The Culture Wars Have Come for American Higher Ed. Again.


​​​​​​​​​​​​​​Aired February 9, 2022

PEN America’s Nadine Farid Johnson joins the podcast to talk about the status of “educational gag orders” at the state level, or the legislative efforts to restrict K-12 and college teaching on topics like race, gender, American history, and LGBTQ+ identities. Beyond instruction, we’re also now seeing potential restrictions on tenure, gag orders on reproductive health, and services provided to transgender students. What does the upswing in action mean in the lead up to the 2024 election? Could these gag orders happen at the federal level?

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

COVID State of Emergency Ends in May; Federal Pandemic Aid was Key to Supporting Students
ACE | Feb. 6, 2023

More than 100 House Republicans File Amicus Brief on Biden Student Loan Forgiveness
The Hill | Feb. 3, 2023

Campus Free Speech
PEN America

Education Gag Orders
PEN America

PEN America Index of Educational Gag Orders (Google Docs)

In Higher Education, New Educational Gag Orders Would Exert Unprecedented Control Over College Teaching
PEN America | Feb. 1, 2022

ACE Statement on Open Academic Inquiry (2022)

Florida Rejects A.P. African American Studies Class
The New York Times (sub. req.) | Jan. 19, 2023

Will a Small, Quirky Florida College Become ‘DeSantis U’?
The Washington Post (sub. req.) | Jan. 23, 2023

DeSantis Aims To Cut College Diversity Efforts; New College Ousts President
The Washington Post (sub. req.) | Jan. 31, 2023

Education Issues Vault to Top of the G.O.P.’s Presidential Race
The New York Times (sub. req.) | Feb. 2, 2023

Attempt to Defund UW Gender Studies Fails Again
Casper Star Tribune | Feb. 3, 2023

Hosts and Guests

 Read this episode's transcript

Jon Fansmith: Hello, and welcome to dotEDU, the higher education policy podcast from the American Council on Education. A little bit later in the episode, we're going to be joined by Nadine Farid Johnson, who is PEN America's Washington director. But before we get to that conversation, which sadly I was not able to participate in but was ably managed by my colleagues, I want to say hi to those same colleagues, Mushtaq Gunja and Sarah Spritzer. Hi, how are you guys?

Sarah Spritzer: Hey, Jon. We know you're too busy for us now that you're the new senior vice president for government relations.

Jon Fansmith: I am.

Sarah Spritzer: We understand. You don't have time for the little people.

Jon Fansmith: I'm trying to cut out all my social engagements starting with those I have with you, Sarah.

Mushtaq Gunja: Hi, Jon. Hi, Sarah. Happy State of the Union Day to all those who celebrate. And because you two are super nerds, I know that both of you celebrate.

Jon Fansmith: Of course.

Sarah Spritzer: Very much so.

Mushtaq Gunja: Happy holidays to you.

Jon Fansmith: Thank you.

Sarah Spritzer: Thank you.

Jon Fansmith: A day like this only comes around once a year.

Mushtaq Gunja: There was a year, I think it was 2015, where I had written a paragraph that we were desperately hoping was going to get into the State of the Union, President Obama's State of the Union. We had no idea whether it was. It started with a paragraph that was probably five sentences, and then it got boiled down to two sentences, and then it was a fragment of a sentence, and then it didn't make it into the State of the Union. So I watched for whatever, like 75 minutes with bated breath. Really hoping, and nothing.

Sarah Spritzer: Do we want to bet who's going to be a cabinet member that is in the undisclosed location? That's always my favorite thing to do.

Mushtaq Gunja: Marty Walsh, now that he's going to be wherever his is at.

Jon Fansmith: Yeah, right? The NHL Players Association head, right? Not even the NHL. The NHL Players Association. That is I got to say maybe the oddest transition out of a cabinet level secretary position that I've at least heard of. I don't know if, Mushtaq, you've heard of any others. But man, didn't see that coming anyway.

Mushtaq Gunja: Good for Secretary Walsh. He must have taken a job that he really wanted and is back in Boston, so I'm happy for him.

Jon Fansmith: Yeah, there you go.

Mushtaq Gunja: So friends, should we talk a little State of the Union?

Sarah Spritzer: Yeah.

Mushtaq Gunja: I mean, do we expect higher ed issues? What do we sort of expect on our higher ed, or what do we expect on our State of the Union bingo card tonight?

