Debates on Critical Race Theory, Academic Freedom Are Not Going Away


​​​​​​​​​​​​​​Aired January 14, 2022

The dotEDU hosts discuss how Congress is trying to clean up the mess it left behind before the holiday break on a number of bills that could affect higher education in 2022, including the Build Back Better Act, which could impact the maximum Pell Grant, other federal spending bills, and the U.S. Innovation and Competition Act. Then Michelle Deutchman, executive director of the University of California National Center for Free Speech and Civic Engagement returns to the podcast to talk about a range of issues related to critical race theory, academic freedom and how presidents and campus leaders should be flexible and ready to engage. 

Here are some of the links and references from this week’s show:


Register for the ACE Annual Meeting

Manchin’s $1.8 trillion spending offer appears no longer to be on the table
The Washington Post (sub. req.) | Jan. 8, 2022

​Conversation with Michelle Deutchman

University of California National Center for Free Speech and Civic Engagement

Curriculum Incentive Plan Prompts Political Backlash
Inside Higher Ed | Jan. 7, 2022

When Professors Offend Students: Classroom norms are changing. Where’s the line, and who decides?
The Chronicle of Higher Education | Dec. 16, 2021

Civil Discourse Resources
UC National Center for Free Speech and Civic Engagement

First Amendment/Freedom of Expression Education Resources
UC National Center for Free Speech and Civic Engagement

UC National Center for Free Speech and Civic Engagement Events

UC National Center for Free Speech and Civic Engagement Fellows Research

ACLU challenge to HB 1775, OK “CRT bill”

Hosts and Guests
Michelle Deutchman - Executive Director, University of California Center for Free Speech and Civic Engagement - Guest
Michelle Deutchman
Executive Director, University of California Center for Free Speech and Civic Engagement

 Read this episode's transcript

Jonathan Fansmith: Hello, and welcome dotEDU, the higher education policy podcast from the American Council on Education. Little later in the episode, we're going to be talking with Michelle Deutchman who is the executive director of the University of California National Center for Free Speech and Civic Engagement, and I think quite possibly the first repeat guest we have had on the show, so we have to give her special kudos for that. But before we talk with Michelle, we are coming back from the holiday break. I am joined by my lovely and illustrious colleagues Mushtaq Gunja and Sarah Spreitzer. And so I have to ask we're back from the holidays, we're getting back in the workflow. How were your holiday breaks guys?

Mushtaq Gunja: Mine was great, and I feel like we still are in holiday break because we still have our Christmas tree up. And we had a conversation last night about when that was going to come down and the kids lobbied for Valentine's day, and my wife lobbied for this weekend. So-

Jonathan Fansmith: Was this a cut tree? Is this a fake tree? What is the nature of the tree?

Mushtaq Gunja: Jon, it is very fake and it's exactly what you would think a fake tree would look like, but it also has lots of ornaments made by Cindy's, my wife's, four-year-old students. So it's cute, it's adorable. I guess I should... Let's see if the listeners of this loyal podcast have recommendations or ideas about when the tree should come down, please send them my way. Sarah, how was your break?

Sarah Spreitzer: It was good, but Mushtaq I was going to ask, last year during quarantine didn't you leave the tree up till about March? It was very festive, I remember, at your house when we were doing zoom meetings.

Mushtaq Gunja: Yeah. The question was, were we going for festivity or were we just a little bit lazy? And...

Sarah Spreitzer: I thought it was for festivity.

Jonathan Fansmith: I mean, it could be both, right? They're not mutually exclusive.

Mushtaq Gunja: Yeah. Very true. Sarah, how was your break?

Sarah Spreitzer: It was good. And folks in the DC area probably know that we got a little extra break because we had a few snow storms, which was really fun for all of us and especially for the kids. And so it feels like this is actually the first week back, right? Because we don't have any snow, kids are back in school, hopefully, and so this really feels like the first week back.

Jonathan Fansmith: Yeah. I strongly disagree with the idea that we got extra break. The kids got extra break, that actually even shortened my break by somewhat by we having to watch kids and come back to work. So it was not my favorite. It's the first snow day. I haven't enjoyed in a long time because we haven't got much recently.

Sarah Spreitzer: Yeah.

Mushtaq Gunja: John, you were traveling and did your flights get canceled and you made it back okay?

Jonathan Fansmith: So I made it back okay. I'm here with you all. But my flight did get canceled. We got caught in that wave of cancellations right before New Year's and it allowed me to spend two and a half extra days with my in-laws, which, they're lovely people, and more time with them is always great. I talked about this podcast during the holiday break, so they might be listening. So I will just emphasize how great it is to spend a full week, rather than just five days with them, lovely people and always a pleasure to see.

