by Ashley Floyd Kuntz and Rebecca M. Taylor
The present moment is a baffling one for public colleges and universities. How can they protect academic freedom and tenure, respect freedom of speech, and maintain productive relationships with state legislatures? How can college and university leaders respond to legislative pressure to avoid “divisive concepts” while not infringing upon the academic freedom of faculty who research and teach about race, sex, gender, and other concepts being targeted as “divisive”? How can public universities prepare students to enter professions—especially teaching—in which these concepts are not only unavoidable but necessary?
The University of Florida (UF) is a prime example of the tensions playing out on campuses across the country. In November 2021, Chris Busey, an associate professor of teaching and learning, filed a union grievance alleging infringement of his academic freedom. The basis of his complaint? Being asked to excise the words “critical” and “race” from a proposed doctoral concentration called Critical Studies of Race, Ethnicity, and Culture in Education. Busey says college of education leaders and the associate provost advised faculty to rename the concentration to avoid irking Governor Ron DeSantis (R-FL) or running afoul of the state legislature.
That complaint is one of many raised in a 274-page report by the UF Faculty Senate Ad Hoc Committee on Academic Freedom. Six UF faculty members have sued the university. Four of the plaintiffs were denied permission to give expert testimony on controversial cases related to state election laws and COVID-19 mitigation measures in schools. Two plaintiffs, both law professors, argue the university’s policy for filing friend-of-the-court briefs is unconstitutional. UF denies any wrongdoing and says faculty violated conflict of interest laws.
These battles are the most recent iteration of a long history of politicized debate about higher education, in which universities are often maligned as liberal indoctrination mills hostile to conservative viewpoints. In recent years, state legislatures have applied pressure to higher education institutions to reduce this perceived liberal bias. In Florida, two such bills have been signed into law. The 2018 Campus Freedom of Expression Act eliminated “free speech zones” on public campuses and prohibited faculty, staff, and students from “materially disrupting” the free speech of others (e.g., shouting down a controversial speaker). Importantly, the bill also gave individuals the right to sue higher education institutions for violation of their freedom of expression rights. In June 2021, HB 233 was signed into law. It requires postsecondary institutions to conduct a yearly “Intellectual Freedom and Viewpoint Diversity Assessment” of faculty, staff, and students. Additionally, students are permitted to record video or audio of class sessions to be used in legal proceedings related to freedom of speech.
Now, less than a year later, Florida has passed HB 7, a bill targeting workplace training or classroom teaching about certain concepts related to race, gender, sexuality, and meritocracy. In a separate budget bill, the legislature stipulated that state universities in violation of HB 7 will be ineligible for performance based funding. Florida is expected to be the first among many states to pass “divisive concepts” legislation. What is interesting—ironic, even—is that many of the states that rushed to pass laws protecting viewpoint diversity just a few years ago now aim to codify limitations on teaching and expressing certain viewpoints. It is a challenge for universities to keep pace with both the volume of bills and their contradictory implications for academic freedom.
In a recent temporary ruling in favor of UF faculty plaintiffs, Judge Mark E. Walker of the US District Court for the Northern District of Florida had this to say about viewpoint diversity and academic freedom:
Consider the costs UF is willing to bear to maintain its power to discriminate based on viewpoint. It is willing to suffer threats to its accreditation, congressional inquiries, unrelenting bad press, an all-but-certain hit to rankings, and the substantial monetary cost of hiring an experienced D.C. firm to defend its policy. The only thing UF will not do, it seems, is amend its policy to make clear that it will never consider viewpoint in denying a request to testify.
Judge Walker’s opinion applies the language of viewpoint diversity to temporarily shield faculty—the very same language that legislatures in Florida and elsewhere used to pressure colleges and universities to be more accepting of controversial speakers and conservative viewpoints.
In our recent book Ethics in Higher Education: Promoting Equity and Inclusion Through Case-Based Inquiry, we take up the issue of intellectual, or viewpoint, diversity. We introduce a normative case study in which university leaders must respond to pressure from all sides—a state legislature pushing for greater ideological diversity among faculty, students angered over racial bias and violence, conservative groups arguing their voices are being silenced, and proposals for a new ethnic studies curriculum. We invited six commentators to offer their thoughts on ethical ways forward in this case and others like it.
