Stopping WOKE in Alabama | AL SB 129

By: Sam LaFrance

February 27, 2024

Alabama is poised to pass the most pernicious educational gag order impacting higher education since Florida’s Stop WOKE Act became law – and in some ways, it’s even more restrictive. 

Like many gag orders, SB 129 includes a prohibition on the “divisive concepts” popularized by a Trump executive order in 2020 which ban large swaths of educational speech about race, racism, sex, and American history. The bill would ban faculty from requiring any student to participate in coursework that “advocates for or requires assent to a divisive concept” – essentially a ban on even including such content in a course, an extreme prohibition currently present only in Florida’s currently-stayed Stop WOKE Act among higher ed laws. The bill also edits one of the familiar “divisive concepts,” prohibiting content that contends an “individual should accept, acknowledge, affirm, or assent to a sense of guilt, complicity, or a need to apologize on the basis of his or her race, color, religion, sex, ethnicity, or national origin.”

This new language would prohibit assigning readings of essays, books, or films where the author expresses that they feel complicit in past wrongs because of their identity, or historical documents demonstrating historical perspectives on race, gender, or class. This is a more expansive restriction than even Florida’s HB 7 (Stop WOKE), which only prohibits assigning readings advocating for complicity, not merely expressing the author’s experience

Alongside coursework, the bill would prohibit DEI offices and programming that determines participation based on identity group, which could include info sessions for international students or university recognition of the Black Student Union. And should public universities attempt to get around the severe measures in this bill by using federal or private funding, they will find themselves stymied by a clause prohibiting them from procuring any money to fund such activities. 

The result would be a campus environment devoid of intellectual freedom, and a state law so draconian that it gives Florida a run for its money.

More cowboys, less freedom | WY SF 1S3013

By: Sam LaFrance

February 26, 2024

Legislators in Wyoming are hoping that when it comes to banning gender studies, the third time’s the charm.

The legislature is attempting once again to defund gender studies departments at the University of Wyoming. The budget amendment was adopted by the Senate and failed to pass the House; it could still become law via the budget reconciliation process. A separate budget amendment, which passed the Senate, would also ban most DEI initiatives at UW. 

The gender studies ban would prohibit state or federal funds for gender studies majors, minors, courses, or even extracurricular activities. According to the sponsor, the intent of the amendment is to prohibit universities from funding something that is “more of an ideology than a program.” 

“The world needs more cowboys,” said another senator. “The world does not need more social justice warriors.” Ideological meddling in higher education, then, is acceptable to the bill’s supporters – so long as it reflects a certain viewpoint.

It is hard to imagine a more severe violation of academic freedom than for the legislature to ban an entire field of academic inquiry that they don’t like. In allowing the state to “micromanage” the affairs of the university, in the words of a senator who opposed the bill, Wyoming’s proposal parallels Florida’s effort to restrict access to sociology on public campuses and attempt to severely limit the scope of teacher preparation programs. 

The attack on gender studies specifically echoes a move at the New College of Florida to dissolve the school’s gender studies program for openly ideological reasons, which PEN America previously compared to Viktor Orbán’s prohibition on gender studies in Hungary in 2018. And like in Hungary, the bans may be a signal that broader ideological attacks are on the horizon.

New ‘diversity’ bills in Kentucky and Indiana miss the mark

By: Sam LaFrance

February 16, 2024

Lawmakers across the country are focusing on diversity in higher education, both in the form of “intellectual diversity” on campus and diversity, equity, and inclusion initiatives. In Indiana, a new bill would allow students to rat out professors who fail to promote “intellectual diversity,” while in Kentucky, lawmakers are targeting class teachings that would promote “resentment” of another class of people. Both bills are likely to chill speech on campus.

 

Indiana’s intellectual diversity in name only

Indiana SB 202 threatens tenure protections and disregards academic freedom at public universities – and it sailed through the state senate this month. Much like an Ohio bill that nearly passed last year, SB 202 is preoccupied with “intellectual diversity” – the phrase appears in the bill 37 times. But the mechanisms it creates will actually threaten the diversity of ideas available on Indiana campuses. 

The bill does this by creating a tipline for students to report professors who fail to adequately promote “intellectual diversity” in their classrooms. Professors reported on the tipline could then face a hearing with the board of trustees, who could then deny them tenure or promotion. Importantly, tenure would not save professors either: The board of trustees would also have to conduct a post-tenure review process every five years to assess if the faculty member has made adequate attempts to foster “intellectual diversity” in their classrooms. If they haven’t, by metrics legislators have so far failed to specify, professors may be fired by the trustees without any input by other faculty. 

