The Volokh Conspiracy

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Campus Free Speech

Academic Freedom and the Critical Race Theory Legislation

Regardless of what one thinks about CRT, legislators should not try to suppress ideas in academia


Areo, the online culture and politics journal, is currently highlighting issues of free speech and intellectual freedom. I have a new piece there on the current wave of Republican-led legislative efforts to ban "critical race theory" from schools.

I have little doubt that there are many pernicious ideas and practices currently being peddled in workplaces and schools across the country under the broad rubric of diversity, equity and inclusion. Inside Higher Ed has a report just today about an example of "diversity training" at Stanford University that might well run afoul of existing civil rights laws. Organizations that subject their members to such toxic requirements deserve all the litigation and bad publicity that they have coming to them.

Unsurprisingly, when voters are annoyed by such bad behavior, someone starts to think that there ought to be a law and politicians see an opportunity. In this context, that has resulted in a lot of ham-handed legislative proposals, some of which have already found their way into law. In the K-12 context, there are inescapable political debates to be had about what ought to be taught in public schools and how. We are not having a very well informed or intelligent debate about that now, but a debate there will be.

When it comes to universities, things are different. The principle of academic freedom insists that scholars, not politicians, should determine the curriculum, teaching, and programming in higher education. The kind of clumsy legislation currently being discussed in state legislatures will have broad chilling effects in state universities and will undermine the educational goals of those institutions.

What academics mean by "critical race theory" is not the same thing as what politicians currently mean by "critical race theory," and so the public discourse involves a lot of people talking past one another. But it is precisely because politicians rarely understand the details or merits of academic literatures that we should not want them adopting sweeping laws that implicate how universities conduct their scholarly business. If conservative politicians are mad about Robin DiAngelo, they should not respond by passing laws that make it legally risky to teach W.E.B. Du Bois.

From the piece:

It might be possible to construe these legislative measures very narrowly. They could be limited to prohibiting mandatory participation in the kind of self-flagellating confessional diversity "training" that has become all too common at workplaces across the country. They could be restricted to barring compelled political speech under the guise of anti-racism pledges or preventing governmental institutions from endorsing racial hierarchies and sending the message that some Americans are second-class citizens. If university professors are indoctrinating rather than teaching, such misbehaviour can be addressed regardless of the content of the indoctrination. If universities are disadvantaging students on the basis of their race, that can be remedied through existing civil rights laws.

But the state laws have not been carefully written. University administrators will not be willing to gamble their institutional budgets on the possibility that such laws will be read narrowly rather than broadly. Syllabi will be censored. Classes will be cancelled. Public speakers will be disinvited. It is hard to escape the suspicion that such chilling effects are precisely what is intended.

You can read the whole thing at Areo.