Rejecting Racism in Higher Education

Education

Rejecting Racism in Higher Education

Jan 22nd, 2024 19 min read

summary

This is a model bill meant for state lawmakers to use regarding public institutions of higher education:

Section 1: Short Title, Findings.

a) Short Title: Rejecting Racism in Higher Education

b) Findings: [This state] legislature finds the following:

1. The First Amendment of the U.S. Constitution robustly protects the right to speak without government interference, but not to compel others to speak, adopt, affirm, adhere to, or profess specific beliefs.

2. The Fourteenth Amendment of the U.S. Constitution holds that no State shall deny to any person within its jurisdiction the equal protection of the laws.

3. Title IV of the Civil Rights Act of 1964 “promotes the desegregation of public schools and authorizes the U.S. Attorney General to file lawsuits to enforce the provisions of the Civil Rights Act. It defines ‘desegregation’ as ‘the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin,’ thereby removing government-sanctioned racial discrimination in schools and concretizing the Supreme Court’s holding in Brown [v. Board of Education] that racial separation is a violation of the Equal Protection Clause of the 14th Amendment.”[1]

4. Title VI of the Civil Rights Act of 1964 holds that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

5. As an example of how postsecondary institutions are compelling certain speech and beliefs among employees regarding racial issues, nearly one-fifth of the jobs in higher education require applicants to write a diversity statement pledging their commitment to “diversity, equity, and inclusion,” according to an American Enterprise Institute report from November 2021.[2]

6. In a study of 65 universities representing 16 percent of all students at four-year universities, researchers found that these schools had an average of 45 staff employed to carry out diversity, equity, and inclusion activities, which are activities that further discrimination, exclusion, and indoctrination. Research finds that the presence and size of these offices are unrelated to student satisfaction at these postsecondary institutions.[3]

7. Peer-reviewed studies have found that diversity, equity, and inclusion training programs are ineffective at improving individual attitudes and behaviors and leads in some cases to increased reported levels of resentment among participants,[4] as well as discriminatory practices and attitudes.

8. The U.S. Supreme Court ruled that colleges may not use race or racial stereotypes as a basis in college admissions decisions.[5]

9. According to Speech First, 45 percent of all private colleges and 55 percent of public colleges operate a bias reporting system that encourages individuals on campus to report on someone else’s First Amendment-protected speech, reports that trigger burdensome and unfair university investigations.[6] The U.S. Department of Justice issued a statement of interest in 2018 against the University of Michigan’s “Bias Response Team” and said such a policy “chills protected speech.”[7]

10. The U.S. Department of Justice has also said, “Freedom of speech and expression on the American campus are under attack.” Surveys find that 80 percent of students self-censor “at least part of the time” and 60 percent of students “have at some point felt they couldn’t express an opinion for fear of how students, professors, or college administrators might respond.”[8]

Section 2: Purpose.

It is the intent of the legislature of this state that administrators, faculty, and other employees of public elementary and secondary education institutions maintain nondiscriminatory policies in accordance with Title IV and Title VI of the Civil Rights Act of 1964.

Section 3: Provisions.

In order to prevent discrimination, to promote the intellectual development of students and faculty of [this state], and to protect the free exchange of ideas according to the constitutions of the United States and [this state], the legislature enacts the following provisions applicable to all public institutions of higher education in this state, as well as all such similar private institutions of higher education and any other postsecondary institutions (hereinafter collectively “postsecondary institution”):

(a) No officer, agent, administrator, employee, teacher, or contractor of a postsecondary institution shall compel another officer, administrator, employee, teacher, contractor, or student to speak, adopt, affirm, adhere to, or profess ideas in violation of Title IV or Title VI of the Civil Rights Act of 1964, including but not limited to the following:

1. That individuals should be adversely or advantageously treated on the basis of their race, ethnicity, color, or national origin; and

2. That individuals, by virtue of race, ethnicity, color, or national origin, bear collective guilt or are inherently responsible for actions committed by other members of the same race, ethnicity, color, or national origin.

(b) No officer, agent, administrator, employee, teacher, or contractor of a postsecondary institution may segregate, track, classify, or treat differently students on the basis of race, ethnicity, color, or national origin except where expressly required by state or Federal law.

