The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This episode of the podcast features my conversation with David French, the former president of the Foundation for Individual Rights in Education (FIRE) and current senior editor at The Dispatch. We talk about his experience in the trenches defending free speech on college campuses, the growing hostility to liberal values in some segments of the American right, and recent legislative efforts to ban "divisive concepts" and "critical race theory" in American schools, including state universities.
From the podcast, on the difference between students and professors in free speech controversies:
We had a lot of professor inquiries, but very few professors willing to sort of make a public stand. So the students were much more willing to sort of like saddle up and go to battle against their university. And the professors were much less willing. There were there was more than one instance where I would talk to a professor who'd be in there and they would have tenure. But they would be in their office and they would be talking to me in hushed tones, lest anyone overhear them. And this is, again, going back 15 years. And so we did have some professor litigation, including what I think is either the first or one of the first cases where we actually won a jury trial on behalf of a professor who had been denied a promotion because of his political point of view. And that was Mike Adams sadly committed suicide during the pandemic. And that case was- you know, it's understandable why people would have reluctance to challenge their school. He won. He won. He got his promotion. He got all of the back pay that he was due. You know, he was vindicated. But the whole process also took seven years. So that's a hard, hard thing to endure when you're when your professional reputation in your professional, in your peer relationships are on the line.
On recent state legislative efforts to ban "critical race theory" in schools:
You will see young kids in a public school system in this state or this city being taught some pretty outrageous stuff about race. You know, you'll see some diversity, DEI diversity, equity, inclusion training programs that are almost like a caricature of critical race theory that will place people into racial affinity groups that will, you know, put people on privileged walks. I mean, these things actually exist. And many of them are so, actually so outrageous as to, in all likelihood, violate civil rights law by being racially discriminatory. But there's been little sense of how widespread it is. For example, how much does it actually exist in your own local school?
And so there was there was a rush to try to ban critical race theory. And so because critical race theory is such a slippery concept to define concisely, it's got a lot of different branches, a lot of different scholars, a lot of the scholars will argue with each other. They instead began to ban the not just the advocacy of certain specific concepts, but the inclusion of these concepts in courses in some of the concepts. So the concept it might be the idea that one race is inherently superior to another, which is a concept that, if taught in class, would violate civil rights law. Right. But it began to be these concepts. There were a variety of these concepts that were attempted that that schools attempted or legislatures attempted to ban. And that the breadth and the vagueness of these statutes began to be very, very concerning, they weren't just replicating the requirements of civil rights law, for example, they weren't just replicating the requirements of the First Amendment, which prohibits, for example, compelled speech. They were going way beyond that.
And they were both under inclusive and overinclusive. They were under inclusive in the sense that they weren't banning critical race theory. They weren't. But they were overinclusive in that they were banning kinds of conversations and an instruction that even the legislators themselves would say we didn't intend to ban. And so they were very sloppily written. They would have a profound, chilling effect and wouldn't even accomplish the goal that they were drafted to accomplish. Other than that, they were fine.