BY JENNIFER RUTH
What does looking back at the fate of anti-CRT legislation teach us about the limitations of the law for saving academic freedom?
If you recall, towards the end of his first administration, Donald Trump issued the Executive Order on Combating Race and Sex Stereotypes. It was part of a backlash against the racial reckoning prompted by George Floyd’s murder in May 2020. It was rescinded once Biden took office, but it reappeared at the state level as Republican legislators proposed a staggering number of bills over the following months and years. Between January 2021 and June 2023, the Trump executive order metastasized into at least ninety-nine bills proposed by right-wing politicians in thirty-three states, finding great success in states with Republican-dominated legislatures. These were, of course, the infamous educational gag orders, many of which targeted critical race theory and “divisive concepts.” I remember very well how preposterous these gag orders seemed at first and how many thoughtful people had trouble taking them seriously because they believed that such legislation could never survive first amendment challenges in court. Yes, it may take a minute to strike these laws down because courts move slowly, people acknowledged, but eventually the courts will restore sanity and this form of subnational authoritarianism, as I called it at the time, will be vanquished.
Today, we know that authoritarian control over higher education spread to blue states during the last half of Biden’s term, and now, during Trump’s second administration, has the entire country’s colleges and universities in its grip. It is important to recognize that this is not primarily because the law upheld the educational gag orders—indeed, in some cases, first amendment challenges were successful or partially successful (though they weren’t in others—see the voiding of the injunction against banning CRT in Arkansas by the 8th Circuit Court of Appeals). Rather, the spread of authoritarian—or fascist, depending on which term you prefer—control over higher education has spread because there are many levers and mechanisms beyond legislation.
One way of putting this recent history into conceptual relief is by asking: Why does a widespread prohibition on teaching critical race theory persist when some of the specific legislation has been defeated in the courts? Despite first amendment injunctions against anti-CRT laws, states maintain restrictions through structural and financial controls. The most obvious power is that of the purse—defunding can accomplish some of the same goals as outright censorship. So can new controls around funding, like performance funding tied to graduate employment metrics that disadvantage humanities programs. There are also statutory curriculum mandates that require inclusion of “Western civilization” or “patriotic education” and prohibit courses from fulfilling general education requirements if they contain CRT-related content.
There are governance levers by which politically activated boards of trustees/boards of governors control institutions and set policy. Boards’ ability to hire and fire presidents also creates incentives for university administrators to prioritize the elimination and/or starvation of some programs. Politicized boards influence faculty hiring priorities. New post-tenure review systems increase risk for faculty who teach in what are now under the Trump administration considered politically sensitive fields. We also have the federal and state attempts to transform accreditation so as to align agencies with right-wing priorities.
And what about the astounding number of organizations that mobilize and help fund student and parent complaints and threats? Some of these groups also target individual professors, creating a chilling effect that leads almost inexorably to some level of self-censorship. Targeting individual professors may look like doxxing on social media sites. It may also look like public records requests in which individual professors’ universities are legally obliged to hand over a faculty member’s emails. To offer a personal example, Defending Education (formerly Parents Defending Education) has paid Portland State University $10,329.26 for all of my emails containing certain words (such as “resistance” and “Trump”) from 2023 to the end of spring term 2025. In an environment in which many of these organizations have extremely close ties with political appointees in federal agencies like the Department of Justice, these records request can have a deeply intimidating effect.
I agree with my colleague Jonathan Rees when he says “Don’t Believe the AI Hype!” That said, I confess that I asked ChatGPT to make me a graph: state_control_levers_infographic. It charts the flow: “Court strikes down law → States pivot to funding, boards, curriculum mandates → Universities self-censor → De facto ban remains.”
Far from being able to save us, the law is itself the victim of the tortured logic of a federal administration trying to turn rule of law into rule by law. The most spectacular arrow in this quiver is the Trump administration’s upside-down interpretation of discrimination law. It has, as this Washington Post article recently put it, flipped the script:
Under the Biden administration, schools were told that failure to accommodate transgender students was illegal sex discrimination under Title IX. Now, they are told the opposite: Allowing transgender girls and women access to female bathrooms, locker rooms and sports teams is a violation of the same federal law.