But happy to come back to DC and get my life in order and get started on things as well. So happy, happy holidays. Lots of COVID tests throughout the holiday.

Mushtaq Gunja: Well, I was out in California for part of the break and the weather was not quite as warm as it will be in early March, where we are having our annual meeting [inaudible 00:03:41] meeting, March 4th through March 7th. I hope many of our loyal listeners will find their way to San Diego. But we are making good progress on this meeting. I think the content's coming together really nicely. We're going to have a whole set of sessions that I think will be of significant interest to listeners of this podcast, lots of good public policy conversations, one with the Chronicle of Higher Education, one with Inside Higher Ed. Actually your vice president, Terry Hartle will be making a couple of presentations. We have a plenary session with Kristen Soltis Anderson, who will be talking about her latest polling and the state of education. So that's going to be great. I hope everybody's going to be able to come.

Jonathan Fansmith: The numbers are actually, I think you were telling me last week, the numbers for attendance are really good. I mean, I'm happily surprised by what it's looking like.

Mushtaq Gunja: I think people are excited to get back and get to see each other a little bit and learn from each other. The virtual meetings were okay, were pretty good, but there's something about actually getting to talk to folks and wear your sunglasses and flip flops that you just can't quite get on zoom. So this is [crosstalk 00:04:55]

Jonathan Fansmith: [crosstalk 00:04:55] reminder. Mushtaq, this is my friendly reminder, Ted has twice promised to buy me flip flops and he has yet to deliver on that. So [crosstalk 00:05:01].

Mushtaq Gunja: Hold on [crosstalk 00:05:03].

Jonathan Fansmith: He might actually... Oh no. You know what I should note, Ted is probably the only other repeat guest on the podcast. So somebody did beat Michelle, but it's not really a fair competition since he's in house.

Mushtaq Gunja: What's happening in Congress guys?

Sarah Spreitzer: Not much yet, but they're tee-ing things up. Right Jon? They have to get a lot of things done. Of course they kicked the can down the road on a bunch of things, and so I think February is when the funding runs out in the appropriations bills, debt ceiling's still hanging out there. And then what's going on with the Build Back Better Act, Jon?

Jonathan Fansmith: I mean, that's why I laughed when you said "What's Congress doing?" Congress is basically trying to clean up the mess they left before they went away, right? The debt ceiling may be the only thing they actually dealt with they, and they dealt with it just by punting it past the election so they didn't have to deal with it before the midterm elections in November. Build Back Better is for all intents and purposes, I don't know if you'd call it dead, but it's on life support. It's resting there. Senator Manchin, right before the Christmas holidays, said that he couldn't go along with any of the proposals that were out there. He's recently said, in fact, that he can't go along with his proposal that he made as a counter proposal. So at this point, the Senate's doing other things. They're looking at voting rights and other issues, really focused mostly on voting rights right now.

So Build Back Better will sit. There's been lots of assurances from Democratic leadership that maybe we'll have a different looking bill. Maybe we'll have a smaller bill. Maybe we'll have a bill that's paid for in different ways that. There's lots of options on the table, but nobody's really clear on what those will be. And if you remember, we are now almost a year into the Build Back Better Act's inception to its [inaudible 00:06:49]. The odds as you get closer and closer to election, it just gets harder and harder for them to do that. So we'll see. It's not dead, but likelihood's not great right now.

Sarah Spreitzer: I like the idea is that it's resting. That's a nice way to put it, as opposed to say, mostly dead, right? It's just resting.

Jonathan Fansmith: Taking a nap. Yeah.

Sarah Spreitzer: Yeah, taking a nap. Well, one thing that is moving or will likely move, I think in the first couple months is the US Innovation and Competition Act, which is the big China bill, which the Senate passed last year. The House passed pieces of it, but the House and Senate seem to be actively working on some manager's amendment or conference agreement. I don't think it can really be called a conference agreement since they don't have house legislation that they're conferencing from, but producing some massive bill that can be passed, and obviously since it already passed the Senate with bipartisan support, they feel pretty good about the odds of passing it. And this has a lot of new authorized funding for the federal science agencies, which is great, and something our institutions really care about. A lot of research security provisions, things like how do you define talent recruitment programs? And then some new reporting and transparency requirements for institutions of higher ed, like section 117 and a couple other new provisions.

So I think that's likely going to move pretty quickly once they come to an agreement because at least that will give them some sort of win going into 2022.

Jonathan Fansmith: Yeah. And, the other thing, and you touched on this a little bit Sarah, the other thing that they're actually doing something on is appropriations, federal funding. They, before the holiday break kicked the can down the road to February 18th, that's when theoretically federal government funding will run out. But recently all through last year, it was pretty much stalemate, didn't move. There's been a lot of positive conversations about what to do. And in fact, a few different proposals put forward for resolving the big issues, which is really right now, how much money you spend on defense and what do you do about certain policy provisions, particularly the use of federal funds for abortion or abortion providers.