Jon Fansmith: As we sit here, it's like 2:33. I'm not really expecting really any mentions of higher ed. The thing I think is most likely top of the list there would be either loan forgiveness, which is tied up at the Supreme Court right now, oral arguments at the end of this month. I think the President thinks that's a winning issue. So drawing a contrast between him and the Republicans, maybe that gets in there. But I'm sort of mindful of your point, Mushtaq, about started with two sentences, went to one sentence, became three words. It's really hard to get things into the State of the Union, and this is one where there's not really anything to announce. So maybe that doesn't make it in.

The other one is maybe, either directly or indirectly, minority-serving institutions, something that the administration has given a lot of time and attention to. They have put some money behind, some effort and resources into. It's a good one. It's bipartisan support for those institutions, great institutions. So that might be one where he could claps from both sides of the aisle.

That's what I guess. But I think usually at this time of day, usually frankly by yesterday, if we've got higher ed stuff in there, we start to hear about it. And I've heard zero.

Mushtaq Gunja: If they need a fragment, I'm sure there's a fragment of a sentence from 2015 sort of floating around the West Wing.

Jon Fansmith: Well written, I'm sure. Yeah.

Sarah Spritzer: That they should have to use. Well, I do think that on my higher ed bingo card, I definitely have China and perhaps spy balloon. I am curious whether or not the president will talk about the bipartisan CHIPS and Science Act, which passed last year. So it just passed last year, but I think they consider it to be a real bipartisan win, and it obviously was focused on competitiveness with China. So whether or not that gets referenced, not sure.

Mushtaq Gunja: The other thing I feel could get referenced is sort of the transition out of COVID, right?

Sarah Spritzer: Uh-huh.

Mushtaq Gunja: And the end of the COVID emergency.

Jon Fansmith: Yeah.

Mushtaq Gunja: Jon, are you hearing anything about that?

Jon Fansmith: Well, I think people know that the administration declared last week that they will be ending the pandemic national emergency on May 11th. Interestingly, I don't know that they really wanted to do that, but they saw a vote coming in Congress that would've forced their hand either in terms of publicly opposing it and then vetoing it, or something that might've passed that would've forced them to do it immediately. So this was kind of a compromise. I think they probably would've preferred to push it back a little bit more, but that's where we're going with it.

It would be kind of interesting. You wonder if Biden will take this as a moment to say, "We've turned the coroner." Right? Now, they've got great job growth numbers. They've so far avoided a recession. Inflation is still kind of an issue, but that seems to be softening a little bit. Maybe that's what he says, right? Like, "We've come through it now, and the economy's in a good place. We're ready to move forward, and I'm proud to do X, Y, and Z as part of this next stage of America's greatness." Or whatever. I could see that.

Sarah Spritzer: Yeah. As someone who just had COVID for the fourth time, I'm not really sure if we're actually out of the emergency. But trying to track what has actually ... the flexibilities and the rules that were extended or changed due to the COVID emergency, and understanding what's going to have to happen after May 11th. I don't think it'll be seismic, but for institutions, we're starting to think. Obviously, Jon, that means that they likely won't extend the student loan repayment pause again, right?

Jon Fansmith: Right.

Sarah Spritzer: Because that repayment pause was done under the COVID emergency. For our international students, we had some flexibilities such as the ability to take more courses online as an international student, but in the US. That flexibility is going to go away at the end of the academic year. I think our institutions were preparing for that, but tracking those across the various agencies ... I mean, we've been in this for three years, right?

Jon Fansmith: Yeah.

Sarah Spritzer: I can't remember how long. It seems like 50 years. But there's a lot, that subtle flexibilities. I guess, I'm also interested in seeing what might continue. We saw some flexibilities offered regarding visa interviews for our international students. Is there some way the Department of State can extend those past the COVID emergency? Because it worked really well. It was only for a small group of international students. Is there some way that it can be extended?

Jon Fansmith: Yeah. Sarah, I really like that you talked about that across different agencies. I think for higher ed institutions, the waivers through the Education Department, and they're all over the place. A lot of different things. They got waivers for mostly to ease the transition to online in a hurry and things like that. For a lot of those, the department's actually been pretty clear about how that will work. If you were mid-semester, the waiver doesn't have to expire immediately on May 11th. You can carry that out. Pretty reasonable processes in place.

