The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
President Donald Trump issued Executive Order 13950 on September 22, 2020, which prohibited federal workplace training programs that taught, advocated, or promoted any "divisive concepts." Since then, many proposals have been made in the states similarly to exclude divisive concepts, or what has sometimes been characterized as "critical race theory," in government workplace training and in public schools. More recently, such bans have also been contemplated for state colleges and universities. The most prominent of these was adopted by the Florida legislature in the "Stop W.O.K.E. Act" in 2022. The enforcement of that statute has now been enjoined as unconstitutional by a federal district court. I have discussed the problem with such legislation at some length.
We should be particularly wary of public officials imposing limitations on what ideas can be discussed inside the university. The temptation to abuse such a power in order to suppress ideas that incumbent politicians or transient majorities find threatening to their interests and sensibilities is far too great. Conservatives have rightly warned that campus speech codes are used to silence points of view that some members of the campus community did not like. Campus speech codes imposed by legislators or trustees should spark the same concern, even if the targeted speech is different. Repugnant ideas on a college campus should be challenged through criticism and debate, not through the tools of censorship.
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We should also worry about the precedent that such divisive concepts bans set for the future. If a legislature may ban students from hearing someone espouse the view that individuals should receive adverse treatment on the basis of their race or sex in order to advance equity goals or that ideas of merit can be oppressive, they could equally ban any number of other controversial social, political, philosophical, or scientific concepts from the university campus. A future legislature could just as well ban anyone on a state university campus from espousing the view that human life begins at conception or that mandatory vaccination policies are an affront to individual liberty or that free enterprise has been an engine of human progress. We protect a realm of free inquiry by insisting that university campuses should enjoy some degree of insulation from the political passions of the moment. We should not have to hope that enlightened politicians will tolerate the good kinds of ideas and suppress only the bad ones. We should leave the winnowing of good from bad ideas to the process of scholarly investigation and disputation and free and open classroom debate.