And so there's some positive noise about that. They may not be able to actually get all of the federal funding bills wrapped up and agreed by February 18th, but you're hearing more and more, well, they'll do another kick the can down the road by a few more weeks, maybe up to a month, but only in service of actually getting the final package put together. So, positive news on that front, they may resolve that relatively soon. It's big for us because both the House and Senate bills that we've seen, both democratic bills, so obviously they won't be this in the final deal, had huge increases for some final financial aid in scientific research.

So very good things. If we can see something like that, probably won't get all of it, but something like that in the final bills, that will be really positive development.

Sarah Spreitzer: And that would be nice since we didn't get the Build Back Better Act. So right now our students are looking at... It had been proposed, I think the highest increase for Pell Grants, and now we're in 2022 and they haven't seen any of that money. So at least something, right?

Jonathan Fansmith: Yep. Yeah, that's a good point because a lot of the big increase in Pell Grants was funded through Build Back Better, but there's still a big increase that's in appropriation. So it's not what we want. It's far short of what we need, but it's better than nothing.

Sarah Spreitzer: And John, we're both lucky that we're not actually lawyers, right? And so we don't have to deal with one of the other issues that came off already this week for higher ed. And that's the issue, the 568 schools, right Mushtaq?

Mushtaq Gunja: That's right. So-

Jonathan Fansmith: [crosstalk 00:10:34]. Mushtaq is our lawyer, right?

Sarah Spreitzer: Yes. Yes. Just to clarify, he his our... Yes.

Mushtaq Gunja: I am our lawyer, though this lawsuit took me a little bit by surprise. So a set of students have filed a class action lawsuit earlier this week against a set of highly selective institutions that are need-blind. This group is called a group of 568 schools. And I think what these students are alleging is some antitrust violations, some collusion, related to the financial aid packages that are given to applicants that are part of these sets of schools. We'll need to wait for discovery to come out, to be able to really know all of the facts. The allegations are that there's some price fixing that's happening, but I guess I would just note that our institutions are really quite sensitive to questions of antitrust and questions of collusion and price fixing.

These allegations come up periodically, around admissions and around financial aid and have for several years, around the NCAA as well. And our, our institutions typically are found by the courts not to have colluded. They're pretty sensitive, as I said. So we'll have to see how this plays out. I'll be keeping a close eye on it. Circling back to the annual meeting, we have a session at meeting about emerging legal topics so we can ask a couple of the actual higher ed lawyers who know stuff, a couple questions about this if it comes up then. But for now, we'll be keeping an eye on it, make sure to update everybody as we go forward.

Jonathan Fansmith: Great. And I want to actually also take this moment, we're talking about things that happened while we're on the break, although I guess this was a little bit more recent than that, but to give us credit for clearly changing President Biden's mind about the student loan forgiveness pause. Our discussion of that and the increasing pressure he was facing and the arguments for and against. The administration announced over the break that they were delaying... The repayment pause was supposed to begin on February 1st and now it's moving back to... It's April now, right? May? May 1st. May 1st.

Mushtaq Gunja: May. I think it might be May.

Jonathan Fansmith: Through April. Yeah, it's through April and resumes on May 1st. So, and interestingly enough, I think a couple of other people have noted this, but when they announced that, they were very clear not to say, this will be the final extension of the repayment pause, which they had previously, they made a point to saying that up until February 1st, would've been the final one.

So who knows? There might be more, it's all part of this big conversation around student loan forgiveness, which we talked about with Justin on our last podcast episode. And certainly one that's getting a lot of attention.

But speaking of things, campuses will be dealing with this year, I think this is actually a pretty important time to transition. We are in election year. There's a lot of interesting things that are percolating to the top of national attention in academia. And one of those is free speech, academic freedom, what that looks like on a campus. A lot of it's in the K-12 space, but it's the same discussion, same debates going on in higher ed. And I know we're going to be talking to Michelle about that later, but just quick thoughts from each of you on where you think this is coming from and what you think it means?

Sarah Spreitzer: I think a lot of it has to do with the lead up to the midterm elections. And I think we're going to be working on so many different amendments on issues, like critical race theory, academic freedom, diversity issues, because if Congress can't get anything done, they're still going to want to introduce things that allows them to take a position that they can point to in the upcoming elections. And so I just think this is going to be a huge topic that we're going to have to deal with, with legislation.

