The Volokh Conspiracy
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Indiana Bill Would Mandate "Intellectual Diversity" in the Classroom
This approach to doing so poses serious academic freedom problems
I think universities have a serious "intellectual diversity" problem, but a proposed bill introduced into the Indiana state legislature is not a good approach to trying to address that problem and would create significant academic freedom problems. You can find my take on this problem here.
Indiana Senate Bill 202 is discussed here. The state senator sponsoring the bill is a former aide to Mitch Daniels when Daniels served as the president of Purdue University. He hopes the bill would help change perceptions about American higher education among conservatives, but I'm skeptical that this bill would help much in changing those perceptions and I don't think it would make much progress in addressing the underlying concerns that conservatives have. The text of the bill can be found here.
The bill (ch. 2, sec. 1(b)(1)) directs the regents to develop a policy to block tenure of professors who are "unlikely to foster a culture of free inquiry." I think this is actually quite interesting and raises difficult questions. I'm not enthused about trying to do it through board policy, however. Could universities under this rule hire a professor who subscribed to various postmodern views about free speech or agreed with Marcuse on the need for "repressive tolerance"? Could universities hire professors with various views derived from critical race theory about the need to suppress certain ideas in the public sphere and in the universities specifically? Could universities hire conservative faculty who agree with Christopher Rufo and others about the need to weed out campus radicals and dispense with what they might characterize as luxury disciplines like women's studies? Perhaps not. There are classic problems regarding whether we must tolerate the intolerant, and universities do need to resist being captured by those who are hostile to their core mission of free inquiry and the neutral pursuit of the truth and the advancement of knowledge. But this kind of blanket ban is unlikely to have good effects.
Much more serious is sec. 1(b)(2) which would block tenure of those unlikely to expose students to works from "a variety of political or ideological frameworks."
Sec. 1. (a) This section applies to an institution that grants tenure or promotions to faculty members.
(b) Each board of trustees of an institution shall establish a policy that provides that a faculty member may not be granted tenure or a promotion by the institution if, based on past performance or other determination by the board of trustees, the faculty member is:
(1) unlikely to foster a culture of free inquiry, free expression, and intellectual diversity within the institution;
(2) unlikely to expose students to scholarly works from a variety of political or ideological frameworks that may exist within and are applicable to the faculty member's academic discipline; or
(3) likely, while performing teaching or mentoring duties within the scope of the faculty member's employment, to subject students to political or ideological views and opinions that are unrelated to the faculty member's academic discipline or assigned course of instruction.
What counts as a "variety"? Why is necessary that individual professors provide that variety? I can teach a class on "originalism and its critics," but I cannot teach a class on "originalism?" Do I get "variety" in my originalism class if I teach Rappaport, Baude, Barnett, Balkin and Whittington? Presumably not, but why exactly and who decides?
Sec. 1(b)(3) prohibits subjecting students to political views in teaching unrelated to subject matter of class. On the whole, good. But hair trigger and severe penalties could be wind up hampering teaching.
Sec. 2(a) would incorporate the same into a system of 5-year post tenure reviews. Sec. 2(c) would protect "expressing dissent" or criticizing the administration or outside political activity from retaliation during the post-tenure review, which is interesting. Not sure this is the best place to secure that kind of protection, and might not be terribly effective at doing the job.
Unsurprisingly, sec. 4 would create a system for taking student complaints about faculty performance on this "intellectual diversity" requirement. Systems of surveillance of classroom speech by university administrators leveraging student complaints is a sure path to chilling free inquiry in the classroom and punishing professors who become controversial or an annoyance to the administration.
The bill has other features on diversity statements and institutional neutrality, which I think are mostly good but won't get into the details here. As written in the bill, the whole process could be entirely within the board of trustees -- no faculty or administration involved at all. Likely not how it would play out in practice, but not how you would want to structure such a process.
I appreciate the instinct here, but this is not the way. It will encourage political witch hunts of faculty, and it invites inappropriate trustee intervention into teaching in unjustified ways. Sec. 1(b)(2) is a big problem and more difficulties flow from it. Intellectual diversity on campus is not going to be achieved through mandates to faculty about how they must teach their classes. Ultimately, free inquiry will depend on the composition and professional norms of the faculty.
