BY JOHN K. WILSON

Adam Kissel has written an article in the Federalist titled “The Smart Lawmaker’s Guide To Writing Anti-Critical Race Theory Laws That Will Stand Up In Court.” As scary as that headline is, the full essay is much more alarming in its open advocacy of repression.

Kissel’s piece was in response to a federal judge striking down Florida’s Stop WOKE Act that explicitly silenced professors who teach about “critical race theory” (CRT). But instead of criticizing political censorship by Republicans, Kissel is full of sympathetic advice on how to more effectively censor views he dislikes while evading that pesky First Amendment.

Kissel is no ordinary conservative pundit. He was the top higher education official in the Trump administration, serving as deputy assistant secretary for higher education programs at the US Department of Education. A decade ago, he spent five years working at FIRE (now the Foundation for Individual Rights and Expression) as director of the “Individual Rights Defense Program.”

Yet this essay is an open call for mass censorship on campus by legislation, to a degree never before enacted or even seriously entertained by conservatives in America. According to Kissel, “a college department, a university, or a legislature may, as a matter of content and careful judgment, either require or prohibit modules, units, and courses on any topic.” Kissel takes the necessary job of colleges to approve courses as an excuse for mass censorship. There is a radical difference between a department and a legislature determining what courses will be approved. Colleges must approve what courses go into their catalog, and determine what courses are offered. But colleges never announce a ban on particular courses, and legislatures have no legal power to forbid courses. There is also a radical difference between approving a course and approving all relevant “modules” within a course, a power that no department or college has.

Kissel asserts that “this situation presents no legal difficulty for restricting CRT as described here, since no institution will be interfering with the classroom or a student, and courts normally defer to the professional judgment of scholars in determining the enforcement of academic norms. Legislators will not be judging courses or course materials once they set the curriculum as they think best.”

It is absolutely breathtaking for Kissel to claim that no one will be interfering with the classroom if legislators ban CRT classes. Prohibitions on certain classes or departments is the essence of “judging courses.” The goal of “restricting CRT” embraced by Kissel is the essence of prohibited viewpoint discrimination. And the fact that courts should defer to “the professional judgment of scholars” is precisely why they must strike down the political interference of legislators in those judgments.

How far along the path to totalitarianism is Kissel willing to walk? A really long way. He writes that “the college or legislature may determine merely that CRT is not a high enough priority, and accordingly that CRT fits no module, unit, or course, and that no resources will be used to buy library books in that subject area.” Yes, you read that right: Kissel is calling for colleges and legislators to ban the purchase of library books deemed to have illegitimate subject matter, such as CRT. This is also explicit viewpoint discrimination, since Kissel only wants to prohibit pro-CRT books, and (I hope) would not actually call for a ban on all library books that ever mention race. 

And Kissel’s call for censorship goes far beyond the topic of CRT, as he ominously claims that “CRT is far from the only low-value topic taught at most universities.” According to Kissel, “an ideal solution, then, is to close unserious departments, end lower-priority programs, and stop teaching frivolous courses across the board.” When the knives are sharpened and “serious” and “frivolous” are judged by partisan hacks with no academic qualifications, the inevitable result will be a dramatic reduction in both academic quality and academic freedom.

As a legal matter, Kissel’s approach is wrong. Under the First Amendment, legislative requirements to ban certain classes with “bad” viewpoints are no different than laws banning the expression of “bad” viewpoints in classes. 

Until now, I’ve always admired Kissel, even though I often disagreed with him. In 1999, Kissel and I organized a satirical “fun-in” protest at the University of Chicago, bringing together the left and the right to critique the administration. Kissel beat me in an election to become the first student trustee at the University of Chicago, and I have to admit he was better suited for the position. In 2008, Kissel and I debated FIRE’s approach to promoting free expression at the University of Delaware. When Kissel joined the Trump Administration, I was happy to see a supporter of free speech occupy the top higher education post, where I believed he would reject Trump’s totalitarian tendencies. Kissel was a sincere free speech warrior.

How did Kissel go from being an advocate of free speech at FIRE to becoming the censorship whisperer dispensing advice to Republican legislators on how to ban their ideological enemies? What does it mean for the future of campus free speech when a conservative for free expression can shift so dramatically in the span of a decade that he now calls for a level of legislative repression utterly unprecedented in the history of American higher education?

Earlier this year, Kissel cowrote an op-ed with another alarming title, “When should government infringe on academic freedom in a democracy?” But even in that disturbing essay, Kissel declared that “when the First Amendment and academic freedom protections for scholars at public universities conflict with the democratic principle of majority rule, free speech and academic freedom win.” It’s now clear that Kissel’s reassurances about academic freedom are hollow words.

Kissel’s totalitarian turn represents not merely a personal transformation, but an alarming twist in the entire conservative movement. The Republican party increasingly sees higher education not as a flawed institution needing principled reform, but as an ideological enemy to be destroyed by any means necessary.

John K. Wilson was a 2019-20 fellow with the University of California National Center for Free Speech and Civic Engagement, and is the author of eight books, including Patriotic Correctness: Academic Freedom and Its Enemies and the forthcoming work The Attack on Academia.

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