Intellectual diversity on campus is an undeniably good thing. But because defining it is necessarily subjective, it’s best adopted as a guideline, not enforced by the power of the state. Mandating that each professor foster it in nonspecific ways is a recipe for self-censorship and politically motivated reporting – and it is a direct violation of academic freedom, which allows professors broad latitude to set their own syllabi and run their own classrooms. 

To understand the problem with encouraging students to report their professors for their speech, look no further than Florida, where one professor reported feeling “pressure from students to give them a grade that they want in exchange for not submitting a complaint about me.” This would easily become the reality in Indiana under SB 202.

 

In Kentucky, no diversity at all

“We aren’t always for diversity,” according to Kentucky state senator John Schickel, who believes it is “being thrown way out of proportion.” His solution to this allegedly disproportionate attention is to support SB 6, a bill prohibiting professors from discussing vague concepts with adult students at the university level. 

SB 6 would prohibit professors in gen ed courses or program requirements from promoting “discriminatory concepts,” a laundry list of vague terms that builds upon the “divisive concepts” common in educational gag orders since 2020. This prohibition would now apply in any course offered for general ed credit or required in any major. The “discriminatory concepts” include anything that promotes “resentment of … a class of people,” a category so broad that it would prohibit instruction that implies disapproval of, for example, litterbugs, animal abusers, or historical enslavers. The bill would also ban the use of state funds for any activity promoting these concepts, which would hamstring the ability of professors and students to go to conferences, subscribe to journals, or advance research partnerships — all based on the DEI programming of external, private institutions. 

In doing so, SB 6 would impinge on academic freedom and undermine the university’s ability to educate students. As University of Kentucky president Eli Capilouto put it, the bill would prevent the university from building “a community where everyone feels as though they belong as we pursue our mission to advance this state in everything that we do.” College presidents comment on legislation only rarely and only when the bill would impact the university in “potentially significant ways,” Capilouto said. “This is one of those moments.”

The bill just passed the state Senate despite opposition from the president of the Kentucky Council on Postsecondary Education. It heads to the House next, and if it passes there, will likely be vetoed by Governor Andy Beshear before heading back to the legislature for an override vote.

 

These bills, and more like them, are tracked in PEN America’s Index of Educational Gag Orders.

Nebraska lawmakers are considering damaging DEI and tenure bans

By: Sam LaFrance

February 12, 2024

Legislators in Nebraska are hard at work undermining higher education in the state in the name of destroying “woke” ideologies. Below are two bills that would threaten tenure, academic freedom, and university autonomy. If passed, the bills would put the future of higher education in Nebraska in serious doubt. 

Both bills are opposed by the University System of Nebraska, as well as the Association of Students of the University of Nebraska.

 

So long, tenure

With only a few lines of text, a new bill would wipe out one of the strongest foundations of academic freedom in higher education. Nebraska LB 1064 would prohibit tenure in the state university system, leaving current faculty members in doubt over their employment status. The bill is almost comically short on detail about what would happen to currently tenured faculty and will also likely scare off new hires who can pursue tenure protections elsewhere.  

In sponsor Sen. Loren Lippincott’s own words, he introduced the bill to combat “woke ideology” on campus. However, by eliminating tenure, this bill will do nothing but facilitate brain drain as qualified faculty turn to states without restrictions. Tenure exists to protect professors from political and corporate pressure, allowing them to research freely and teach according to their expertise. Sen. Lippincott may fail to see the irony in eliminating this protection for political reasons, but we don’t.

 

What’s DEI anyway?

In another bill, LB 1330, a litany of concepts would be banned from programming and initiatives in public colleges and universities. The list includes: “Unconscious or implicit bias, cultural appropriation, allyship, transgenderism, microaggressions, microinvalidation, group marginalization, anti-racism, systemic oppression, ethnocentrism, structural racism or inequity, social justice, intersectionality, neopronouns, inclusive language, heteronormativity, disparate impact, gender identity or theory, racial or sexual privilege” – and “any concept substantially related to any of these theories.”

This bill includes these concepts within its absurdly expansive definition of DEI, and goes on to prohibit any state funds being used to promote them. This broad definition could restrict funding for conferences or research projects, transition services for international students, or even student organizations. 

LB 1330 also prohibits colleges and universities from taking any official position on any of those concepts. That means that not only would DEI offices and initiatives become illegal, but so could cultural heritage celebrations, Pride month displays, preferred pronoun name tags, or anything that could be interpreted as “inclusive language.” The restriction on “any concept substantially related to any of these theories” is so vague that it could effectively ban universities from promoting any idea of any kind.