Around the southern border or State Department actions, other agencies, I think it's a lot less clear what exactly the impact will be of different policies. I think there's a lot of concern frankly about come May 11th, are we going to be prepared to make the transition to the non-waiver world? Frankly, still concerns, lots of unanswered questions. Not saying there won't be bugs or flaws. We've been doing this for three years almost at this point, but it seems like they're slightly better off than some of their colleagues across the administration.

I will say the administration in announcing that also made it very clear it's not going to change student loan repayment. That's still going to start June 30th, which is effectively actually August 30th. It's not going to affect forgiveness. I mean, the Supreme Court may affect forgiveness, but the end of the national emergency won't. The big things they have said they're going to go forward even if they were frankly designed as emergency responses for the pandemic. The pandemic might be over. The proposals are going to carry forward.

Mushtaq Gunja: Yeah, and the Supreme Court is hearing that student loan case on ... Is it February 28th, Jon, Sarah?

Jon Fansmith: It Is. It is February 28th.

Mushtaq Gunja: I'm excited to see it. The House Republicans sent an amicus brief this week.

Sarah Spritzer: Oh, yeah.

Mushtaq Gunja: I saw Virginia Foxx was quoted in an interview saying that the action was totally illegal, which I love because I don't think you need a modifier there.

Jon Fansmith: No half measures.

Mushtaq Gunja: Either it's illegal or it's not. You really can't be totally illegal.

Jon Fansmith: It's such a lawyer opinion. I like a little questionable legality.

Sarah Spritzer: No.

Jon Fansmith: There's some gray area, some middle ground, right? The administration certainly does.

Sarah Spritzer: Yeah, speaking of Chairwoman Foxx, she's having her first hearing tomorrow for ed and workforce, and it's going to be on education in crisis. It's going to cover K-12 and post-secondary education, and I think one of the focuses will be on free inquiry on our college campuses. So it's great that we're talking to Nadine today so I can really bone up on the topic before I go to this hearing.

Jon Fansmith: It's an interesting slate of witnesses, too. I mean interesting in that there's not a lot of information about exactly what the focus will be. The writeup was pretty negative about both K-12 and higher ed. Clearly, the title American Education in Crisis doesn't imply that they think things are in good shape, but you've got a school choice advocate. You have someone who is the head of a community and technical college system, so clearly some workforce signs. You have President Scott Pulsipher, president of Western Governor's University that we know well here at ACE who will be testifying at the higher ed level.

So really, the Republicans have put one witness from each level, so they're looking at a very comprehensive kind of approach to education. The Democrats, the minority witness, they have Jared Polis, former member of the House of Representatives, now the governor of Colorado. When he was in the House, he was a pretty outspoken advocate of public education. So clearly there in a lot of ways, too. I think particularly at the K-12 level, he was a little bit more complicated position. It's harder to pin down one area or the other on higher ed. He had a lot of interesting viewpoints, but certainly on the K-12 side, you know what you're going to get from him.

Mushtaq Gunja: Actually, I think the witnesses are interesting. I think that they in some ways demonstrate what is, I think, a core strength of American higher education, which is the diversity of our system, right?

Sarah Spritzer: Yeah.

Mushtaq Gunja: I mean, if you want a particular type of career education, we've got that for you. If you want a little bit more of a four-year but straight to career, Scott and Western Governors and others, you can do that. If you want a more classical liberal arts education, you can go to many institutions. It's actually a decent segue to I think a conversation we're about to have with Nadine about what's happening at New College and the public liberal arts education in Florida. I'm just troubled at the idea that we're in crisis somehow in higher education when in some ways I think our institutions, especially in the wake of the pandemic, have done just such a nice job of offering all sorts of different entry points and off ramps. Can we do better? Obviously. Are we in crisis? I don't know. I think I would disagree with Chairwoman Foxx.

Jon Fansmith: I agree with you entirely. I feel like at any point in the last 25 years you could find somebody saying American education is in crisis, right? There is nothing unique about the position we're in other than to your point, we just came out of the pandemic, which was a really clarion ... It was a really strong moment for American higher education. We weathered the pandemic quite frankly far better than other sectors of the education world in terms of how we responded to the pandemic, how quickly we transitioned, how well we served our students, how frankly efficiently we managed the federal funds that were made available.

