The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Academic Freedom

State "Higher Ed Reform" Roundup: Ohio

All eggs are in one basket in Ohio


Republican state legislatures across the country are debating significant reforms in state university systems. Some of the reform proposals are fairly modest, but others would substantially transform how higher education work in public universities. In several instances, those bills are now moving toward some resolution, and so a series of posts checking in on where things stand seems in order. I discussed North Dakota and Texas in earlier posts. Texas is still very much in play, but North Dakota appears to be done for now.

Next up is Ohio. The chairman of the Senate Workforce and Higher Education Committee in Ohio is pushing a single reform bill, Senate Bill 83. It enjoys the support of the National Association of Scholars and the American Council of Trustees and Alumni. SB 83 currently sits in Senate committee. The "Ohio Higher Education Enhancement Act" bundles a variety of proposals into a single legislative package. It is more sweeping than the proposals in some other states, but also generally less intrusive into the scholarly work on state university campuses.

Unusually for the current wave of Republican state higher ed proposals, SB 83 does have some components aimed at private universities. The bill would prohibit any state funds being distributed to private universities unless they also complied with a number of new restrictions being proposed for state universities, including the elimination of DEI training, the elimination of "political or ideological litmus tests in hiring or promotion," and commitment to free speech policies. The limit on state funding would not apply to student financial aid.

The bill would require the development of a training program for incoming members of the boards of trustees of state institutions. This seems like a good addition, though I am surprised that in the long list of things to be included in the program there is nothing on academic freedom or freedom of speech. Trustees need to be educated on the distinctive intellectual climate of the universities that they oversee.

The bill requires that course syllabi be formatted in a particular way and made available and searchable on a website. This requirement would also extend to private universities accepting state funds. This is clearly designed to provide greater transparency regarding course content to outside activists. The benefit to students is likely to be modest, though the bill does require some content that most instructors would probably not naturally include in their syllabi (biographical information about the instructor? description of the subject matter of each lecture?). On the whole, such transparency requirements will probably just encourage the harassment of faculty, but professors should be willing to share their course syllabi and justify what they choose to teach in their courses. That should especially be true at state universities.

The bill requires that each state institution incorporate into their mission statements a series of what might be characterized as free inquiry affirmations. It also requires that state universities commit to an institutional neutrality principle in regard to social and political controversies, prohibit divestment and boycotts, secure free speech, and adopt measures of intellectual diversity (that last one is interesting but the details are left to the campus).  That section of the bill also includes the following:

Affirm and guarantee that faculty and staff shall allow and encourage students to reach their own conclusions about all controversial matters and shall not seek to inculcate any social, political, or religious point of view

In principle this seems unobjectionable, but the implementation and enforcement could be quite problematic. Hard to know what it might mean to allow student "to reach their own conclusions" and for a professor "not to seek to inculcate any social" or political point of view. If I teach a class in normative political theory oriented around a set of arguments that liberal democracy is preferable to autocracy, have I sought to inculcate a view? Would I be saved from such an accusation if I included in the readings critics of liberal democracy, or does it matter what I say in class or how I write the tests? Am I failing to "encourage students to reach their own conclusions" if I teach a class on free speech organized around a favorable view of the American constitutional practice? If I am teaching a biology class and show why all the evidence indicates that the mRNA vaccines are safe and effective or demonstrate the significance of natural selection, have I failed to allow and encourage students to reach their own conclusions?

The bill prohibits the use of diversity statements and the like (huzzah!). It also requires that universities "seek out intellectual diversity in invited speakers," as well as imposes transparency requirements on invited speakers. Seems like an admirable goal, but again the implementation is likely to cause all kinds of problems. Does this include, for example, speakers in departmental workshops? If 95% of the speakers invited to share their research in the political science department are reliable Democratic voters but their talks are about their ordinary scholarship in political science, does the university need to score that on some intellectual diversity metric and if so, how?

Requires that undergraduates take a class in American government or history that includes coverage of a specific set of materials (Gettysburg Address, Constitution, Letter from a Birmingham Jail, etc.). Hey, I've got a text that would be super for such a class!

It includes a workload requirement for faculty, with some yet to be specified accounting for teaching, research, and administrative work. Universities much include in student course evaluations a question about whether the instructor teaches a course free of bias. What could go wrong with asking that?

Adopts a post-tenure review system that builds on annual performance evaluations. Professors can lose tenure and be terminated for persistent poor performance as assessed by the department chair. The final say on any post-tenure review process would rest in a committee of the board of trustees.

It imposes a series of restrictions on relationship between state universities and Chinese institutions.

It eliminates affirmative action and prohibits training that includes a standard list of divisive concepts.

It prohibits strikes by public employees, including state university employees.

SB 83 is quite the grab bag. It is more modest than the proposals being considered in some other states. No elimination of tenure. No restriction on teaching "critical race theory." Critics have been quick to jump to the claim that the bill "censors" professors and is a "gag order," but that rhetoric seems overwrought. Some of the proposals would undoubtedly create implementation problems that would interfere with academic freedom, but there is room for some relatively modest revisions to the current bill that would alleviate those concerns.