Jonathan Fansmith: Yeah, I think back to... Go ahead [crosstalk 00:14:46]

Mushtaq Gunja: I agree with a lot of what Sarah said. And there's a piece of Congress not being able to get things done that I think sometimes leads, both people in Congress and maybe the public, to start thinking about things that are more social war, culture war issues. And this fits perfectly, right? Education, race, and how we talk about our past, are issues that have been with us for decades and decades, and I think have hot peaks and valleys in how prevalent they are, but because we're not doing Build Back Better, right? Or at least it's resting right now. I can totally see us spending a lot more time in the lead up to the midterm elections and maybe the lead up to the presidential in 2024, talking about a whole set of culture war issues. And this feels like it could well be at the tip of a spear. What do you think, Jon?

Jonathan Fansmith: No, I would agree entirely. I'd say this is actually the perfect point to take a quick break and come back with an actual expert on these issues who can tell us where we are right or where we are wrong. So we'll be right by with Michelle Deutchman after the break.

And we are back. We are joined by a wonderful guest, a repeat guest. We were talking about this before you came on Michelle, but you are our first, external, repeat guest on the show. So we have to come up with some sort of award or trophy or something, but for now, anyway, just our hardy thanks for doing this again. Again, the fact that you're the repeat guest isn't because we haven't invited other people, I think you're the first one willing to actually do it.

Michelle Deutchman: Well, it's a pleasure to be here and I'll take a trophy anytime.

Jonathan Fansmith: Excellent. We'll find something nice. Do you want to just tell our audience, who might have missed the first episode, a little bit about you and the center that you lead?

Michelle Deutchman: Absolutely. I just want to say, really excited to be here. When it was my premier performance, the center had really just been born. Basically, people can remember way back to 2017, it feels like a hundred years ago now, there was a couple of really highly publicized events on campus, largely when Charles Murray visited Middlebury and when Milo Yiannopoulus came to Cal and the media really focused its microscope on campuses and manufactured this narrative of crisis, and then UC President Janet Napolitano used it as an opportunity to say, "You know what? These are really important issues and let's focus on them and let's have the greatest public institution in the world focus on, not just free speech, but on the intersection of expression and engagement and democratic learning." And the center also really focuses on what can be done to restore trust in the value of free speech on college campuses and within society at large.

And so in the last three and a half years, I've tried to grow the center to be a place to bring people together who are facing these issues and through research and programming and discussion, all of which is accessible at no cost, to create resources, especially for folks like your audience members who are in the field and who are having to deal, day in and day out, with these challenges.

Mushtaq Gunja: And Michelle, we were facing a particular set of concerns as you outlined in 2017 about controversial speakers on campus, and in the last couple of years, I feel like we're seeing a whole new set of challenges. So, everything from President Trump's executive orders on free speech and free expression and the prohibition of the use of diversity and equity and inclusion materials, and some trainings to the language in the NDAA that was about critical race theory and not allowing federal contractors to be able to use materials related to that to a whole set of state legislatures now looking to provisions that would ban the teaching of critical race theory or ban the 1619 Project in particular. What are you seeing? Are those the issues that you have been thinking about lately and generally, how are our campuses dealing with this?

Michelle Deutchman: That's a great question. And I absolutely agree. I think the nature of the problem has changed. When I took this job in 2017, there were a couple people who said, "Well, you know, free speech on campus, that's a niche issue. It's a trend. It's a fad. It's going to go away." Well, I don't think it's going away. If anything, I think it's becoming more insidious and concerning, like what you are saying Mushtaq that before the gold water legislation and other things were focusing on outsiders coming onto campus, and I think now there are still outside influences like the state legislature, which I think is a very severe threat, but also things that are happening with insiders. This is about students. Do they know how to speak to one another, faculty, academic freedom? So I think now we're seeing a much more comprehensive set of challenges.

And certainly, I think that the media's focus on all of the challenges makes it really difficult to know whether it's really a new set of challenges or whether it's old challenges that are being amplified in a different way.

So I think all of the things that you talked about are things that folks on campuses are thinking about. I think that going back to the state legislation, I think that's really a focus. And it's concerning because really what these bills about CRT and book banning and the 1619 Project are, is that really content discrimination. That's state censorship. And they have two effects, right? One is, the actual chilling effect, which is that a lot of schools after the Trump executive order and with the state legislation, they're not even waiting to find out whether a lawsuit is going happen and whether they'll be able to be vindicated, they're just saying, "You know what? It's too risky for us to continue our diversity programs or to use certain words in our curriculum or syllabi, and so we're just going to put full stop suspension." So that's the first piece, which is the self-inflicted censorship.

And then the second piece, I think, is what happens when the laws get passed or that the stakes are a lot higher. Now we're talking about fines. We're talking about people's livelihoods. In the Oklahoma Bill that has to do with targeting critical race theory, and of course I'm using that phrase not to refer to the actual academic study, but the broad brush stroke that a lot of folks are using, is teachers can lose their licenses. And that's something really different, I think, and is concerning.