This is actually a good time to look at higher education from my perspective, because we've done remarkably well. Like you said, clearly lots of room for improvement. Lots of different areas, ways you can be better. I'm less worried about a crisis here. I'm more worried about what is a good path forward. Hopefully, we'll get some of that from the hearing tomorrow, too.

Mushtaq Gunja: Yeah. It's good witnesses.

Jon Fansmith: Yep, agreed. Well, we have a lot to talk about, or I should say you both have a lot to talk about with our guest, Nadine Farid Johnson. That will be right back after the break. I myself am looking forward to hearing it, so have fun with that.


Mushtaq Gunja: We are back, and we are joined today by a very special guest, Nadine Farid Johnson, who is PEN America's Washington director. Nadine has had just a stellar career thinking, about teaching, about working on a whole set of issues related to democracy. Nadine previously served as executive director at the ACLU of Kansas. She's an attorney by training. She's been a professor of many things, but especially of constitutional law at Gonzaga. We are so lucky to have you, Nadine. Thank you for joining us.

Nadine Farid Johnson: It's my pleasure, Mushtaq. Thank you so much.

Mushtaq Gunja: Nadine, I am quite familiar with PEN America's work. I've used it quite a bit in my career. But for those in our audience who don't know much about PEN America, would you tell us just a little bit about what the organization does and what you do there?

Nadine Farid Johnson: Yes, absolutely. So PEN America is a 100-year-old organization that is devoted to the intersection of literature and human rights. We do that to defend free expression both in the US and around the world. We've been doing this like I said, for 100 years, and we are working not only in the US but also abroad, looking at what happens with political prisoners, authoritarian governments, effects on writers, journalists, bloggers, others who are punished for their speech. In the United States, we also have a very robust education team that focuses on campus free expression and the K through 12 experience as well.

Sarah Spritzer: So Nadine, that's a really wide swath of issues to try and cover. Obviously, in the world of higher education, this is a very, very busy time, but can you talk a bit about how PEN America is engaging right now on issues impacting our college campuses?

Nadine Farid Johnson: We've been doing quite a bit of research particularly in the legislative space, trying to analyze what is happening across the country particularly in the past couple of years with respect to bills at the state level that purport to seek to control what's happening in the higher ed space. We have seen this really become quite a movement really starting in 2021 in terms of looking at efforts to control curriculum, efforts to control institutional autonomy and efforts to what really amount to chilling academic freedom and speech on campuses.

Sarah Spritzer: Why do you think 2021? Is there something about that year or something that happened that caused PEN America to look more closely at these issues?

Nadine Farid Johnson: Yes. We actually saw an absolute explosion of bills across the United States that were working to seek to prohibit what they're calling divisive concepts. These are essentially looking at what happens with teachers and trainings ... trainers, excuse me, operating in K to 12 schools and public universities and in workplace settings. What we saw was that between January and September of that year, 24 legislatures across the US introduced 54 separate bills that were intended to restrict teaching and training in those institutions. And since then, the numbers have just been absolutely staggering. We've seen 193, what we call, educational gag order bills that were introduced in 41 legislatures since January of 2021. Several of these have become law. And what we're seeing just in this nascent legislative session in 2023, already 19 laws have been introduced in 11 states that are focused solely on higher education. So the trend is really continuing in force.

Mushtaq Gunja: Yeah, yikes. So Nadine, you used the term divisive concepts. I think you also used the term educational gag orders. I wonder what are the types of bills, what are the types of issues that are included in that umbrella for PEN America?

Nadine Farid Johnson: We use the term educational gag orders because these bills are designed, or appear to be designed, to chill academic and educational discussions and to impose a government dictate on what teaching and learning can happen in the institutions. These bills target discussions of race and racism, gender, and American history. Oftentimes, you will hear, especially legislators, refer to the concept of CRT, saying that should not be taught in schools. It's expanded now to include gender studies in many places. So while most of these bills have continued to target teaching about race, there is also a growing number that is focused on LGBT+ identities, and a plethora now what we're seeing of several bills that are emulating what we saw in Florida last year in terms of the Don't Say Gay bill.

Sarah Spritzer: Nadine, you talked about the number of bills being introduced on these topics. Is this something that you're seeing across all the states in the United States, or is this coalescing in the South? Is it only in red states? Where are people seeing this kind of legislation being introduced on the state level?