(c) No officer, agent, administrator, employee, teacher, or contractor of a postsecondary institution shall, whether or not in the course of instruction or unit of study, compel or direct students to personally voice support for, affirm, adopt, or adhere to any of the tenets identified in section (a).

(d) No officer, agent, administrator, employee, teacher, or contractor of a postsecondary institution shall, whether or not in the course of instruction, unit of study, professional development, or training program, direct or otherwise compel employees of a postsecondary institution to personally voice support for, affirm, adopt, or adhere to any of the tenets identified in section (a).

(e) No officer, agent, administrator, employee, teacher, or contractor of a postsecondary institution operating in this state, when acting in the course of his or her official duties, shall organize, participate in, or carry out any act or communication that would violate section (a). This shall not be construed to prohibit an employee from discussing the ideas and history of the concepts described in section (a) for legitimate educational or pedagogical purposes consistent with this act and using methods of communications consistent with this act.

(f) No officer, agent, administrator, employee, teacher, or contractor of a postsecondary institution operating in this state may condition enrollment or attendance in a class, training, or orientation on the basis of race, color, or national origin where not required by Federal law.

(g) Nothing in this statute prohibits or authorizes officers, agents, administrators, employees, teachers, or contractors of a postsecondary institution or students from discussing public policy issues of the day or ideas that individuals may find unwelcome, disagreeable, or offensive.

(h) Postsecondary institutions that are in violation of this section are not eligible for state funding under [state higher education formula]. In order to regain eligibility, an institution must demonstrate compliance with all requirements for not less than [1] fiscal years after the fiscal year in which such institution became ineligible.

(i) In addition to enforcement by the attorney general of [state], an individual may also bring a private right of action against any postsecondary institution engaged in such prohibited discrimination for a restraining order, a preliminary or permanent injunction, actual damages, and such other as is appropriate to stop a violation of this statute. Such individual shall be entitled to recovery of all attorneys’ fees and costs incurred as well as liquidated damages in the amount of [XXX] for each day that a postsecondary institution violates this statute.

(j) A postsecondary institution shall not expend any state funds and shall reject any federal funds whose receipt requires the institution to promote, support, or maintain any diversity, equity, or inclusion programs or campus activities whether or not targeted or provided to employees, students, guests, or the public or

1. Hire or assign an institution employee or contract with a third party to conduct diversity, equity, or inclusion activities; or

            2. Compel, require, or solicit from a job applicant a diversity, equity, or inclusion statement or give preference to a job applicant that includes a diversity, equity, or inclusion statement; or

            3. Require a student applying to a postsecondary institution or job applicant at a postsecondary institution to participate in diversity, equity, or inclusion training as a condition of enrollment or hiring, respectively.

4. Nothing in this act shall be construed to prevent compliance with any state and Federal civil rights laws that do not depend on receipt of state or Federal funding.

(k) A postsecondary institution shall not require current or prospective officer, agent, administrator, employee, teacher, or contractor to submit a statement describing their views on matters related to race, ethnicity, color, or national origin—often called diversity statements—to be considered for the purposes of hiring, evaluating, or promoting those administrators, employees, or teachers.

Section 4: Definitions.

In this act:

1. AFFIRM, SUPPORT, ADOPT, or ADHERE TO. These terms include communicative speech or actions, including but not limited to engaging in symbolic speech, holding signs, raising hands, signing a pledge, participating in a parade or “privilege walk,” or racially segregated activity of any sort.

2. COMPEL. This term includes causing or pressuring an individual to perform some act or state an idea or belief against his or her will, or retaliating against a person who declines to so act or state.

3. COURSE OF INSTRUCTION OR UNIT OF STUDY. These terms mean a class, single component, or subject offered by a postsecondary institution for the completion of a degree or that leads to a postsecondary award including academic credit or for the purposes of auditing a class.

DIVERSITY, EQUITY, AND INCLUSION. This term means:

(I) an office, division, department, or administrative provider of a unit of study at a postsecondary institution with the purpose of

     (A) Influencing academic, administrative, hiring, or employment practices at the institution; and

     (B) Promoting

          (i) Racial preferences;

          (ii) Differential treatment on the basis of race, color, or ethnicity; or

          (iii) Political or social activism to consider race, color, or ethnicity as factors in decision-making, except where required by law; and

     (C) Any such promotion described in subsection (B) that conflicts with color-blind and sex-neutral processes that align with state and federal antidiscrimination laws; or

(II) Any program, activity, applicant statement, or training described in section 3(j) that promotes an activity described in subsection (B) of this section.
Section 5: Severability.