Sarah Spreitzer: Michelle, I remember when I started working in higher ed and hearing about some of the things happening on campuses, remember the bake sales that would happen-

Michelle Deutchman: Affirmative Action bake sales?

Sarah Spreitzer: Yeah. Affirmative Action, bake sales, things like that. It now seems that a lot of these efforts are so much more sophisticated and at a national level. So you see a bill introduced in a state, but then that language is copied in another state. Is that changing how campuses are responding, are campuses leaning on each other to learn best practices? And what do you see from the national perspective? Is it becoming more sophisticated and are these things being shared across states?

Michelle Deutchman: I mean, okay, in terms of the actual legislative language? Yes. I think that's been happening for a number of years, starting with the Goldwater legislation in 2017, where I think it was 15 states adopted language that was similar to that. And so I think we are seeing a lot of jumping off. I mean, the state legislation we're seeing, late 2020 and early this year is very much a copycat of the executive order from 2020.

And I think Sarah, your point, it was one of the points I was going to make, which seems so simplistic, which is that, I think it's so important not to be reinventing the wheel, whether you're a student or a faculty member or a president, someone has been in your shoes. And so I do think that organizations like yours, and I hope our center and others, are making it clear that there are so many resources available. And so many people that you can rely on that I think that's part of it, which is just, not being afraid to break out and say, Hey, how did you face this? This is really challenging. This is really hard.

Mushtaq Gunja: Hey, Michelle, you referenced the Oklahoma Bill a couple of times. For our listeners who haven't been following it as closely as you have, would you just do a minute primer on what the legislation is and what it would do?

Michelle Deutchman: Sure. So Oklahoma is right now center stage with a lot of these different bills. And I think they're also front and center because there has been a challenge to the bill, which I'm going to tell you about, which was House Bill 1775. And basically it's asking elementary, secondary, and post secondary educators to, quote, avoid topics related to race or sex in class materials and discussions, or risk losing their teaching licenses for violating the law. So it's very broad. And I think that probably all of us could come up with lots of places where topics related to race and sex are coming up in class materials.

So I think one of the reasons that this is, like I said, front and center is actually the ACLUS has challenged this case, and I'm proud to share that the person leading this litigation, sorry, is Emerson Sykes, who was a former center fellow, and it's the first federal case to challenge this type of law. And so I think everybody is waiting to see what will happen. And to your point, Sarah, I think, again, this is the first one. And I think it's going to help determine where things go, right? I think in this case, if things don't go as ACLU hopes, I think it might open up, again, the floodgates for people to say, okay, well, a federal court said we're good to go, so let's go.

Sarah Spreitzer: And then I guess seeing this play out in the K12 area and then these types of things being applied in higher ed, that seems to be the natural progression.

Michelle Deutchman: Yeah. I mean, I think, and I'm glad you raised that. I know for me, I think that I would love to see more connection between K through 12 and higher ed systems, because I think there really is a pipeline of knowledge or lack thereof, both when it comes to education about the first amendment or about free expression, civic literacy, digital literacy. So I think that's really key. And I think the same way that the folks that are creating these challenges for higher ed, like you said, are very well organized and they're going K through 12 and then into higher ed, I think folks who oppose these bills and oppose the undermining of the core of the university, which is academic freedom and the freedom to think, and publish and write and teach the way experts want to I think we need to be doing a better job of thinking about, also, that trajectory and spectrum and how we can work with our K through 12 colleagues.

Jonathan Fansmith: And Michelle, we've been talking about this at the national level, and I think Sarah was hinting at this a little bit with, it's much more sophisticated, it seems much more coordinated. It's hard to escape the fact that we're also in a midterm election year and coming out of Virginia, where a lot of strategists thought that the discussion of CRT and school curriculum drove the election to the Republican side to Governor Youngkin. Do we think this is something that is truly the beginning of an ongoing process or is this something that, come December, we're going to start seeing less interest in state legislatures, less interest at the federal level at putting this kind of legislation... Is this really just political show or is this reflecting a will of a part of the population that wants to see things like this enacted?

Michelle Deutchman: It's a great question and I'm not sure that I know the exact answer. I think certainly, one thing that I can say is that higher education has been co-opted as part of the culture wars, and I think that's very unfortunate. And I don't know that that's going to change after a midterm election. I certainly think that there are certain levers that are being pulled at this moment in the political moment that we're in and the fact that we are coming up to a midterm election, and the fact that in Virginia it was very successful. It was a very successful way to engage voters and get them out to vote. So I think that, yes, I think that as things change, right? Once we're through the midterm elections, I don't know that they'll be using that lever in terms of engaging people, but I think there are other levers to engage people. And I think one of those has to do with things that are happening in the classroom.