And some of you are likely to have seen Nikole Hannah-Jones’ article “How Trump Up-Ended 60 Years of Civil Rights in Two Months.” And, of course, we’re all keenly aware of the weaponization of Title VI to suspend, revoke, and refuse federal funding to colleges and universities on the basis of their alleged indifference to antisemitism. On this last point, see this article by Jason Brownlee in the Texas Journal on Civil Liberties and Civil Rights, which offers an excellent analysis of the “conjunction of OCR [Office of Civil Rights] policy and the expansive definition of antisemitism as a constraint on pro-Palestine organizing through the spring 2024 encampment movement that radiated out from Columbia University.”
There are doubtlessly other levers I’m not thinking of at the moment. The point is that the law won’t save us. It has never been a reliable guardian of academic freedom. Rather, academic freedom, in the now-famous words of legal scholar J. Peter Byrne, “floats in the law, picking up decisions as a hull does barnacles.” We have relied heavily on norms—like the once-respected understanding that nonexperts should not dictate curriculum—to protect our academic freedom, but the norms have been shattered. We need strategies to disable the many levers that enable political interference. Figuring out these strategies and acting on them depends on our ability to organize ourselves as a sector and, at times, to join forces and share information with other sectors under similar forms of assault, like the federal civil service.
Jennifer Ruth is coauthor, with Michael Bérubé, of It’s Not Free Speech: Race, Democracy, and the Future of Academic Freedom and coeditor, with Ellen Schrecker and Valerie Johnson, of The Right to Learn: Resisting the Right-Wing Attack on Academic Freedom. She is the codirector, with Jan Haaken, of the film The Palestine Exception: What’s at Stake in the Campus Protests?
Justice Learned Hand warned that liberty is not about constitutions, laws, and courts, but rather is something that lies in the hearts of men and women. When it dies there, nothing will save it. Liberty is not the unchecked “freedom to do as one likes,” because this leads directly to a society wherein freedom is the possession of only a savage few–as we’ve seen with the American oligarchy masquerading as a democracy. The people, including and especially academics, took their freedoms for granted even when they saw they were largely myths. They hoped for the best and deceived themselves and everyone else. The significance of Trump’s rule is that at least half of the country no longer has any confidence in how things are done and run.
Little is being done about that by academics howling for a return to the bad old days of smug comfort and neglect of public duty when academic freedom was really licentiousness. The bad news is that there’s no chance of a return to that. A new paradigm has to be devised and implemented. Real academics like Noam Chomsky became the rare exception rather than the rule, and I see no sign that such intellectual poverty is of any concern to academe. Half the country has said no to that approach to the countries problems.
Gerry Spence (US attorney of ‘Silkwood’ fame) summed it up: “Although we give lip service to the notion of freedom, we know the government is no longer the servant of the people but has become the people’s master. We have stood by like timid sheep while the wolf killed–first the strays, then those on the outer edges of the flock, until at last the entire flock belonged to the wolf.” The bleating has to stop so that something constructive can be done to arrest the descent into chaos.
I agree with what you have said, particularly about faculty (and others) taking their freedoms for granted, .and I appreciate that you said it very well. One thing that was left out: Faculty freedon has been diminishing since the 1970s because there have been fewer and fewer full time tenured or tenure track faculty who had or anticipated some protection.
Full time faculty have been complicit in the process by which the majority of faculty are now contingent part-timers because having a lower class of faculty over whom the full-timers presided consolidated their power. Having a large number (in many institutions, the majority) of faculty with NO protection for their speech or activism (since they do not need to be dismissed, triggering due process, but merely not be appointed for subsequent terms) leads to less faculty influence and more control from the administrators who can be more easily be bullied. In this way, faculty have created at least part of the situation in which they have little or no control over their own fate or that of their students and institutions.