Nadine Farid Johnson: We are seeing this introduced all across the country. At last count, it was 41 different states. So it really is something that is sweeping the country. We've actually looked at this at PEN America as part of a bigger picture, a bigger movement to really control what's happening in the classroom. If you look at our work on book bans in addition to educational gag orders and seeing what's happening in really the K through 20 sphere, looking all the way from kindergarten to university, there really is what seems to be what we're calling an ed scare, an effort to really incite a moral panic and to criticize and put a critical and closed lens on what's happening in the classroom all the way through the spectrum, from early education and through the university.

Sarah Spritzer: I mean, I can remember even when I was growing up, like book bans in the K-12 classrooms, those types of actions, concerns about what children were being exposed to, especially at the public school system. Is it the same? Is it the same concerns at our institutions of higher education, or is it slightly different do you think? Are they the same exact issues, and are they playing out the same ways? Because obviously, K-12 and post-secondary education is very different. You're not required to go to post-secondary education. We have private and public institutions. They're governed in different ways. So can you talk a bit about any differences you're seeing between those two spheres?

Nadine Farid Johnson: We're actually seeing now an effort to replicate what was being introduced previously in the K through 12 sphere in the higher ed sphere. That is particularly concerning because of what higher education means to this country. Higher education is one of the last bastions of free inquiry and open conversation in our society. As we become more and more polarized, attacks on the autonomy of those colleges and universities do really constitute what we would call a crisis of campus free expression and, frankly, of the democracy that it serves.

Mushtaq Gunja: It's interesting, Sarah, because certainly I think K-12 and higher ed are governed differently. You have a choice on the higher ed side. What's interesting about it, I think, is that in this world in which we see more and more dual enrollment schools, advanced placement courses, that line of what is college or college-level courses and what's taught in high school seems a little blurry. I just think about this, Sarah, because we just had this debate around this African American history class, this advanced placement class that Florida has decided not to take. Nadine, are those the sorts of things that you're tracking over at PEN America?

Nadine Farid Johnson: Yes, we are tracking all these different instances of efforts to try to control the curriculum, to change the curriculum, to have a say in terms of what is being taught in schools.

Mushtaq Gunja: Are there places in particular, bills in particular states that you're particularly concerned about, or is this just really a broad range?

Nadine Farid Johnson: Actually, both, because you can see that there are particular models that seem to beget progeny, if you will, from certain states. We are seeing quite a bit of activity in Florida, which I'm happy to discuss. We are maintaining an index of these bills because of the ubiquity of these efforts at the state legislative level where, as I mentioned, just in the past few weeks since the 2023 sessions started, we've already seen 19 bills across 11 states looking at higher education. There really does seem to be an effort to address what's happening at the college level and to encroach upon the independence of the institutions and of the professionals in the institutions.

Sarah Spritzer: That's a really helpful resource, Nadine. We will definitely link to that in the show notes. But you touched on this idea of model legislation and that some states are watching other states that may be more active in this space. Obviously, you mentioned Florida before. Just recently we saw some major changes at New College of Florida, which I think caused all of us to kind of sit up and take notice because they seemed pretty on the extreme side. They're actually looking at the governance of an institution beyond what does governance have to do with Critical Race Theory or the topics being taught? So can you talk a little bit about why it's important to watch that? Do you think that that's something that other governors or other states may try and replicate? Why is that important?

Nadine Farid Johnson: It's a really good question. As you note, New College really has undergone and is undergoing a complete overhaul at the hands of the leadership in Florida. Governor DeSantis appointed six new trustees to the New College board on January 6th. 25 days later, they've all voted to fire the current president without cause during a meeting. And now, the news has come out just yesterday that the former Florida Education Commissioner, Richard Corcoran, will be installed as the president as early as February 13th. There will be a meeting scheduled to review his contract.

This happened really in the blink of an eye. These six new trustees came in. They were appointed, as I mentioned by the governor, and with the state of intent to, quote, "overhaul and restructure the New College of Florida," which is, I should point out, a public liberal arts institution.

Sarah Spritzer: What do you mean by restructure?

Nadine Farid Johnson: Those are the words of the leadership and of the new board. Our understanding is that they're looking to replicate what they see as a model in universities looking at Hillsdale College, which is a private loosely affiliated institution in Michigan. Really, what we're seeing here with this and why it matters is that this is an effort to substitute the dictates of elected officials for the autonomy of a higher education institution. If this succeeds, you are going to see the core freedom that is the vital prerequisite of academic research in teaching to be dissolved. That should really concern anyone irrespective of their political leaning, irrespective of their thoughts on what is taught at New College or any other institution. The fact that this would be a government overhaul of an institution of higher education should be disconcerting to anyone.

