BY JOHN K. WILSON
Pennsylvania House Bill 1532, introduced earlier this month, has received widespread criticism after Jeffrey Sachs on Twitter wrote that “not only does it prohibit universities from promoting any of the usual forbidden concepts, it also prohibits them from hosting speakers or assigning readings that do.” If anything, Sachs and other critics understate the extraordinary amount of censorship this bill proposes.
The first problem is what the bill defines as a “racist or sexist concept” that it proposes to abolish at colleges and schools. Beyond the usual definitions of the term, here are two items that qualify for the prohibition: “The United States of America or the Commonwealth of Pennsylvania is fundamentally racist or sexist.” In this view, criticizing racism is defined as a form of racism. The bill also includes a ban on the idea, “An individual or institution cannot or should not treat individuals without regard to race or sex.” By this logic, anyone who supports affirmative action, or any kind of recognition of racism or sexism, would be breaking the law. HB 1532 prohibits any kind of funding for public colleges that allow ideas that meet these standards.
The more you read of HB 1532, the worse it gets. HB 1532 requires, “No public school district or public postsecondary institution shall: (i) host, pay or provide a venue for a speaker who espouses, advocates or promotes any racist or sexist concept; or (ii) require a student to read, view or listen to a book, article, video presentation, digital presentation or other learning material that espouses, advocates or promotes a racist or sexist concept.” Colleges would be put into a double bind here. The First Amendment prohibits them from banning speakers. But if a speaker expresses any “racist or sexist concept,” then they will be violating this law.
The rules for readings are much worse. According to the bill, if any line in any book in any syllabus in any public college is deemed a “racist or sexist concept,” it is violating the law. It would be difficult for any of the Great Books or great movies to pass this test, and they would have to be banned. Gone with the Wind? Gone.
But it gets worse. The bill also declares, “No instructor, teacher or professor at a public school district or public postsecondary institution shall: (i) teach, advocate or encourage the adoption of a racist or sexist concept while instructing students…” The big additional problem here is the word “teach.” Teachers “teach” lots of ideas they don’t agree with. Teachers “teach” about racism and sexism in order to tell the truth about history. And HB 1532 not only bans leftist ideology that Republican legislators oppose, but it also bans the teaching about racism and sexism.
And it gets still worse: “No Commonwealth, county or municipal agency, school district or public postsecondary institution shall use any funds to express, publish, advertise or promote any racist or sexist concept.” Expressing or publishing a racist or sexist concept is fundamentally different from promoting one, as bad as that restriction was. Under this provision, if a college student newspaper was published using public funds, any racist or sexist concept would be banned, even if the author was criticizing a racist or sexist idea. If a columnist published an opinion essay in a college-funded student newspaper denouncing Donald Trump’s racism and sexism, quoting Trump’s bigoted words would be forbidden.
As terrible as the rules themselves are, the enforcement mechanisms of HB 1532 are shockingly bad. The punishment for anyone at a college expressing (or even quoting) a racist or sexist concept even once is total elimination of all public funding for more than one year: “the cessation of the transfer of Commonwealth funds to the violating entity or institution for the remainder of the fiscal year and for the entirety of the next fiscal year.”
The process for punishing public schools, agencies, and colleges is a nightmare of litigation: “The Attorney General shall investigate any complaint by a resident of this Commonwealth that a Commonwealth, county or municipal agency, school district entity or public postsecondary institution has violated a provision of this act.” Any resident of Pennsylvania can file a complaint against any school or college at any time, and the Attorney General is required to investigate it and issue a public report. Perhaps not trusting the Attorney General to do something this stupid, the bill allows for individual lawsuits, too: “A resident of this Commonwealth shall have standing and a private cause of action to file a civil complaint in a court of common pleas against a Commonwealth, county or municipal agency, school district entity or public postsecondary institution claiming that the entity or institution has violated a provision of this act.” If a court finds one word at a college uttered in violation of this bill, the judge would be obligated to impose a complete ban on funding for at least one year.
This bill, if enacted into law, could paralyze the court system in Pennsylvania. The courts could be flooded with thousands or millions of complaints from one resident seeking to defund the public colleges by complaining about every word in every controversial book taught in every class at every public college in the state. Colleges would be forced to defend every lawsuit or risk losing millions. Every professor, and every speaker would have to watch what they say, and any conservative could defund a college simply by being invited to speak by a student group, and expressing their honest views, and then filing a complaint that they were allowed to express their racist and sexist beliefs.
The AAUP and dozens of other organizations have denounced the attempt by conservative legislators to censor discussions of racism in schools and colleges. The National Association of Scholars (NAS) rejected their statement, writing that “NAS supports those who seek to preserve a system of education where students understand the importance of the American idea.”
state legislatures appropriately pass laws all the time that bear on what and how schools should teach. They do so in part because education is a public trust, and not the private preserve of designated “educators.” Our nation has seen enough of what happens from blind reliance on the “experts” who present their experience as superior to common sense and the insights of others who are outside the groupthink that now dominates in a closed circle of self-ratifying opinions.
With regard to HB 1532, the only groupthink from a closed circle of self-ratifying opinions in violation of any common sense is coming from the right.
It will be interesting to see if NAS is willing to reject the mindless repression of Pennsylvania’s HB 1532. Even if Pennsylvania’s bill is too extreme (and extremely stupid) to be enacted, it reflects the spirit of conservative cancel culture embraced by this wave of laws seeking to prohibit teaching about race. The Pennsylvania bill symbolizes how far right-wing forces in America has descended into the pits of lunacy, anti-intellectualism, and censorship.
