"You need to get out!" Above, a First Amendment clash at the University of Missouri in 2015 when a faculty member sought to restrict a student photojournalist.
By Mark Hemingway, RealClearInvestigations
June 30, 2020
After leaving Evergreen State College in Olympia, Wash., in 2017 amid a clash with woke activists, progressive academic Bret Weinstein has often felt like a lonely voice on the left warning about the dangers of campus intolerance and unrest spilling out into the real world.
But now, with "cancel culture" on the rise as protesters nationwide tear down statues in the aftermath of the police killing of George Floyd, the biologist says he feels an uneasy sense of vindication -- and the tide turning.
“I’ve started to get calls in the last week or two – the people who mocked me and others … for making too much of what appeared to be college kids going wild on college campuses,” he said on the Joe Rogan podcast on June 18. “Some of them have started to call and say: ‘I got it wrong. What do we do now?’”
It turns out that a quiet counterrevolution is already underway.
In March of last year, President Trump issued an executive order making federal research funding contingent on universities having adequate free speech protections. At the state level, Texas last year became the 17th state since 2015 to enact legislation protecting First Amendment rights on campus. Currently, the conservative National Association of Scholars is working with four states – Missouri, Iowa, Kansas, and Arizona – to go further: pass laws to increase “intellectual diversity” at public universities.
South Dakota has already done so, and the law’s requirements amount to the most sweeping campus reforms in the country. It was triggered last year by a minor controversy over the stifling of a planned “Hawaiian Day” on one campus -- a last straw for critics of cultural hypersensitivity, which revived intellectual diversity legislation opposed by the state Board of Regents.
Under intellectual diversity laws, not only must dissenting views be tolerated, but college administrations are required to actively take steps (yet to be specified) to ensure that students are exposed to competing cultural and political viewpoints.
South Dakota’s law includes a number of new free speech protections on campus, explicitly safeguarding remarks deemed “offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical or wrong-headed.” The legislation also mandates that the Board of Regents produce annual reports for each campus that “(1) Sets forth all actions taken by each institution to promote and ensure intellectual diversity and the free exchange of ideas; and (2) Describes any events or occurrences that impeded intellectual diversity and the free exchange of ideas.” The legislation further defines “intellectual diversity” as “denot[ing] a learning environment that exposes students to and encourages exploration of a variety of ideological and political perspectives.”
Though South Dakota’s university system is small – with about 35,000 students in six colleges – the new requirements are sending shock waves through higher education. In March, the Chronicle of Higher Education framed them as a harbinger as lawmakers across the country "seek to set policy for public universities with an eye on reining in wayward politics.” Joan Wink, a member of South Dakota’s Board of Regents, said the legislature is trying to impose its own conservative ideology on campuses, telling the Chronicle that the law’s intellectual diversity mandates were “code speak” for hiring more “right-leaning, ideologically grounded” professors and administrators.
After it passed last year, four state legislators who sponsored it sent a letter to the board with suggestions on meeting the new “intellectual diversity” requirement. The letter urged the regents to “create hiring practices to ensure the composition of the faculty and administration reflects a broad range of ideological viewpoints." Among their recommendations were ongoing “surveys of the ideological viewpoints of the faculty, and the administrators with responsibility for the intellectual climate on campuses" in order to "measure progress toward intellectual diversity."
In an article in the Rapid City Journal, Elizabeth Skarin, the policy director for South Dakota’s ACLU chapter – which opposed the law – blasted the legislators for their approach to hiring. "To me, my brain immediately goes to blacklisting and McCarthyism and all of the problems when the government wants to keep lists of individuals' political ideologies," Skarin said. "I do not think that we want to get into a situation where discussion and debate is being monitored or being surveyed." Skarin later drafted a letter on behalf of the ACLU outlining its concerns about implementing the intellectual diversity requirement.