Mushtaq Gunja: Nadine, what's your sense of how the faculty are likely to react at places like New College, but others in which states are dictating what can be taught in the classroom? You have been in the classroom. I am currently teaching a course. I mean, I just can't imagine that somebody could tell me, "You have to teach Rule 404 of the Federal Rules of Evidence in a particular way using particular examples, and you just have to stay away from mentioning the use of, I don't know, race or gender identity or anything else." I mean, how are the faculty that you're talking to thinking about all of this?

Nadine Farid Johnson: You're absolutely right. It's almost unfathomable to think about how professors are going to do their jobs day to day. At its base, this is having a chilling effect to put it mildly. Professors are not able to conduct their classes in the way that they see fit. And because these rules, these regulations, and to some extent where they've been passed these statutes, they're being interpreted quite broadly in a way that will actually further chill academic freedom, because professors don't really know at what point they will be crossing a line.

Let me give you a couple of examples if I could about some of the actions that have been taken recently, particularly in Florida that I think will serve to benefit those who wish to emulate it. Some of the language here is I think really chilling. They want to, quote, "realign general education core courses to make sure they provide historically accurate foundational and career relevant education, to not suppress or distort significant historical events or include a curriculum that teaches identity politics." They want to prohibit higher education institutions from using any funding regardless of source to support DEI, CRT and other, what they call, discriminatory initiatives. So think about this from the classroom and administrative perspective. There really is an absolute lack of freedom in how courses are conducted and how the institution is able to run itself.

Sarah Spritzer: Mushtaq asked about the impact on the faculty, and that is incredibly chilling and worrisome that you're being told, "You can say this," or, "You can't say this" in a classroom. What about the impact on college students? What are you seeing from the PEN America perspective?

Nadine Farid Johnson: There is absolutely a detrimental effect on college students, in part because they are caught in the middle of this. You have students here, they're paying tuition to go to a school that had what they thought were going to be the major in which they focus or the atmosphere in which they wanted to engage, and that is being eroded from them in a way they can't control.

I think there's also something to be said about how these bills writ large. We're looking at them from higher ed, but also how it affects higher ed from the K through 12 angle. As these bills more and more seek to narrow what is taught in middle school in high school, that's also going to affect students' abilities to matriculate and to actually attend a university that they wish, and for the university to keep up its accreditation in a way that will satisfy the broader rules and regulation that govern that aspect of higher education.

Mushtaq Gunja: It's really interesting, Nadine, because it feels to me ... You mentioned a couple of minutes ago, I think alluded to this worry about First Amendment, freedom of speech sort of set of problems here. These laws are written pretty vaguely, and they could affect a whole range of issues. I think about that as I think about DEI sort of broadly, right? I mean, I hope and I think that most professors, most of the time have at least the equity and inclusion parts of DEI forefront all the time. They are trying to create welcoming, hospitable learning environments so that students can learn in the classroom and feel comfortable in the classroom.

I don't even know how to pull DEI out of all of the work that our professors and frankly all the people who are doing student advising, all the functions on campus. I mean, we are trying to help students learn, grow, matriculate, and then graduate from our institutions. I don't even know how you pull DEI out. I feel like these bills have significant constitutional problems, or at least over breadth problems, but I may just be editorializing. Nadine, what do you think about that?

Nadine Farid Johnson: I think that they are certainly ripe for challenge in many respects. Look, we know from Supreme Court jurisprudence from years back, and you know this, Mushtaq, the state is not to cast orthodoxy over the classroom. That is as true today as it was 60 years ago, and we should be respecting that in the classroom. We should also be respecting the fact that students have a right to access information. These bills taken together do not permit either of those principles to be respected.

The other aspect here I think is really important is that as we look at these bills and the way that they are, as I mentioned, really targeting higher ed now, a lot of them are also looking at not only what professors can do in the classroom, but also the career path of these academics. A number of these bills are looking at the tenure-review process. They are looking to prohibit tenure. They are talking about allowing for a private rite of action if a professor or something in a classroom comes up that is seemed to be ill-advised by someone who is watching. These aspects of these bills really are working to crowd a professor in a way that they really cannot do their job, nor do they know are going to have a job in a particular timeframe after this as well.

