Legislature’s university meddling promotes quackery, not diversity
One of the several fronts in the culture wars that Republicans are waging in the Florida Legislature is an outwardly innocuous bill to protect “intellectual freedom and viewpoint diversity” at the state’s universities and colleges. But to look into the details is to ask “Why?” and conclude, “Whoa!”
This so-called “intellectual freedom” bill transgresses what used to be a cardinal principle of conservative politics: Don’t make laws without a persuasive reason. There doesn’t seem to be any for this bill, which has passed both houses as the committee substitute for House Bill 233 and will be on its way to the governor sooner or later.
Florida already has a law, which took effect in 2018, to protect free expression in the public areas of the campuses. By then, the University of Florida had already allowed the alt-right racist Richard Spencer to speak there despite the certainty of the raucous mass protest that ensued.
House Bill 233 goes further, attempting to protect the right of faculty and students to say anything wherever they please. While that is the essence of the First Amendment, it is not absolute. Falsely accusing someone else of a crime, for example, is actionable under criminal and civil laws.
Similarly, no university should be forced to retain a faculty member whose behavior contradicts everything he or she is employed to teach. An anti-vaxxer, for example, would be worse than useless on the faculty of a department of public health. A member of the Flat Earth Society would have no place teaching geography.
In the realm of actual cases, Florida Atlantic University had a professor of communications, James Tracy, whose blog mocked as a hoax the Sandy Hook massacre in which 20 children and six adults were shot dead. He contributed a chapter to a book falsely claiming that the tragedy was a FEMA hoax to promote gun control. It was if the conspiracy monger Alex Jones had joined the faculty to teach journalism.
When the university fired Tracy, however, it was on a charge of repeated insubordination by refusing to file required forms disclosing outside employment that could affect the university. He sued in federal court, claiming retaliation for his opinions. A jury disagreed, a judge denied him a new trial, and he lost an appeal. Had he not given the administration other grounds to fire him, he might still be there.
Whether HB 233 would apply to a situation like Tracy’s is not clear. There are, however, other serious questions about the bill.
It requires the State Board of Education to conduct an annual survey of the “intellectual freedom and viewpoint diversity” on each campus. It would do so by adopting or creating “an objective, nonpartisan and statistically valid survey” that measures “the extent to which competing ideas and perspectives are presented.”
This is meddling for no clear purpose. Faculties fear, not without reason, that this would lead to administrators plumbing their political views for the benefit of politicians in Tallahassee. It’s also easy to imagine Holocaust deniers, alt-right racists and QAnon adherents demanding employment to peddle their nonsense in classrooms. On that ground alone, the bill needed more work and more thought. If Gov. Ron DeSantis cared to stand by conservative principles, he’d veto it and invite the sponsors to try again.
The bill guarantees the right to record classroom lectures and discussions, something that Tracy himself denied when another professor invited him back to FAU to lecture on the CIA’s relations with journalists. Recording someone without permission (or a warrant) is generally a felony under Florida law. In one of their only concessions to critics, sponsors accepted an amendment requiring a lecturer’s consent to publish his or her remarks.
People who consider their views suppressed could sue to recover damages, costs and attorneys’ fees. Those would have to be paid from “non-state funds,” most likely meaning student fees.
Student government officers disciplined for their own organizations could appeal to the university administration.
In what appears to be directly related to Title IX cases involving sexual harassment or assault, the bill provides new due process guarantees for students facing discipline or expulsion. Most appear to track what Betsy DeVos, the former U.S. Secretary of Education, adopted in rules that the Biden administration may repeal. HB 233 doesn’t incorporate the most controversial of them, which limited investigations to incidents on campus or at school-sponsored events, but we question why a bill with extensive legal implications wasn’t referred to the House Judiciary Committee.
The bill appears inspired by the Foundation for Individual Rights in Education (FIRE), a nationwide nonprofit that was established with seed money from David Koch and other conservative donors. In several respects, HB 233 resembles FIRE’s model legislation. But in others, it so departs from FIRE’s intentions that even the organization itself has encouraged lawmakers to vote against the bill.
“FIRE appreciates the bills’ sponsors’ goodfaith intention to promote free expression,” wrote Joe Cohn, the organization’s legislative and policy director. “But although it may be possible to craft legislation that strikes the right balance between transparency and academic freedom, the language pending in Florida doesn’t cut it.”
It can’t be denied that academia has acquired a tendency to be overly protective of students’ sensibilities at the expense of the right of other students to speak and hear controversial views. Considering such viewpoints is the essence of higher education. FIRE has intervened, often with success, in many cases where colleges went overboard, including cases that gave the organization nonpartisan cred despite its conservative funding, such as defending a progressive Zionist club at New York’s Skidmore College and anti-racism artwork at the University of Virginia.
But FIRE’s extensive listing of such cases is notably short on those from Florida, and most of those were corrected after FIRE intervened. The most notorious was that of Sami Al-Arian, a computer engineering professor at the University of South Florida, whom the university tried for years to fire on allegations that he supported Mideast terrorism. It turned out that he did and was deported.
Given the dearth of other justification, HB 233 is a solution in search of problems that may cause more of them than it solves.
The sponsors are Rep. Spencer Roach and Sen. Ray Rodrigues, Republicans from southwest Florida. By email and phone message, we asked for the reasons behind the bill and have not heard back.