Last week, in a meeting of the Assembly Committee on Colleges and Universities, Republicans moved forward a bill that would ban teaching the harms of racism while simultaneously holding a public hearing on a bill to protect free speech on campus.
Democrats and university faculty see the combination of the bills — both of which are unlikely to make it past Gov. Tony Evers’ veto pen — as inherently contradictory, hypocritical and sloppy.
The bill to ban teaching about the harms of racism, which is part of a nationwide Republican effort to root out instruction in so-called critical race theory, would cause university campuses to lose state funding if certain topics about race are taught in classes or employee training. Republicans have introduced a number of bills on the issue taking aim at all levels of education from kindergarten to graduate programs as well as training for government employees.
The free speech bill, AB 735, would allow anyone to bring a cause of action before a legislative committee if they believed their protected speech was stifled on campus.
“I believe the structural racism bill is doing precisely what the free speech bill would outlaw,” Michael Bernard-Donals, a professor of English and Jewish studies at UW-Madison, says. “You can’t have it both ways. You’re either for free speech on the campus or you’re not … To in one breath say these are the concepts we believe are out of order on the campus and with the next breath say we’re trying to promote free speech and creating ways for faculty, staff and students to bring charges against someone who violates free speech is hypocrisy at best and sloppy legislation at worst.”
The free speech bill prevents University of Wisconsin institutions from restricting “noncommercial speech protected under the First Amendment,” and creates a number of other rules on how campuses must treat speech. While Republicans have spent much of the last year expounding on their belief that the subject matter of “critical race theory” is objectionable, a professor teaching a lesson about how American institutions are shaped by racism is protected by the First Amendment.
If both bills were passed and a university stopped a professor from teaching about racism, that professor could theoretically bring an action under the free speech law.
Rep. Katrina Shankland (D-Stevens Point) says she sees the bills in conflict with each other and believes that exact situation could play out and that Republicans haven’t thought through all the consequences of either piece of legislation. The free speech legislation could lead to complaints about sensitivity training, she says
“If the so-called campus free speech bill were to be signed into law, we would see individuals who would say, ‘I’m filing a cause of action against this institution because they used to do these trainings,’” she says. “‘My ability to speak about these issues is restricted as a professor, as a staff member, as a student.’ I think any time there are causes of action regarding speech, we need to be careful about people weaponizing it for their own political gain.”
Bernard-Donals adds that the combination of these bills show the intention isn’t to protect academic freedom or First Amendment rights but to restrict speech on campus to protect the feelings of Republicans.
“Put the structural racism bill together with the free speech bill and the only conclusion I can come to is that there are some conservative snowflakes on this campus who are afraid structural racism is going to hurt their feelings,” he says.
But Michael Moscicke, research assistant for one of the free speech bill’s co-authors, Rep. David Murphy (R-Greenville), says Republicans don’t see the conflict because they don’t believe the topics prohibited under the critical race theory bill count as protected speech under the First Amendment — though he adds these are issues that would be worked out in court.
“If the [critical race theory] bill were to pass and be signed into law and our bill would be as well, it’s likely the specific issues in the [critical race theory] bill would not be permitted because they aren’t protected speech,” Moscicke says. “I imagine it would have to be as applied by a court. We can’t necessarily always be the arbiter of that. It would certainly be up to interpretation.”
Shankland and Bernard-Donals say they have a number of other issues with the free speech bill.
Shankland says allowing causes of action to be brought to a legislative committee threatens the separation of powers between branches of government. The Legislature’s role is to make laws and the judiciary’s role is to interpret them. If the litigation of First Amendment issues is moved to a legislative body, that’s an infringement on the role of the courts, she says.
“That shows a lack of understanding of the three branches of government,” Shankland says. “To deputize a legislative committee to decide what is free speech, that’s not the job of a Legislature. The judiciary’s job is to interpret the law and determine based on the facts. It’s not the Legislature’s role.”
The bill also allows state grant funding to be taken away from campuses if they violate speech, which Shankland says could unfairly punish an entire campus for the action of a few individuals while harming the overall financial well-being of already cash-strapped schools.
“If the penalty is such that on campuses that have one or two violations, the Wisconsin grants would be taken away and they’d have to still pay out the financial aid to students, I question if that’s legally allowable and if they have the funds to do so,” she says. “Many of the campuses run very low revenue accounts that have often been restricted by the Legislature. This is not only highly punitive but legally questionable.”
Bernard-Donals says he thinks the bill could result in the opposite of its intended effect. If anyone on campus can haul a faculty member in front of a Legislative committee for a perceived infringement on speech, faculty members of all sorts of political persuasions may feel the need to self-censor.
“I think the bill will have a chilling effect on faculty and students,” he says.
When the critical race theory bill was passed by the university committee last week, Rep. Robert Wittke said if it passes the Legislature it will certainly be vetoed by Evers. Shankland says that’s a sign that this isn’t a serious endeavor. Instead, according to Shankland, the university committee should be focusing on issues that actually affect campuses across the state, such as student debt and preparing students for the workforce.
“This is a bill to use as a cudgel on college campuses during an election,” she says. “There are real issues on college campuses we should be working on. This debate, while I recognize it’s important to have conversations around freedom of speech, the First Amendment guarantees it, case law guarantees it, we need to work on issues that keep people up at night.”
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