New State Laws Target Critical Race Theory in Higher Ed

Critical race theory bans have been a hot topic in K-12 education, and those policies have begun to seep into higher education in recent months.

Three of the four bills regulating so-called “divisive topics” in education signed into law in 2022 have impacted institutions of higher education, according to a database of these laws created and regularly updated by free speech advocacy group PEN America. Jeremy Young, senior manager of free expression and education at PEN America, told BestColleges that 26% of these bills introduced last year targeted higher education, but so far in 2022 nearly half of the introduced legislation regulates colleges and universities.

So while the focus was once on elementary, middle, and high school education, it has since shifted, Young said.

“Higher education is a main target,” he said. “It’s not just a throw-in.”

These divisive topics bills, which sprung from the movement against the teaching of critical race theory (CRT) in K-12 schools, all target different things.

There are, however, some commonalities and ways to group these bills, Young said.

Some bills ban professors from compelling students to affirm certain concepts and ideas related to race and sex, including the recently enacted Mississippi bill SB 2113. Young clarified that this isn’t something professors are in the habit of doing anyway, but these laws can have a chilling effect on faculty speech nonetheless.

The scarier version of these “educational gag orders,” he said, are laws that explicitly ban professors and lecturers from discussing certain topics. Generally, these forbid instructors from teaching that one race is superior to another — another problem not often seen in higher education — or teaching about inherent privilege and unconscious discrimination.

Topics like affirmative action and reparations may violate some of these laws, Young said.

HF 802 in Iowa, which was signed into law by the governor in June 2021, is an example of this type of regulation.

He added that some of these bills also state universities themselves cannot make distinctions according to race. These laws put diversity and inclusion training at risk, as well as student union groups dedicated to supporting racial minorities.

This policy type also includes HB 1775 in Oklahoma, which the governor enacted in May 2021.

Some of these bills don’t have stated punishments for violations, Young said. Many bills regarding divisive topics or CRT are uncharacteristically vague by legislative standards.

However, the most common form of stated punishment in these bills is the loss of state funding for institutions that violate the rules. Passed bills have stated that a school could lose a portion of its overall funding if it is found to have broken these laws. Some proposed bills, which failed to pass, said a school could lose all of its funding, he said.

Other bills empower students.

A divisive concepts bill signed into law in Tennessee on April 4 will allow a student to sue a school it believes violated this law. They may seek legal remedies through the court system.

An unintended consequence of these bills may be seen in accreditation.

The Higher Learning Commission, a national accrediting agency, signed a letter from the American Council on Education calling for free and open academic inquiry and debate on college campuses. The agency declined to comment on how these laws could impact accrediting but pointed BestColleges toward the agency’s standards for accreditation. One of those standards is as follows:

“The institution is committed to academic freedom and freedom of expression in the pursuit of truth in teaching and learning.”

Advanced placement courses could also be caught in the line of fire. The College Board, which proctors these college credit courses in high school, warned against censorship in a recent letter to teachers. These laws might impact courses like AP U.S. History and AP English Literature.

Not every CRT-related bill passes easily through Republican-controlled legislatures.

In Georgia, for example, two similar bills were presented in the legislature: One would only impact K-12 schools, and the other would include higher education institutions, too. Matthew Boedy, president of the Georgia chapter of the American Association of University Professors (AAUP), told BestColleges that lobbyists were able to successfully stall the bill aimed at colleges and universities. The K-12 bill ultimately passed.

It was anything but an easy process.

Boedy said he spoke with a high-ranking member of Georgia’s House of Representatives before the legislative session. His pleas, he felt, were not taken into consideration.

It was ultimately lobbyists from institutions and other higher education interest groups that stalled the bill, he said. Sen. Bo Hatchett, who introduced the bill, said he pulled it over questions about constitutionality, according to the Augusta Chronicle.

“It would be unconstitutional for us to apply that to higher education because of protections that professors have, so it would be very difficult to enforce with professors,” Hatchett said.

Young said the issue of constitutionality has come up in the past related to these bills, especially as it concerns higher education. While national and state policies are more flexible in how states can regulate K-12 schools, it’s always been the expectation that colleges and universities should be spaces of free speech.

“Colleges and universities are supposed to be the bedrock of open conversation in democracy,” he said.

It takes a lot to overturn a law on the basis of constitutionality, Young added. He pointed to Arizona law HB 2281 from 2010, which regulated courses at K-12 schools. The courts eventually struck down the law, but the process took seven years.

Boedy said advocates for divisive topics policies should expect professors to continue to fight against these bills in other states. He said they are virtually unanimous in their opposition to these attacks on academic freedom.

While he thinks Georgia’s colleges and universities are safe from similar bills for now, he’s not letting his guard down fully.

“This thing sort of came out of nowhere. We will always be worried about something like this happening again,” Boedy said. “These culture war issues pop up, and they have an energetic following, so they will push it as far as they can.”