The provisions of this act are hereby declared to be severable, and if any provision of this act, or the application of such provision to any person or circumstance, is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.


[1]Jonathan Butcher and Sarah Parshall Perry, “Critical Race Theory in Practice: A Violation of Federal Law,” in Lindsey M. Burke, Jonathan Butcher, and Jay P. Greene, eds., The Critical Classroom, (Washington, D.C.: The Heritage Foundation, 2022), p. 43.

[2]James D. Paul and Robert Maranto, “Other than Merit: The Prevalence of Diversity, Equity, and Inclusion Statements in University Hiring,” American Enterprise Institute, November 2021, https://freebeacon.com/wp-content/uploads/2021/11/Paul-Maranto.proof2_.pdf (accessed January 16, 2024).

[3]Jay Greene and James Paul, “Diversity University: DEI Bloat in the Academy,” Heritage Foundation Backgrounder No. 3641, July 27, 2021, https://www.heritage.org/sites/default/files/2021-07/BG3641_0.pdf.

[4]Frank Dobbin and Alexandra Kalev, “Why Doesn’t Diversity Training Work?” Anthropology Now, Vol. 10, No. 2 (September 2018), https://scholar.harvard.edu/files/dobbin/files/an2018.pdf (accessed January 16, 2024); Elizabeth Levy Paluck and Donald P. Green, “Prejudice Reduction: What Works? A Review and Assessment of Research and Practice,” Annual Review of Psychology, Vol. 60 (January 10, 2009), pp. 339–367, https://www.annualreviews.org/doi/full/10.1146/annurev.psych.60.110707.163607 (accessed January 16, 2024); Patrick S. Forscher et al., “A Meta-Analysis of Procedures to Change Implicit Measures,” PsyArXiv, August 9, 2019, https://psyarxiv.com/dv8tu/ (accessed January 16, 2024); Carol T. Kulik and Loriann Roberson, “Common Goals and Golden Opportunities: Evaluations of Diversity Education in Academic and Organizational Settings,” Academy of Management Learning and Education, Vol. 7 (2008); Lindsey Burke, et al, “Created Equal: A Road Map For an America Free of the Discrimination of Racial Preferences,” Heritage Foundation Special Report, No. 274, June 29. 2023, https://www.heritage.org/sites/default/files/2023-07/SR274.pdf; C. K. Lai et al., “Reducing Implicit Racial Preferences: II. Intervention Effectiveness Across Time,” Journal of Experimental Psychology: General, Vol. 145, No. 8 (2016), pp. 1001–1016, https://doi.org/10.1037/xge0000179 (accessed January 16, 2024); and Michelle M. Duguid and Melissa C. Thomas-Hunt, “Condoning Stereotyping? How Awareness of Stereotyping Prevalence Impacts Expression of Stereotypes,” Journal of Applied Psychology, Vol. 100, No. 2 (2015), pp. 343–359, https://doi.org/10.1037/a0037908 (accessed January 16, 2024).

[5]Students for Fair Admissions v. President & Fellows of Harvard College, 600 U.S. _ (2023).

[6]Cherise Trump, “Restore Campus Free Speech by Eliminating Bias Reporting Systems,” American Enterprise Institute, July 2022, https://www.aei.org/wp-content/uploads/2022/07/Restore-Campus-Free-Speech-by-Eliminating-Bias-Reporting-Systems.pdf?x91208 (accessed January 16, 2024).

[7]News release, “Justice Department Files Statement of Interest in Michigan Free Speech Case,” U.S. Department of Justice, June 11, 2018, https://www.justice.gov/opa/pr/justice-department-files-statement-interest-michigan-free-speech-case (accessed January 16, 2024).

[8]News release, “Justice Department Files Statement of Interest in Michigan Free Speech Case,” and Trump, “Restore Campus Free Speech by Eliminating Bias Reporting Systems.”

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