There may be another perspective that helps explain this Bill (and Trump’s related EO), if it is seen, not as per se repressive of free speech, but an attempt to “get over” race entirely–flawed though it may be. There is a strong, coherent legal school of constitutional interpretation in equal protection that accurately notes (as former Mass. Supreme Judicial Associate Justice and Solicitor General, Harvard Law’s Charles Fried does in his brilliant “Saying What the Law Is”) that race is not a legitimate category; individuals are, and affirmative action and other racial separation philosophy must have a hard stop at some definite point, in order to force institutions, and the concept of unitary citizenship, forward. This Bill is perhaps one way (although as you note, it may create enormous complexity and cost).
You do, John, as usual, raise the issue of absolute free speech, and academic freedom–quite so–but I wonder if there is a reasonable philosophy of pedagogy that asserts some “neutrality” in identitarianism which may be healthy and productive, and that seeks–like the concept of judicial restraint itself–to refrain from agitation and contention, by de-emphasizing such racial divisiveness? Is “law” the right tool to do that? I tend (or would like) to believe that universities can handle this on their own, with more enlightened leadership–but that is not likely, hence the legal intervention, which otherwise stems from Left activism jurisprudence itself–and their own policy “cooking,” especially in race entrepreneurship, continually institutionalized, especially by the Obama and other Foundations. As for which political interests have “descended into the pits of lunacy, anti-intellectualism, and censorship,” I do not believe any enjoy a monopoly. I discuss this difficult issue further, referenced in National Review last week with linkage to the article in Dissident Prof. Thank you and Regards. https://www.nationalreview.com/corner/crt-invades-the-law-schools/
The idea that we “get over” race by legally banning discussions about it is bad pedagogy, bad philosophy, bad politics, and bad law, in direct violation of the First Amendment. I’m not a fan of the “neutrality” approach, but we should be clear that HB 1532 and similar attacks on Critical Race Theory are the exact opposite of neutrality–they compel government institutions to take a stand and prohibit left-wing positions about race. As for the “both sides do it” claim, I see no evidence of that in legislation. Have there been any laws passed (or even bills proposed) that ban anyone at colleges from opposing affirmative action, that prohibit espousing the belief that there is no systemic racism or sexism in America, or that seek to outlaw right-wing views at public colleges?
While my other post (from June 26) is being “moderated,” I’ll reply briefly to John K.Wilson’s latest post, specifically when he says, “The idea that we “get over” race by legally banning discussions about it is bad pedagogy, bad philosophy, bad politics, and bad law, in direct violation of the First Amendment.”
I’m in substantial agreement with those sentiments but realize that it may be just as harmful to NOT discuss slavery and racism as it is to discuss them in a biased way. Both “left”and “right” spin these concepts, even if they agree about the historical facts. Those facts do not necessarily mandate any particular remedy or solution for the current state of affairs — i.e., defund the police, discourage “Woke” speakers, etc.
A quick question for an article I am writing: George Leef, in the National Review essay you link to, refers to you as “Professor Matthew Andersson,” but I was not able to find an academic appointment for you, professorial or otherwise. Probably my own lack of interwebz savvy, but if you could let me know here where your professorial appointment is, I’d be grateful.
This proposed bill seems to have enough egregious flaws to anger those on the left, right, and center. Its vague and general language SEEMS to be anti-racist and anti-sexist, but the devil is in the details — how its provisions would be implemented in specific cases, by specific teachers, school boards, and state colleges. The fact that it comes from a conservative legislature does not AUTOMATICALLY mean that it is harmful, although it MAY be harmful to teach that “The United States of America or the Commonwealth of Pennsylvania is fundamentally racist or sexist.” MANY American may be sensitive for such a reductionist belief. Doesn’t EVERYBODY have feelings?
I’m no fan of the EXCESSES of “Woke” and CRT pedagogy, especially when it strays from historical fact into ideological advocacy — which it often does. (Even the NY TIMES revised the wording of the 1619 Project to eliminate and/or mitigate some of its more blatant inaccuracies.) So, spinning “Woke” culture’s mission as merely “Teachers “teach” about racism and sexism in order to tell the truth about history” is, as the Bard said, “a consummation devoutly to be wished.” In theory, those words sound fine; In practice, however, (and I’ve seen, heard, and read about such abuses), “teaching” about the horrors of slavery and Jim Crow devolve into talk of “white supremacy,” “white privilege” (I prefer “advantage”), and other ideologically laden concepts which may or my not be accurate descriptions of historical periods or the present day.
As a Film Professor and Literary Scholar, as well as a First Amendment defender, I am especially aggrieved by the POSSIBLE results of this bill: “It would be difficult for any of the Great Books or great movies to pass this test, and they would have to be banned. Gone with the Wind? Gone.” (BTW, well stated, John K. Wilson!) Enough schools and universities have already banned significant films (and even the posters for them) like THE BIRTH OF A NATION (1915), TRIUMPH OF THE WILL, THE BLUE ANGEL, L’AGE D’OR, and every film by Quentin Tarantino, etc. to see how this might be interpreted and where this might lead: No HUCKLEBERRY FINN, no nude art works, nothing “insensitive” to even one student or parent.
In short, I also oppose this bill, perhaps for different reasons than my AAUP colleagues. IMO, in the interests of pedagogy, there is no need to censor (almost) ANY ideas, texts, or words.