Patrick Garry, University of South Dakota law professor, disagrees with her. “There was a lot of immediate reaction from my colleagues across the country that this is a terrible infringement on freedom of speech and academic freedom,” Garry told RealClearInvestigations. “That's what prompted me to look at it and say, ‘No, I don't think it is an infringement on academic freedom.’” Garry, who also has a doctorate in constitutional history, is the author of the South Carolina Law Review article “When Legislatures Become the Ally of Academic Freedom.”
In it, he writes that protections for academic freedom established in the 1950s and ’60s are being honored in the breach today. A 2019 survey of 466 colleges by the Foundation for Individual Rights in Education (FIRE) found that 89% had speech codes that ran afoul of the First Amendment.
Garry’s article cites a study published in Econ Journal Watch that found Democrats outnumber Republicans 11.5 to 1 on higher education faculties – and that the ratio gets more dramatically skewed the younger the faculty; in departments "where politics may be more relevant, such as history"; and the greater the prestige of the university. More than a third of the 51 colleges surveyed in the study reported no Republicans on faculty at all.
Garry concludes that “political indoctrination is not a legitimate academic function and hence is undeserving of special constitutional protection. … [Campuses] have, in a way, become like the southern states under the Voting Rights Act. Those states were put under judicial supervision to make sure that voting rights were respected in those states,” Garry concludes. “Perhaps, as the South Dakota Legislature has recognized, universities may now have to be put under a kind of formalized public review process regarding their actions concerning free speech and academic freedom.”
Concern that South Dakota's campuses didn't reflect the state's more conservative politics and culture had been building for some time. The legislature first considered an academic reform bill in 2006, but repeatedly avoided legislation in favor of working with the Board of Regents. In 2018, at the behest of state Rep. Lee Qualm, the Board of Regents approved a new policy protecting free expression on campus.
The policy's language was strong, but it didn’t produce the desired results. A month before the reform law passed last year, a lawyer for FIRE told the Sioux Falls Argus Leader that “every university in the state currently has at least one unconstitutional speech code,” and legally questionable bans on funding religious and political student groups were still in place.
Sue Peterson, one of the state representatives who sponsored the bill, told RealClearInvestigations the Board of Regents’ lack of progress over such a long period of time left the legislature no choice but to act. “They did make some policy changes between 2018 and 2019 that were positive,” she said. “We still felt certain changes needed to be in statute because policies can change.” South Dakota Rep. Tina Mulally was even blunter. “I don’t believe the Board of Regents has been responsive to the taxpayers for decades,” she told the Chronicle of Higher Education. “I tried to have conversations with them when I became a representative, and I got the impression that they didn’t want to talk to me.”
The motivations for reining in campus radicalism aren’t just ideological. Legislators say radicalism is making their schools less attractive to prospective students. The University of Missouri, in one of the states currently considering intellectual diversity legislation, was rocked by violent protests in 2015 that caused such a steep enrollment drop that the university closed four dormitories, saw its credit rating downgraded, and created a budget shortfall of $32 million.
The current trend has roots in a 2014 statement by the privately run University of Chicago proclaiming its support for free speech in the wake of campus unrest -- a move since emulated by scores of private and public colleges. But such statements are non-binding. Current measures governing state schools have teeth.
Higher education critic Stanley Kurtz approvingly notes that Kansas’ intellectual diversity bill, introduced by the legislature in February, “instructs the public university system to stage debates, panels, and individual lectures that explore our most widely discussed public-policy controversies from diverse and conflicting perspectives.”
Though the National Association of Scholars and other groups are making detailed legislative recommendations on how to precisely measure and assess “intellectual diversity,” David Randall, director of research at NAS, acknowledged to RealClearInvestigations that achieving ideological balance is a challenge. “It's a real question – how do you translate a state [intellectual diversity] bill into operational practice?” he said.
But the legislative push for free speech and intellectual diversity on campus reflects “hunger and a momentum among the American people for reform,” he said, at a time when the results of academic radicalism are already widely evident in the culture at large.
“The entire idea is that higher education aims at creating activists who are out protesting on the streets,” Randall said of the campus atmosphere today. “I mean, look around – this is what’s happening.”
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