Sarah Spritzer: It's interesting, Mushtaq and Nadine, that you mentioned the court cases and that these are likely ripe for court cases. At the end of the Trump administration, we saw a couple executive orders that were kind of on these very similar topics, maybe not as broad. One on diversity, equity and inclusion for organizations that received federal funding, which obviously institutions of higher education would be included under. And there were orders about not having any kind of DEI training that included Critical Race Theory or a plethora of different topics that might be included in some sort of DEI training. Those were taken up by the courts. Obviously, then when the body administration came in, they overturned that executive order. So I guess the court cases didn't go forward

But since you're both lawyers, I would ask you, how would this play out in the courts? Would you have to sue on every single piece of this legislation, or could we say something more broadly about academic freedom and free inquiry at our institutions? Because it's obviously going to the root of that matter even though it's on a bunch of different topics.

Nadine Farid Johnson: I think as an attorney I'm going to take the risk-averse angle and tell you it depends on what the language is of the bill. But the question is a good one, particularly because as you saw it with the executive order that came out toward the end of the Trump administration, it was really looking to target DEI and to define that in a way that was incredibly broad. The interesting thing about this is that it was not only about public institutions. What we're seeing here is actually an effort to also go after private institutions. You mentioned the training aspect of this, which is a critical part. It's not only that we're looking at higher education institutions or public institutions. We're also looking at private businesses and saying, "Well, you cannot conduct trainings on your premises as part of your HR or your company culture, whatever it is you want to call it in your own private entity."

I think it's really important to note that after the initial -- I believe it was after the initial executive order came out -- 160 different trade associations and nonprofits, including the US Chamber of Commerce sent letter to President Trump and said, "You need to withdraw this, because it's going to create confusion. It's going to create uncertainty, and it's going to lead to non-meritorious investigations and hinder the ability of employers to implement these programs."

I think that kind of comes back to Mushtaq's point as well earlier about how equity and inclusion have really become at the fore of any academics classroom in order to ensure that there is that openness of inquiry and that free exchange of ideas so that students can be exposed to different ideas and to learn from one another.

Mushtaq Gunja: I think on the legal question, Sarah, it's a really good and hard question. I think that some of these bills could potentially be challenged on their face, because they're sort of facially invalid. I think we'll have to see how some of the application is carried out in states, because some of these bills could be constitutional as applied. We've got state constitutional issues. We've got federal constitutional issues. Unlike with the federal executive orders where you can challenge in one fell swoop at the federal level, if there are indeed 41 state bills, not that 41 will get passed, but there are several state bills, then you've got to really think about a state-by-state litigation strategy, which is hard and complicated. You could see some uneven results.

Sarah, the other question I guess I have for you, actually turning it back is, I'm curious if you see any tension between what some of these states are promulgating and some federal guidance and direction, right?

Sarah Spritzer: Mm-hmm.

Mushtaq Gunja: I mean, in the new Biden administration, do these state laws, the ones that you've tracked, do they seem to be able to be compatible with our rules around FSA and other ed regulations? Are there places where there might be tension, or do we not know?

Sarah Spritzer: Well, the other executive order related to this issue was one put out at the end of the Trump administration also on free inquiry on college campuses, and the Department of Education had actually moved forward to implement that. I think there were still some court cases maybe pending on it. That rule is still standing at the Department of Education. And in fact, we know that the Biden administration is going to promulgate some new rules around free inquiry on our college campuses. Again, similar to the DEI one, it's tied to your ability to get federal funding. So that's kind of how you get to the privates and the publics. But I think that there are members of Congress, especially Chairwoman Virginia Foxx in the House, who is specifically interested in this and looking at these issues on a federal or a national level.

And Nadine, I'm struck that when you talk about these bills, there's also a piece of accountability in there, right? It's not just saying you can't teach CRT or you can't teach a DEI course. You also have to have career readiness, right? The degree has to demonstrate that it's worthwhile, which is something that I think that there's a lot of bipartisan agreement on in trying to get accountability for institutions of higher education and understanding what a student is getting for their degree. So in some ways, this seems like it's a more sophisticated conversation, right? They're not just saying you can't teach CRT. They're also saying, "But what are you teaching? Can you demonstrate that?"