In doing so, we hoped to create a space in which people who care about higher education could pause to consider the ethical issues at stake. In baffling times like these, we tend to get caught up in the legality of various actions. Faculty may wonder if the content they’re teaching crosses legal boundaries. College and university administrators may respond to new legislation with process reviews, cost analyses, and consultations with legal counsel. Legislators may lose sight of the core issue while posturing for constituents.
Case-based inquiry challenges us to pause and reflect. Whose voices may be getting lost in the shuffle in moments like these? What stakeholder needs aren’t being addressed? Which mission-driven core functions of the university are being delayed or derailed?
Recently, we sat down for a podcast conversation with Sigal Ben-Porath, professor of education at the University of Pennsylvania, and Laura Dinehart, dean of the school of education and human development at Florida International University, to discuss these issues further. They agreed that we are rapidly losing both capacity and opportunity for conversations about the issues that divide our communities and our country. They also emphasized an important core function of colleges and universities—preparing the next generation of teachers and further developing educational leaders.
Both expressed concern for the messages pre-service teachers are receiving as they watch one legal battle after another unfold and as they observe legislators seek to control their classrooms and the curriculum they will teach. Enrollment in teacher education programs is declining, and yet we all want skilled, caring teachers in the classroom with our children and youth. How can colleges and universities fulfill this core function in this context?
Answering that question leads us back to the faculty who train these teachers, principals, and superintendents—the very faculty who are sounding the alarm about academic freedom. These faculty know that conversations about “divisive concepts” are unavoidable, and in fact vital, in any educational setting. Our schools cannot tune out civic discord. Students have questions about the conflicts they see erupting on social media and the opinions their parents are expressing at home. Supporting students as they make sense of their world and preparing them for responsible citizenship demands attention to these issues. Teachers enter classrooms with students from many different backgrounds and perspectives. Thus, the faculty who train this next generation of public servants feel an ethical responsibility to prepare them as best they can to navigate an increasingly complex and contentious educational and civic landscape.
Where does this leave us? Are colleges and universities to safeguard viewpoint diversity? To limit the teaching of certain viewpoints deemed “divisive”? What are the ethical implications of the actions we take? Both in the written commentaries and in our follow-on podcast, scholars and practitioners emphasized that we must continue to do the work necessary to fulfill our missions. Legislative winds will shift. New conflicts will develop while others dissipate. Yet our core commitments remain. We may face baffling contexts, but pausing and reflecting can help us de-center the chaos and re-center the ethical responsibilities we have as educators.
References
Brown, D.J. “FL Legislature Stuck Last-Minute Policy Changes Into HB 7: Critics Call It a Huge Problem.” Florida Phoenix, March 14, 2022. https://floridaphoenix.com/2022/03/14/fl-legislature-stuck-last-minute-policy-changes-to-hb-7-critics-call-it-a-huge-problem/
Pettit, E. “‘It Just Felt Wrong’: U. of Florida Faculty Say Political Fears Stalled an Initiative on Race.” Chronicle of Higher Education, November 30, 2021. https://www.chronicle.com/article/it-just-felt-wrong-u-of-florida-faculty-say-political-fears-stalled-an-initiative-on-race.
Ray, R., and A. Gibbons. “Why are states banning critical race theory?” Brookings, November 2021. https://www.brookings.edu/blog/fixgov/2021/07/02/why-are-states-banning-critical-race-theory/.
Taylor, R. M., and A. F. Kuntz, eds. Ethics in Higher Education: Promoting Equity and Inclusion Through Case-Based Inquiry. Cambridge, MA: Harvard Education Press, 2021.
University of Florida Faculty Senate. Report of the Faculty Senate Ad Hoc Committee on Academic Freedom. n.d. https://drive.google.com/file/d/1mB6mjqdE6bqdQcXOhX_5pUpRhnSik2X8/view.
About the Authors
Ashley Floyd Kuntz is clinical assistant professor of higher education in the Department of Educational Policy Studies at Florida International University.
Rebecca M. Taylor is assistant professor in the Department of Education Policy, Organization, and Leadership at the University of Illinois at Urbana-Champaign.
They are co-editors of the 2021 volume Ethics in Higher Education: Promoting Equity and Inclusion Through Case-Based Inquiry.