LB 1330 would hobble the state’s public colleges and universities, sowing chaos and confusion as general counsels attempt to interpret the list of prohibited concepts.

 

These bills, and more like them, are tracked in PEN America’s Index of Educational Gag Orders.

Six Dangerous Bills That Would Censor Speech on Campuses Across the Country

By: Sam LaFrance

February 7, 2024

It has been a tumultuous few months for higher ed. Responding to low public trust, raucous protest, and rising incidents of both antisemitism and Islamophobia on campus, legislators are doubling down on their yearslong campaign to destabilize academia, censor college classrooms, and wear down the safeguards that help protect academic freedom. 

Here are six terrible higher education bills we’re tracking right now, including one that has already become law:

Utah’s Anti-DEI Law 

Utah’s newly signed HB 261 bans diversity, equity, and inclusion initiatives in public colleges and universities, even though the state’s higher education commissioner testified that the bill’s fast-tracked journey through the legislature hadn’t left him enough time to thoroughly review the language. 

Among other provisions, the bill prohibits mandatory DEI trainings, or even using the term “diversity, equity, and inclusion” in an official capacity – it requires any current DEI efforts to rebrand to “student success and support.” The law also mandates that institutions remain neutral on a broad swath of specific concepts, including “critical race theory” and “bias.” This vague clause means that the promotion of a faculty member’s new book on critical race theory or research into workplace bias could be construed to violate this provision.

Similar provisions will be enacted at the K-12 level.

Florida Takes Stop WOKE to Teachers

Florida’s SB 1372 is an educational gag order that would prohibit a laundry list of concepts from being taught in teacher education programs at both public and private universities – jeopardizing the integrity of higher education and the quality of K-12 instruction. Professors would be prohibited from teaching future K-12 teachers anything related to “systemic racism” or “identity politics” — concepts that are not defined in the bill. Similarly banned are any of the concepts in the Stop WOKE Act, which was enjoined by a federal judge due to its intrusions on First Amendment rights. 

This means that not only is the academic freedom of professors in teacher preparation programs being trampled upon, but that a critical piece of the pipeline for creating K-12 teachers will now include ideological dictates from the state. Future elementary and high school teachers who cannot learn how to discuss race, gender, or related topics will be unable to teach future students how to do the same. 

PEN America has submitted a letter to the legislature objecting to this bill on the grounds that it would infringe upon academic freedom and endanger the quality of K-12 education in one fell swoop. 

Florida Chills Political Speech on Campus

Elsewhere in Florida, students are the target of two new measures, SB 470 and its companion bill HB 465, which would deprive any student who “promotes” a federally recognized foreign terrorist organization of in-state tuition and state financial aid. Though the bill specifies that it includes all terrorist groups designated by the State Department, it also singles out both Hamas and Palestine Islamic Jihad.

The bill follows efforts by the Florida Department of Education to ban the student group Students for Justice in Palestine (SJP) on state campuses on the basis that the group provided “material support” to Hamas. That claim was based on the content of a “toolkit” issued by National SJP calling the deadly October 7 Hamas attack on Israel a “historic win” and stating that “We as Palestinian students in exile are PART of this movement, not in solidarity with this movement.” – written statements that do not meet the definition of “material support” under state or federal law.

The new bills suffer from similarly fatal flaws. The expression of ideas that are disturbing, hateful, extreme — or even offering verbal support for violence or terrorism — are protected under the First Amendment. The bill contains no definition  of “promotion,” nor how to distinguish it from other protected forms of expression, be it academic, artistic, or political. This vague provision could discourage research inquiries, chill class discussions, and shrink the boundaries of artistic freedom out of fear that speech might be viewed as promoting opinions shared by terrorist groups. What it means to “promote” a terrorist organization would become subject to ambiguous interpretation and enforcement that threatens constitutionally protected speech. Amid robust political debate on campuses over the Israel-Hamas war, the bills risk chilling the speech of pro-Palestinian voices, forming part of a pattern PEN America has documented elsewhere.

The bill also includes new threats of immigration enforcement for students on an F-1 visa who “promote” terrorist groups. However, the federal Immigration and Naturalization Act already provides that individuals can be disqualified from student visas or have their visa revoked if they “endorse or espouse” terror activity, and these federal restrictions must be enforced in ways that do not infringe on First Amendment freedoms. Florida’s effort to supplant those clear, enumerated legal definitions with vague prohibitions concerning the “promotion” of terrorism are both needless and risk chilling the expression of visa-holding students. 