I think that, listen, we're an evolving society and the question of acceptable discourse and what is acceptable discourse I think has really also been a great focus. And I think that's something that isn't going to change necessarily with elections or not. And I'm not saying that I think that these issues are always worth front page banners, but I think the reality is that they're going to continue to show up on the front page, and that universities need to be ready, because if you haven't ended up in the quote unquote hot seat, you will. And I think going back to what Sarah was saying, I think that's where, to create community, where you can turn to a colleague and say, okay, you ended up in a virtual Twitter storm. What are the five takeaways? I think we need to be doing more of that.

And again, it's a very simplistic piece of advice, but I think it leads to helping to create a level of sophistication. Because I think that universities just need to be ready. Ready in terms of who's going to be, when you end up in that virtual Twitter storm, whether it deserves it or not, who are the people that are going to need to be brought into it? Who's going to write the communications message? How are you going to respond? How are you going to give support, whether it's to faculty or students who are being targeted? I would say rip a case study from the headlines and get people together on zoom or in a room and really talk it through.

Jonathan Fansmith: I think, from my less expert opinion, that sounds exactly right. And really very thought... I mean, just thinking through it as you were talking too, the idea of universities at the center of culture, you've already laid out. We're going back to 2017, these are things that are just keep... The specifics vary, but the general focus seems to be the same.

But particularly when we're talking about building community, a lot of what we've talked about so far is externally imposed, what state or federal government may do and things like that. How do you engage students, in particular, on this history? A lot of the conflicts come from a student group invite speakers, students are concerned with the expression on a campus. How do you engage students and what are the key things to keep in mind with students as a constituency in this area?

Michelle Deutchman: Okay, well, you have to remember that I'm a lawyer and first amendment is my area, so I'm going to go right to the constitution and to first amendment education. I think that's one of the real keys. So I do a lot of trainings and workshops. It's something that I love to do. And I will tell you that when I go into groups, not just of students, but of administrators too, always half the people in the room don't understand, don't know that hate speech is protected by the first amendment. And of course, when we're talking about the first amendment, we're talking about public institutions. Though, I will add to the private institutional folks listening that most private institutions abide by the norms of the constitution, because that's the way that you transmit and create new knowledge. So, I think there's two pieces.

One is the actual knowledge about how the first amendment works and how it applies. But then the harder piece is, it's not enough just to know, okay, hateful speech is protected. I think we really need to dig in deep to help students in particular understand why that is valuable, especially at a time now, when we are so politically polarized, where there is so much partisanship. I think it's a harder sell, to say to students, it's really important that we protect this really awful speech that's coming from someone in your class, that's coming from someone outside, that's coming from political folks, right? But there's value in it and that's an essential tool in the toolkit in order to promote social change.

So one of the things, again, mentioning Emerson again, he created a pilot program, which we've been doing in a bunch of different schools, first amendment for student activists. So again, this is not a one and done. I think that's also one of the keys, Jon, is that a lot of people say, we're going to talk about first amendment and orientation for five minutes. So much has thrown at students in orientation. So the question is how are we really going to integrate these ideas and these lessons into more regular life, not just for five minutes when you're a freshman? And I think it's all about building muscles, right? Which is that these muscles of understanding how to use your voice, when to use your voice, how to have difficult conversations, they are things that have to be taught. This is what I do all the time and I'm always still learning. And I think it's unfair for us to expect that we're going to take 17 and 18 year old young adults, who've spent K through 12 learning that words have impact and we shouldn't use certain words because of the impact, and drop them off on a public school campus and bring in Richard Spencer, and then everybody's surprised that the students are upset.

And I really smart at this idea that they're weak or that they're snowflakes. I don't think that's the case. I think they're really strong and they're using the muscle that's been built. We just haven't given them the other set of skills. So that's a long way of saying that I think education's really at the core and I think it can happen curricularly. I think it can happen extracurricularly. I think it can happen through clubs. I think there are so many ways that it can happen. And I want to add is happening.

And in fact, hopefully in the show notes, you can drop in, we put together some back to school resources, and one of them was to gather two different resource guides together. And one of them is for having dialogue. There are so many amazing groups who are doing this work, and so we really put together in one place a lot of different ways that you can do that. Same thing for first amendment, there are classroom modules. So I think rather than reinvent the wheel, the center really wanted to say, there's a lot of wheels out there and there's going to be one for your institution, but you have to then commit to using it.

