State Lawmakers Can't Ban Critical Race Theory on College Campuses
State legislatures have leeway to regulate K-12 curriculum, but attempting the same on college campuses is a violation of academic freedom.
Legislators in at least 10 states have introduced bills to regulate speech by professors on college campuses, according to a recent report by the Foundation for Individual Rights in Education (FIRE).
Bills introduced in Alabama, Florida, Indiana, Iowa, Kentucky, Missouri, New Hampshire, New York, Oklahoma, and South Carolina "contain unconstitutional bans on what can be taught in college classrooms," writes FIRE's Joe Cohn, who adds that "they must not be enacted in their current form."
While legislators have "broader (but not unlimited) authority to set K-12 curriculum," Cohn writes, "the First Amendment and the principles of academic freedom prevent the government from banning ideas from collegiate classrooms."
Iowa's House File 222 and Oklahoma's House Bill 2988 would reduce state funding to public universities that teach American history with the use of The 1619 Project, a controversial collection of essays that attempts to "reframe the country's history by placing the consequences of slavery and the contributions of black Americans at the very center of the United States' national narrative," John McWhorter wrote for Reason.
"The general assembly has a strong interest in promoting an accurate account of this nation's history through public schools and forming young people into knowledgeable and patriotic citizens," H.F. 222 reads.
Although Oklahoma already passed a bill that regulated speech regarding race and gender in educational settings in 2021, Rep. Jim Olsen (R–Roland) claims that it wasn't as effective as intended. "I think one thing that we learned in that bill, is that we didn't have any teeth to it," he said to ABC News (KTUL)
Schools in Oklahoma that include The 1619 Project in the curriculum would face up to a 10 percent reduction in state funding.
In a move similar to Oklahoma, South Carolina's state legislature wants to ban teaching "any of the tenets" of critical race theory in colleges. The bill, H4799, would also ban the use of The 1619 Project in teaching.
Alabama's House Bill 11 would prohibit colleges from teaching certain concepts regarding race or sex, such as critical race theory. "This bill would also require public K-12 schools and public institutions of higher education to terminate the employment of any employees who violate its provisions," the legislation reads.
Kentucky Republicans introduced House Bill 18 on January 4. The bill prohibits "classroom instruction or discussion that promotes designated concepts related to race, sex, and religion." H.B. 18 extends the regulation of race-related concepts to higher education that was originally restricted to K-12 in House Bill 14.
"It has been decades since there was any question that government bans on what can be taught in college classes are unconstitutional," FIRE's Cohn writes. He points to the landmark 1957 case of Sweezy v. New Hampshire, in which the Supreme Court affirmed the right of academic freedom in higher education.
"To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation," the opinion reads. "No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust."
While there are numerous reasons to not treat The 1619 Project as a stand-alone source for American history, students do not need to be protected from its ideas. Academia is, in fact, an ideal setting to engage critically with its claims. As for "promoting an accurate account of this nation's history," as Iowa's bill and several others claim to do, that requires acknowledging and respecting the constitutional protections afforded to speakers on college campuses.