I think that that's also a change than, say, what we saw in the culture wars in the early 2000s where there was this concern about multicultural and gender studies. So I guess, Mushtaq, I would say it's something that we're watching really closely as the 118th Congress kicks off. I also think that there could be some bipartisan interest in looking at some of these things about what is being taught on our college campuses, not maybe because they don't agree with free inquiry, but understanding the value of higher education.

Nadine Farid Johnson: May I comment on that quickly, Sarah.

Sarah Spritzer: Sure.

Nadine Farid Johnson: I think you're making a really important point. I also would sound a note of caution, because if you have an inquiry that says we're going to examine what's being taught on campuses, you could very well have a situation in which we saw in Wyoming last year where the Senate actually voted to dismantle a gender studies department, finding that it did not teach something that was worth what the Senate thought should be being taught at the university level. Now, it did not pass ultimately. And I will say there was a bipartisan outcry against it from members of that governing body saying, "This is really not our place. Are we really the ones to say what is valuable and what is not?"

But I do worry that if these bills are interpreted in a way, or if forthcoming efforts at the federal level are stated in a broad enough manner, you would have a situation in which you have a legislator or a legislative body deciding what is valuable. And in the higher ed space, that really does give me pause from an academic freedom and open inquiry perspective.

Sarah Spritzer: Yeah. As a proud humanities graduate, it concerns me also when I hear people say humanities degrees aren't worth it. They are worth it, and they teach really important skills.

Nadine Farid Johnson: English and philosophy right here. So yes, I'm right there with you.

Mushtaq Gunja: Nadine, Sarah, heaven knows I'm miserable now. So what in the world are we going to do about this going forward? I feel like we've now identified what some of the threats are. How are we thinking about tackling it?

Nadine Farid Johnson: I would say the first thing obviously would be a little bit of a plug here. But really, PEN America is keeping up on these issues. As I mentioned, we have an index. We are doing reporting. We want people to be educated about what is happening. I would encourage people to first understand what the issues are. And of course, reach out to us with questions. This is something that unfortunately we're seeing. It really is a tide that is continuing to flow, and we expect it to continue. So I would say first educate yourselves about what actually is happening in this space.

Sarah Spritzer: And Nadine, I know this is one of those issues where it takes a village, right?

Nadine Farid Johnson: Yeah.

Sarah Spritzer: We're so happy to be working with you. I know our colleague, Steven Bloom, has been very much engaged with PEN America in putting together a resource guide that we're going to make available to institutions of higher education that talks about some of the good work already being done, and then obviously that we will be able to build on going into this year. I think that your call to people who are concerned with this issue, to educate themselves and learn about it. Are there any other resources you want to mention to our audience or that we can link to? I know you've previously worked for the ACLU. Are there other groups that are very much engaged in this work?

Nadine Farid Johnson: We are absolutely delighted to be working with you all as leaders in this space, and it's really an honor to be collaborating on the guide and other matters together. The ACLU does have resources as well as the AAUP, and I would encourage listeners to look at both of those guys to be able to learn more about what's happening and what they can do.

Mushtaq Gunja: Well, that's great. We will definitely both link to available resources in our show notes, and I know that we are coming out with this resource guide in the coming weeks. We will make sure that we plug it in future podcasts.

Nadine, thank you so much for being with us and for all of your work in this space. I think it will take, as Sarah says, a village. It'll take all of us. I mean, I think it seems like it's going to take all of our listeners, all working together to be able to help demonstrate the value of higher education, what's really happening on our campuses, and to be able to push back a little bit on some of these bills to the extent that they get a little bit farther along in the process. Thank you so much, Nadine, for joining us.

Nadine Farid Johnson: Oh, thank you so much. Absolutely my pleasure.

Sarah Spritzer: As always, you can check out earlier episodes and subscribe to dotEDU on Apple, Google Podcast, Spotify, Stitcher, or wherever you listen to your podcast. For show notes and links to the resources mentioned in the episode, you can go to our website at 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 finally, a very big thank you to the producers who helped pull this podcast together. Laurie Arnston, Audrey Hamilton, Malcolm Moore, Anthony Truehart, Rebecca Morris, Jack Nicholson, and Fatma NGom. They do an incredible job making this happen and making Jon, Mushtaq, and I sound as good as possible. Finally, thank you so much to all of you 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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