Iowa’s higher ed reform bills threaten academic freedom

Iowa is considering a slate of bills that would limit speech in college classrooms and threaten academic freedom. These measures would mandate reviews of classroom content for DEI or critical race theory, remove topics like “multiculturalism” from teacher training programs, and enshrine a viewpoint-discriminatory definition of “antisemitism” into university policy. 

These proposals test longstanding constitutional limits on government interference with academic freedom and classroom discussion, so let’s take a look at each one in turn.

DEI and CRT

HF 2487 and SF 2303 instruct the Iowa Board of Regents, which governs the state’s public four-year universities, to:

Conduct a review of all undergraduate general education requirements and core curricula at institutions of higher education governed by the board. For the review, the board shall direct the institutions to review and identify any required courses or course requirements that include diversity, equity, inclusion, and critical race theory-related content. The board in its discretion shall direct an institution to eliminate such a course or course requirement.

Essentially, universities would need to audit their general education requirements and core curricula for any course that merely “includes” DEI or CRT content, even if it’s only supplementary material. The state board could then require institutions to eliminate those classes.

One problem is that these bills don’t define what they mean by “critical race theory-related content.” CRT itself is a hard-to-define theory with varying interpretations — and the bill requires only that the content “relate” to CRT, leaving this term open to arbitrary application. For example, an American history course that covers racial power dynamics in the civil rights movement could be said to include CRT-related content.

Some may say this would be a bad-faith reading, but the bill’s failure to define terms means that it’s a plausible reading, bad-faith or not. That’s one of the problems with vague or undefined terms in laws or regulations impacting speech: They invite abuse by officials seeking to punish a particular viewpoint. And experience has shown that classroom restrictions on controversial topics will be read broadly. After Texas A&M banned professors from advocating “race or gender ideology” and “sexual orientation” in core courses, a professor was told to remove Plato excerpts from his introductory philosophy course because they “may” touch on race or gender ideology.

As for DEI, a pre-existing section of Iowa law defines this term, but that doesn’t remedy the core issue. Although the state has some authority to shape the general education curriculum in higher ed (for example, requiring a math course but not a foreign language course), this authority is still subject to the First Amendment, which does not tolerate laws that “cast a pall of orthodoxy” over the college classroom. The state cannot prohibit teaching educationally relevant topics in required classes simply because it disfavors those topics.

HF 2487 and SF 2303 cross this red line by singling out courses for elimination that merely “include” disfavored content. If a class reading relates in some way to DEI or CRT, then the class “includes” DEI or CRT-related content and falls within the scope of these bills. Or if a professor simply allows discussion to veer into a topic related to DEI or CRT, the class could be subject to review and potential elimination. Because the word “include” is so incredibly broad, professors will likely err on the side of caution and not permit any such content, whether in the syllabus or spontaneous class discussion. 

Nor does it help that the board has “discretion” to remove such courses. For one thing, if the state enacts either of these bills, its message to the board is clear: Get these ideas out of required courses. But even if the board acts entirely of its own accord, it would still be constitutionally barred from singling out particular ideas merely because it dislikes them.

These efforts chill classroom discussion and undermine the very purpose of higher education: teaching students how to think, not what to think, by examining different ideas — no matter how unpopular or offensive some might find them.

Multiculturalism

HSB 718 would require teacher training programs to:

Discontinue and remove from required preparation, coursework, practicums, seminars, or assessments any instruction, training, or pedagogical framework that includes or is derived from any of the following concepts: (a) Diversity, equity, and inclusion theories or practices. (b) Multiculturalism as a behavioral or classroom management framework. (c) Social and emotional learning or social-emotional behavior conditioning models.

The First Amendment concerns noted above also apply here. Although the state may set criteria for certifying K-12 teachers, it simply cannot decide what ideas are off the table for discussion in public college classrooms.

The consequences of this are significant even within the narrower context of teacher training programs. The bill requires schools to remove all pedagogical frameworks “derived from” DEI, which is defined to include frameworks that “categorize” individuals based on “demographic characteristics” for the purpose of altering behavior expectations or classroom management. Once again, the breadth of this restriction leaves far too much open for interpretation — and abuse. As written, this may prohibit a pedagogical framework where teachers simply learn to be aware of students’ economic and cultural backgrounds when they engage their classrooms. For example, recognizing that a student from a non-English speaking household may need special attention and patience.

Antisemitism

SF 2336 and HF 2544 would require community colleges and public universities to prohibit antisemitism using the 2016 International Holocaust Remembrance Alliance’s (IHRA) working definition of antisemitism, which reads:

Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.

The IHRA definition also includes a list of examples of antisemitism, including:

• Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.
• Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.
• Drawing comparisons of contemporary Israeli policy to that of the Nazis.

Antisemitic discrimination, like all forms of discrimination, is a serious problem that the state should address. But this approach risks undermining both constitutional free speech protections and anti-discrimination law.

First, although it might sound like a good idea to “prohibit” some types of bigotry, the Supreme Court has repeatedly rejected such attempts. Instead, the Court has recognized that the First Amendment protects “even hurtful speech on public issues” as a necessary step “to ensure that we do not stifle public debate.” The state may prohibit conduct that targets people based on their membership in a protected class, like harassment properly defined, but it may not prohibit speech just because some consider it “antisemitic.”

Making matters worse, as FIRE has pointed out many times before, the definition of antisemitism used here was not designed to be a legal standard and is dangerously vague when used for that purpose. This is a point that the definition’s primary author himself, Kenneth Stern, has repeatedly made. It was developed as a non-binding educational and data-collection tool, not for use in enforcement, and it defines “antisemitism” as “a certain perception of Jews,” a formulation so indeterminate that speakers and institutions cannot reasonably know what expression is prohibited. 

It would also sweep in clearly protected political speech. One of IHRA’s examples of antisemitism is applying so-called “double standards” to Israel. But the Constitution affords people the freedom to focus their criticism however they please. Moreover, this raises the question: How much does one need to talk about human rights abuses in other countries in order to avoid applying “double standards” to Israel?

Another one of IHRA’s examples is simply comparing Israeli policies to those of Nazi Germany. But Americans are free to draw such comparisons to any number of governments, including our own. The First Amendment does not allow for a special exemption for any particular country.

Protected political speech does not transform into discriminatory conduct merely because it criticizes one country rather than another or is offensive, provocative, or sharply critical. Embedding this sort of viewpoint discrimination into enforcement policy risks collapsing the essential distinction between protected expression and unlawful discriminatory conduct.

Courts are increasingly recognizing these issues. In Students for Justice in Palestine at the University of Houston v. Abbott, for example, a federal district court found that using the IHRA definition to “guide” determinations of antisemitism plausibly constituted unconstitutional viewpoint discrimination. The court emphasized that the IHRA examples single out particular political viewpoints, especially criticism of Israel, thereby burdening one side of a contentious public debate. Because the government may not favor or disfavor speech based on viewpoint, the court held that the plaintiffs were likely to succeed on their First Amendment claim, though their request for a preliminary injunction was denied on other grounds.

It’s important that the state mind these constitutional distinctions. When legitimate anti-discrimination efforts are put on hold due to constitutional issues, those most affected by this failure are the students who need the law’s protection.

Better approaches

There is much that state legislators can do to reform higher education. FIRE’s 10 common-sense reforms for colleges and universities, for example, include prohibiting political litmus tests, protecting free speech in policy, and prohibiting disruptive and violent conduct. But the state may not single out disfavored ideas for elimination, or use viewpoint-discriminatory standards to define unprotected conduct. Such measures are unconstitutional, resulting in self-censorship and an impoverished classroom.