The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Florida Gov signs law requiring students, faculty be asked to declare their political beliefs," blares a headline from The Hill. A story on the same legislation in the Tampa Bay Times has the header: "State university faculty, students to be surveyed on beliefs," with the subhed: "Gov. Ron DeSantis suggested that budget cuts could be looming if universities and colleges are found to be "indoctrinating" students." Will Stancil warned the law represents "a government-led crackdown on college thoughtcrime." It all sounds scary, but is this what the law does?
As always when talking about statutes, it helps to read the bill. Here is the text. The relevant provisions read as follows:
(b) The State Board of Education shall require each Florida College System institution to conduct an annual assessment of the intellectual freedom and viewpoint diversity at that institution. The State Board of Education shall select or create an objective, nonpartisan, and statistically valid survey to be used by each institution which considers the extent to which competing ideas and perspectives are presented and members of the college community, including students, faculty, and staff, feel free to express their beliefs and viewpoints on campus and in the classroom. The State Board of Education shall annually compile and publish the assessments by September 1 of each year, beginning on September 1, 2022. The State Board of Education may adopt rules to implement this paragraph.
(c) The State Board of Education may not shield students, faculty, or staff at Florida College System institutions from free speech protected under the First Amendment to the United States Constitution, Art. I of the State Constitution, or s. 1004.097.
The bill also provides these definitions:
1. "Intellectual freedom and viewpoint diversity" means the exposure of students, faculty, and staff to, and the encouragement of their exploration of, a variety of ideological and political perspectives.
2. "Shield" means to limit students', faculty members', or staff members' access to, or observation of, ideas and opinions that they may find uncomfortable, unwelcome, disagreeable, or offensive.
Parallel provisions apply to the Board of Governors of state universities.
As the above text makes clear, the required survey is not a survey of the political beliefs of students and faculty. Rather, the survey is to measure "the extent to which competing ideas and perspectives are presented," and the extent to which "members of the college community, including students, faculty, and staff, feel free to express their beliefs and viewpoints on campus and in the classroom." It does not ask student, faculty and staff what their viewpoints are, but whether they feel free to express their viewpoints, whatever they may be. It is a survey about the academic environment, not the political beliefs of members of the academic community.
What would such a survey look like? It would probably loo ka lot like the Heterodox Academy Campus Expression Survey that many college campuses have administered to diagnose the openness of their campuses to a broad range of viewpoints. This is a good survey that measures things that campus administrators should already care about. My university administered it. The results were informative, revealing, and helpful.
Might a survey include questions about respondents' backgrounds or perspectives for cross-tab purposes? Perhaps. Such information may be useful, insofar as it could identify whether members of minority racial, ethnic, or religious groups experience the educational environment differently, but that is not the focus or requirement of the law.
But what about the comments by Governor DeSantis and bill supporters suggesting the results might affect state funding? Should that be concerning? It depends. First, whatever politicians say they are doing, it is important to look at the law that is actually adopted, as it is the law that controls, not the press statements or variable intentions of individual politicians.
Second, like it or not, state institutions are just that, state institutions. Accordingly it is perfectly appropriate for the legislature to engage in oversight to ensure that such institutions are fulfilling their purposes and that taxpayer dollars are being spent appropriately. Surveys to determine whether educational institutions are, in fact, educating students and providing open learning environments are entirely consistent with such oversight. Indeed, such oversight is a good thing, provided it is just that–oversight, and not control. By this standard, this Florida law is a responsible measure, in contrast to the various "anti-CRT" measures some legislatures have adopted and political interventions at some universities to punish or exclude those with disfavored political viewpoints, as has reportedly occurred at the University of North Carolina.
If the surveys called for in this bill facilitate actual assaults on academic freedom, any such assaults should be condemned. But the problem in such instances would be the actual assaults on academic freedom, not the effort to determine whether state educational institutions actually provide open learning environments. In recent years we have seen political activists abuse open records laws to pursue academics they did not like. The problem in such cases was not the existence of open records laws, but their political misuse. The same would hold true here.
If a state university is not effectively educating students, is discriminating against some students, or otherwise failing in its educational mission, would it be wrong for the state government to take action? I don't think so. So long as the state does not take actions that compromise academic freedom, there is no problem with basic oversight and accountability for state institutions. (Private institutions, on the other hand, should be allowed to set their own policies and priorities, though any private university that does not protect and safeguard academic freedom betrays its mission as an institution of higher learning.)
Those warning about this legislation's threat to academic freedom also ignore that it expressly reaffirms and expands the First Amendment rights of professors and students, both in the prohibition on blocking access to ideas and materials protected by the First Amendment (noted above) and by amending the state law concerning protected expressive activities on campus, adding the language underlined to the existing provision of Florida law:
Expressive activities protected under the First Amendment to the United States Constitution and Art. I of the State Constitution include, but are not limited to, any lawful oral or written communication of ideas, including all forms of peaceful assembly, protests, and speeches; distributing literature; carrying signs; circulating petitions; faculty research, lectures, writings, and commentary, whether published or unpublished; and the recording and publication, including the Internet publication, of video or audio recorded in outdoor areas of campus.
Yeah, this legislation really sounds like a crackdown on academic freedom.
Not everything in this new legislation is welcome, however. One provision provides that "a student may record video or audio of class lectures for their own personal educational use, in connection with a complaint to the public institution of higher education where the recording was made, or as evidence in, or in preparation for, a criminal or civil proceeding. A recorded lecture may not be published without the consent of the lecturer." This is potentially problematic. On the one hand, I understand the importance of making class videos available to students for educational purposes, particularly those students who may have disabilities. Schools should find ways to accommodate these needs. (I have my classes recorded for this purpose and placed on a site only accessible to current students.)
On the other hand, class participants (students in particular) should not have to worry that everything they say and do in class may be recorded for posterity and potentially distributed. It is good that the provision does not allow publication without the consent of the lecturer, but what about other students who may be identifiable in the video? Should not their consent matter too? Insofar as education is a collaborative enterprise, students should not have to fear that their class participation may be recorded and distributed without their consent.
The bottom line is that headline writers and the Twitter commentariat have grossly misrepresented this legislation and pilloried what is actually a good idea: State governments ensuring that state institutions of higher learning provide open learning environments in which the full range of political and other views may be expressed. Indeed, it is unfortunate that some universities are not doing this already on their own accord, as they should recognize that providing such an environment is integral to their educational mission.
UPDATE: Joe Cohn of the Foundation for Individual Rights in Education (a fantastic group) comments on the legislation here.
I share his concerns about the video recording provisions more so than about the other provisions, and he spells out good reasons to be concerned about that part of the law. I am less moved by the rest.
Legislative language is never perfect, and holding state legislatures to a standard of absolute perfection when addressing higher education would effectively prevent state legislatures from exercising any oversight over state educational institutions (which are, after all, part of the state government). That is untenable. Insofar as there are concerns about the potential breadth of the definition of "shield," I do not think that language bars faculty members from maintaining order in the classroom or directing classroom discussion, but insofar as there is a risk there, I think this is the sort of concern that can be easily and adequately addressed through the implementing regulations that the law authorizes.