Sarah Spreitzer: Michelle you talked, this isn't a new issue, right? A lot of these issues are not new. Having these dialogues on a campus have been important for a really long time. Are campuses getting better at having those discussions, and then is it just getting harder because the entire US is just becoming much more partisan and the issues of having a dialogue is harder throughout our society, not just on our campuses? Are campuses getting better and it's just getting harder to do the work? Or have they not moved forward over the past couple years as we've been having these difficult conversations?

Michelle Deutchman: No, I absolutely think there has been forward momentum. And I think I just want to add that we have to also remember that campuses, especially in this incredibly challenging time, learning and expression, these things are happening every day on campuses all over the United States, in the quad, in dorms, in the classroom. And again, it's hard to pull apart, Sarah, in terms of the issues, whether they're actually more frequent or just more amplified. But in terms of moving forward? Absolutely. There are so many people who've done great thinking. You see Pen America putting out guides, you see Nancy Thomas at Tufts thinking deeply about these issues. And you see, I think colleges and universities, making tremendous efforts to meet these challenges. The problem is that you can't solve in three years what has been going on for decades. When you think about these threats to academic freedom... McCarthyism was a threat to academic freedom. So again, it's not that this is novel, it's just coming in a different form.

Mushtaq Gunja: It definitely does not seem like the solution to having productive and difficult conversations is the banning of subjects.

Michelle Deutchman: Right.

Mushtaq Gunja: I mean the idea that we're just not going to be able to engage on issues of race and sex broadly, as in the Oklahoma legislation or critical race theory [inaudible 00:36:10] 1619 project. I mean, that feels exactly the opposite way to go. It will cut off productive conversations and will make it difficult for students to be able to really engage with ideas that are different from what they might already hold.

And by the way, Michelle, it seems blatantly unconstitutional. I mean [crosstalk 00:36:34]-

Michelle Deutchman: I was going to say, your expertise also, I think they are unconstitutional. And I think they ultimately will be found to be unconstitutional, but as you know, we should talk like... The law's a blunt instrument. And so, we have to wait while all this goes through the litigation process. And that is hard because look, some schools are going to have the resources and the ability to wait it out and say, when the executive order happened in 2020, a number of colleges doubled down and said, we are not going to suspend our programs, right? But you then put yourself in a position of having your funding potentially being cut, and some schools cannot put themselves in that situation. So ultimately, I do think that this particular vehicle will be, I think, stopped, or I hope it will be stopped if the constitution still has a meaning, but it may take a little while. And again, it may be state by state, right? So it's the Oklahoma case, but somebody somewhere else might say, well, you know what, maybe our district court or appellate bench will make a different decision.

And I think going back to what Sarah said, I think the folks that are committed to eliminating these kinds of discussions are very well organized, they're very well funded, and they're dogged in their pursuit of their perspective.

Jonathan Fansmith: And, that raises just a really good question about part of what the center focuses on, obviously free speech, but also civic engagement, right? So we've talked a lot about things within a campus or things imposed on a campus. How can campuses be agents of change and reach out and counter some of these narratives, speak to the real value of academic freedom, true free expression? How can we be engaged civic actors to help shift this debate and change the narrative?

Michelle Deutchman: I'm really glad you raised that. Because I think, the center has its full name, which is the UC National Center for Free Speech and Civic Engagement, and I feel like the first couple of years it was, free speech... And civic engagement, right? And so I've really been trying to promote the civic engagement piece of it, and I think that that is also going to be one of the keys, which is that, look, we just came out of a terrifying year for democracy, right? Where we watched people mob and riot at the capital and try to under undermine the peaceful transition of power. And I think every sector in society is thinking about what that means, and if democracy needs scaffolding, how can they help? And I think that higher education needs to do that and is doing that. Ron Daniels, who's the President of John's Hopkins just came out with a really interesting book called What Universities Owe Democracy. And I think that a lot of folks are starting to think about that, similar to free speech. It's about education, right? That civic engagement, isn't just getting out the vote, right? What does civic engagement mean and how do we inculcate it into the daily life of students and administrators and others?

And I think there's, again, lots of ways that we're doing it. At the center, I'll just mention, we have this VOICE program, VOICE grant of valuing open and inclusive communication and engagement, and we're giving [inaudible 00:39:51] money, this is to any UC staff, student, or faculty who wants to find a creative or innovative way to further, either dialogue or civic engagement. And I have to say that I'm very proud of what they've done, even though all the center has done is give the money, but people have such interesting ideas about how to get their colleagues and friends and peers engaged, whether that's in the city that they live in, whether it's within their community, civic engagement hackathons, and Votechella and using music and using art. And so I think that part of it is imposed from, we need to mandate certain things, but I think there can be also if given the opportunity, from the ground. I think a lot of people really do want to engage and make change.