Iowa’s War on ‘Terrorism’

Florida is not alone in seeking to expand the bounds of existing law in ways that infringe on speech rights. Iowa legislators are considering a similar bill, HF 2077, that would require public colleges and universities to deny recognition to any student group for its “endorsement or promotion” of either terrorism or a specific action of a foreign terrorist group. The measure is even vaguer than Florida SB 470, punishing not just the promotion of specific terrorist organizations but the concept of “terrorism” itself – which the bill leaves up to interpretation. It would also make individual students found guilty of violating the law ineligible for state financial aid. As in Florida, relying on nebulous definitions that clearly encompass speech, it would threaten the free expression and exchange of ideas protected by the First Amendment, and as in Florida, it seems motivated by a desire to censor pro-Palestinian speech. 

Remarkably, this bill also applies to private institutions by targeting students’ ability to receive tuition equalization grants from the state, and the entire bill is enforceable by the state Attorney General. This escalation would imperil the free speech rights of students even at private schools, which generally have far more latitude to make their own speech policies than public universities do. 

Oklahoma Opts Out of Race and Gender Discussions

Were Oklahoma SB 1305 to become law, college students in Oklahoma could not be required to take any class that teaches them anything about whiteness, gender identity, implicit bias, intersectionality, cultural competence, critical theory, systemic racism, allyship, race- or gender-based diversity, equity, or inclusion, microaggressions, or social justice. 

If a course is interpreted to include those concepts, or if a professor wishes to curate materials based on the race or gender of the author (in a course about Black literature or women in film, for example), then the course would not be eligible to be taken for general education credit. Such requirements would effectively prohibit well-rounded general education offerings, weakening enrollments in excluded departments and limiting the range of ideas available to every student.

The breadth of topics that would be rendered off limits is almost as shocking as the disclaimer at the end of the bill, which says that the intent of this bill is not to infringe on the academic freedom of faculty. 

Indiana Watches for Diversity and ‘Divisive Concepts’

Indiana legislators have also taken a hint from school boards across the country, opting to mandate “transparency” in a bid to root out critical race theory from curriculum in public higher ed. SB 191 would require universities to post all syllabi, reading lists, assignments, and final grades online, specifically “in order to assess the extent to which a divisive concept may have been included or has otherwise affected curriculum.” 

The bill would also prohibit mandatory diversity trainings, and it would even bar administrations from paying for any travel to conferences, subscriptions to journals, or entry fee for programs that endorse or promote “divisive concepts,” hamstringing departments’ ability to support students and faculty in their academic pursuits. The bill could be used to gut higher education in Indiana, preventing grad students from presenting their research to peers and mentors, turbocharging online abuse of professors, and adding unfunded administrative burdens via costly website mandates. A fiscal note attached to the bill acknowledges that universities “will experience short- and long-term workload increases as a result of this bill,” making it effectively an unfunded mandate.

 

These bills, and more like them, are tracked in PEN America’s Index of Educational Gag Orders.

‘Parental Rights’ in Wisconsin | WI AB 510

By: Sam LaFrance

January 24, 2024

Wisconsin’s AB 510, which passed the state assembly last week, claims to advance “parental rights” in public schools – but it actually advances a much more censorial agenda. 

While most of the bill restates existing federal law protecting the rights of students and parents, one section goes much further. If this bill were to become law, school districts would be required to notify parents in advance of any “controversial subject” before it is taught or discussed in the classroom. And the drafters of the bill were gracious enough to define what exactly a controversial subject is: “a subject of substantial public debate, disagreement, or disapproval and includes instruction about gender identity, sexual orientation, racial identity, structural, systemic, or institutional racism, or content that is not age-appropriate.”

This clause and its litany of vaguely defined concepts is a sure recipe for censorship. Combined with an accompanying requirement that parents be able to opt their children out of any material that goes against their “religion or personal conviction,” it’s easy to see how this bill will impede public education in the state – not support it. 

We’ve already seen how a law that requires advance notification for vague categories of curricular topics has facilitated self-censorship in other states. Take Montana, for example, where teachers are required to notify parents of any content related to “human sexuality.” The law text is so vague about what this means that superintendents have told teachers that advance notice would be required for The Great Gatsby in English class and in some “units of study regarding civil rights or current events” in History class; the same letter from the superintendent suggests that art and theater classes “might have performances or products that have related themes.” In other words, even the schools aren’t sure what counts. 

In Tennessee, a similar law was used last year to pressure a librarian to cancel a Mother’s Day class about children from families without mothers. Advance notification was used not to opt a specific student out, but to lobby to get a lesson canceled for all.

In such an environment, the only way a teacher could avoid being buried by permission slips or thrown in hot water for accidentally referring to racial or sexual identities offhand is to avoid talking about those subjects at all.