The Volokh Conspiracy
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State "Higher Ed Reform" Roundup: Tennessee
How bad is that divisive concepts bill?
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 and Ohio in earlier posts.
Next up is Tennessee. The Tennessee state legislature has just passed the "Tennessee Higher Education Freedom of Expression and Transparency Act," and it is now awaiting the governor's signature. The new bill builds on a divisive concepts law that was enacted in 2022. Especially in the aftermath of the "Tennessee Three" expulsion fracas, commentators have pulled out the rhetorical stops in denouncing the new bill.
I know that this will come as a shock, but most of the things you will read on Twitter about this bill are wrong. Some parts of this bill and its 2022 predecessor are not particularly good, or even useful, but the consequences of adopting it have been greatly exaggerated. And some parts of both the new bill and the existing law are actually pretty good.
The original version of this bill was contained in SB 817 and HB 1376, and these bills generated some news coverage and controversy when they were first introduced. Late in the process, however, an amendment in the form of SA 378 was approved on the Senate floor and the resulting bill was adopted by the House. SA 378 was a complete replacement of the original text of the bill. So what does SA 378 do?
The bill requires state universities to restrict themselves to time, place and manner regulations only in regard to lawful and peaceful student group activities and speakers invited by those groups. The university may not disfavor speakers based on the content of their views or threats of disruption targeting them. This provision mostly reemphasizes the terms of the Campus Free Speech Protection Act adopted in 2019.
The bill bans requirements for a "diversity statement" from those who apply for jobs or admission at state universities.
It prohibits the use of state funds to support any organization that "requires an individual" "to endorse or promote a divisive concept." Note that this does not bar individuals from joining organizations or participating in activities where they might choose to endorse or promote such concepts. I do not know in practice how many organizations might "require" individuals associating with it to endorse such views. I suspect not many.
Unlike the bills moving through many other state legislatures, this bill does not abolish diversity, equity and inclusion offices. Rather it requires that any campus DEI work "strengthen and increase intellectual diversity and promote a climate that facilitates the free and respectful exchange of ideas" and requires that such administrators must "include efforts devoted to supporting student academic achievement and workforce readiness." I'm skeptical of how well this will be implemented, but in principle it is hard to complain in good faith about such a requirement.
This brings us to the part of the bill has received the most attention, the restriction on divisive concepts. This is what the bill says:
A student or employee of a public institution of higher education who believes that a violation of § 49-7-1903 has occurred may file a report of the alleged violation with the institution. The institution shall investigate the report and take appropriate steps to correct any violation that is found to have occurred. Institutions shall report violations and any corrective action annually to the comptroller of the treasury through the comptroller's office of research and education accountability. A report submitted to the comptroller must be redacted, if necessary, to ensure compliance with the federal Family Educational Rights and Privacy Act.
That's it. Section 49-7-1903 is the divisive concepts law enacted last year. This bill does nothing more than add a reporting system for possible violations of existing law. This is not worthy of so much as a tweet, let alone a tweet storm.
The original version of the bill had much more robust enforcement mechanisms regarding divisive concepts in higher education in the state, but the bill as adopted simply does not.
If there are complaints worth making, the complaints are better directed at the existing divisive concepts law. Tennessee already applied divisive concepts restrictions to higher education, and the new bill does nothing new in that regard. The existing law mandates that
A student or employee of a public institution of higher education shall not be penalized, discriminated against, or receive any adverse treatment due to the student's or employee's refusal to support, believe, endorse, embrace, confess, act upon, or otherwise assent to one (1) or more divisive concepts
and it already specifies that
A student or employee of a public institution of higher education shall not be required to endorse a specific ideology or political viewpoint to be eligible for hiring, tenure, promotion, or graduation, and institutions shall not ask the ideological or political viewpoint of a student, job applicant, job candidate, or candidate for promotion or tenure
In addition, state universities may not require students or employees to participate in training that includes divisive concepts and may not "incentivize" a faculty member to incorporate such concepts into the academic curriculum. The law specifies that it should not be interpreted to infringe on the academic freedom of faculty nor prohibit DEI activities that are compatible with this restriction. The list of divisive concepts is included in § 49-7-1902 and covers familiar ground.
As divisive concepts bills go, this is very modest. Unlike Florida's Stop WOKE Act, for example, it does nothing to restrict ideas or viewpoints that faculty might advocate or promote in the classroom. The only restriction on what professors might do is that they may not penalize students that refuse to "support, believe, endorse [or] embrace" those viewpoints. Students can be exposed to such ideas. They can be required to read materials or listen to speakers that advocate such ideas. They can be required to accurately understand, explain and describe such ideas.
Frankly, there is not much to complain about from an academic freedom perspective in either the new bill or the existing law in Tennessee. The new bill does not in fact do what the headline of a state news story claimed, "TN bill that allows students to report professors who teach 'divisive concepts' passes House and Senate." Nor does it bar schools from "teach[ing] about social, cultural and legal issues related to race and racism" as the body of that news article claimed. It does not "suppress the teaching of race and history" as the Daily Beast claimed. One of the recently expelled legislators declared, "This sounds like fascism." It does not, in fact, sound like fascism. Mediaite asserted that the bill "prohibit[s] teaching of how race has shaped public policy in America." It does not. Nor does the existing law "prohibit[] the use of 'divisive concepts' in college classrooms."
Sometimes people should actually read the bills.