Jonathan Fansmith: And hopefully we'll be able to post links to that because that sounds absolutely... I think you saw us nodding along and smiling and leading it as you're talking about that. So we'll hopefully have that in the show notes. And sorry, Mushtaq, I think I interrupted you [crosstalk 00:40:58]-

Mushtaq Gunja: Well, Michelle, I was going to say, classes for many schools that are on a semester system are going to start in the next week or two. If you had one piece of advice for administrators or one thing you wanted them to look at, and then one for faculty members, do you have a ready set of things that you might want faculty to say to staff in their first class?

Michelle Deutchman: I think a couple things. I think I want to give a caveat, I know that's very lawyerly, which is to say that obviously these issues are so important, but right now there's also other issues that are taking precedence, so I imagine that there's probably a lot of discussion about pandemic related things. But I think for faculty, what I would say is I think that the issues of political discourse and civic engagement, I think there's an opportunity to introduce them all across the curriculum. I don't think it has to just be political science or social science. I think that in any academic discipline, there's an opportunity to talk about the discipline's impact on society. And so I think I would just urge faculty to try to think about it with that broad lens, even if it's just one or two readings or even if it's just a series of questions, doesn't have to mean you pick the most controversial issue and drop it on the first day. But to really think about that.

And I think, for students, I don't remember if you said faculty, administrators, and students. Students I think it's just, again really basic. I think it's trying to come at things with a more open mind and to try to really walk in the shoes of some folks who you might disagree with and try to really understand where it is that they're coming from.

And for administrators, I guess I just want to validate that I think in some ways they have, not the hardest job, but a really challenging job because they're the ones that are really interfacing with the students and the faculty and that are often the ones that have to make really tough choices under really unideal situations. So I think to them, I want to say, I think be prepared and I think it's always really hard. I know for me, I'm always like, oh, I'm going to get to that. Right? It's in the future. And I think to really say to your team, you know what? We need to do it now, let's just sit down, it's an hour. And start to think. Because I think that once you start to think, unfortunately it might get harder before it gets easier, but I do think it's worth the investment of time.

Jonathan Fansmith: And that is fantastic advice, and a great place to give you your time back for the rest of the day. We will have links in these show notes to a lot of the resources you mentioned, and I would strongly encourage people listening to go and check them out. And thank you so much, Michelle, for coming on.

Michelle Deutchman: Thank you. Can I go ahead and just give a quick shameless plug though, for the center?

Jonathan Fansmith: Absolutely. Yeah.

Michelle Deutchman: I guess... We'll put the website, obviously, in the links. But I just want to say that for any listeners that haven't visited our website, that haven't been to our speech spotlight live programs, that haven't looked at our resources, I'm going to say, please go ahead and do that because we really, one of my goals for the center is to really create resources and research that are usable by people like you in the field. So I would say, look at what we've got. And then I also would invite anybody who has things that would be helpful, or if there's an issue you'd like to see the center take up, if there's a resource that you feel like isn't out there that you would like to have created, I urge you to reach out to me and to the center because our work is to really respond to the ongoing needs of student, staff, faculty, and others that are in the field.

This is such a pleasure. I could talk with all of you for so much longer. I really appreciate the [crosstalk 00:44:53].

Jonathan Fansmith: Likewise. Yeah, absolutely. And I have a feeling, even though you have already set our record as the first external repeat guest, that it probably won't be the last time we'll be calling you up and asking you to come on and talk you, as you put it [crosstalk 00:45:05].

Michelle Deutchman: If I get another invite, that means I did okay. Now the question is, do I get another trophy?

Jonathan Fansmith: Oh, well, yeah. We'll have to think about that. But for you, we can probably work something out. So anyway, thanks so much, Michelle. It was great having you on.

Michelle Deutchman: Thank you.

Jonathan Fansmith: As always, you can check out earlier episodes and subscribe to dotEDU on Apple, Google podcasts, Spotify, Stitcher, or wherever you listen to your podcast. For show notes and links to resources mentioned in the episode, you can go to our website at And while there please take a short survey to let us know how we're doing. You can also email us at to give us suggestions on upcoming shows and guests. And a very special thank you to the producers who help pull this podcast together. Laurie Arnston, Audrey Hamilton, Malcolm Moore, Anthony TrueHart, Catherine Ahmad, Carly O'Connell and Fatma NGom. They do an incredible job making this happen and making Mushtaq, Sarah, and I sound as good as possible. And finally, before we leave, thank you so much for listening.​​​

About the Podcast

​Each episode of dotEDU presents a deep dive into a major public policy issue impacting college campuses and students across the country. Hosts from ACE are joined by guest experts to lead you through thought-provoking conversations on topics such as campus free speech, diversity in admissions, college costs and affordability, and more. Find all episodes of the podcast at the dotEDU page.

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