of the Stop WOKE Act limiting how Florida professors can teach about race, sex

Press Release

A federal court halted enforcement of key parts of Florida’s “Stop WOKE Act” in the state’s public universities, declaring that the law violates the First Amendment rights of students and faculty.

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We also do not oppose provisions that would regulate or prohibit mandatory non-credit-earning training at institutions of higher education. Restrictions on the content and views expressed during non-credit-earning training doesn’t infringe on the First Amendment or principles of academic freedom because the content of those trainings constitute the government’s own speech. The government is allowed to regulate its own speech and that of government agencies under its control. We also acknowledge that the government can prohibit institutions from compelling students or faculty to communicate personal agreement with views they do not hold.

FIRE, however, does oppose legislation that would institute curricular bans on particular concepts or ideologies at institutions of higher education. These curricular bans threaten academic freedom — which protects the rights of faculty to teach and assert positions as they see fit — and disregards decades of judicial precedent confirming the critical importance of academic freedom in higher education. 

FIRE will fight any legislation that crosses the bright line that prohibits the government from banning ideas in college classrooms. Indeed, FIREis currently fighting Florida’s “Stop WOKE Act” in federal court, a law passed last year that restricts instruction on eight concepts related to “race, color, national origin, or sex” in college classrooms. After we filed suit, the court halted enforcement of the law, recognizing that it violates the First Amendment rights of students and faculty.

While we wrote about this topic on multiple occasions over the past three years, we want to update our readers about some of the new bills that have been introduced in states across the country so far this year:

Missouri

�Ѿ������dzܰ���’s would prohibit an employee of an institution of higher education from requiring or making “part of a course,” eight concepts related to race or sex stereotyping. Like Florida’s Stop WOKE Act, this provision threatens free speech and academic freedom by regulating what faculty members are allowed to say in their classrooms. 

Oregon

�����𲵴Dz�’s contains a similar ban on teaching certain concepts in higher education. According to the bill, a public institution of higher education and its employees “may not in any instructional or other context … [r]equire, compel, coerce or otherwise direct a student … to acknowledge, affirm, declare, confess, state or in any way act in accordance with a belief” in three concepts related to “race, ethnicity, color, sex, gender, religion or national origin.” It also restricts funding “for a purpose” prohibited by the bill.

If we expect our public colleges and universities to be true marketplaces of ideas, legislatures must avoid dictating how topics are taught on campus.

The phase “instructional or other context” no doubt applies to classrooms. And while no student should be compelled or coerced into affirming, declaring, or confessing certain beliefs by an institution and its faculty members, terms such as “require” and “acknowledge” may leave room to punish faculty members for issuing assignments on these topics, which will no doubt chill discussion of issues like race and sex altogether. This language can and should be cleaned up to clarify that while compelled agreement is off the table, acknowledging the existence of certain arguments is permissible. 

South Carolina

South Carolina’s requires the board of trustees for each college and university to “implement policies respecting the intellectual freedom and dignity of each student, teacher, and staff member,” but states that “instruction and teaching materials on the topics enumerated in this section must be consistent with” six principles related to race and gender. 

The section enumerating the topics states the following:

Instructional personnel may facilitate discussions and use curricula to address, in an age-appropriate manner, how the freedoms of persons have been infringed by sexism, slavery, racial oppression, racial segregation, and racial discrimination. Such discussions may include topics related to the enactment and enforcement of laws resulting in sexism, racial oppression, racial segregation, and racial discrimination, including how recognition of these freedoms have overturned these unjust laws. However, classroom instruction and curricula may not be used to indoctrinate or persuade students to any particular point of view inconsistent with the principles of this section or State academic standards.

One of the principles, for example, states that “an individual should not be discriminated against or receive adverse treatment due solely to his race or gender.” By requiring college classrooms to only teach about racial oppression through that lens, the state is in essence prohibiting faculty from arguing in favor of affirmative action.

Another problem with the language above is that it requires collegiate instruction to be age-appropriate. But, because a vast majority of college students are adults, the state does not have an interest in ensuring that course materials or discussions are age-appropriate. It’s also clear that this bill would impermissibly restrict some viewpoints while permitting others.

Moreover, when does classroom instruction and curricula cross the line into being used to “indoctrinate or persuade”? It’s unclear.

West Virginia

West Virginia bills and prohibit state funding for state agencies “who promote race or sex stereotyping or scapegoating” and for “West Virginia agencies promoting ‘divisive acts.’” It defines “divisive concepts” in a manner similar to other “divisive concepts” bills.

The West Virginia Higher Education Commission, which “develops and oversees a public policy agenda for West Virginia’s four-year colleges and universities,” is listed as a state agency on West Virginia’s government , so such policies would impact colleges and universities. This bill must be amended to make clear that this provision does not apply to college and university classrooms or to funds that are made available to host events.

Looking ahead

If we expect our public colleges and universities to be true marketplaces of ideas, legislatures must avoid dictating how topics are taught on campus. FIREwill continue to monitor bills that affect academic freedom and First Amendment rights across the country and will continue to oppose measures that threaten these crucial rights. 

We will keep our readers updated on any further developments.