State Legislation: An Academic Scalpel

Students for Fair Admissions v. Harvard will not end higher education’s race discrimination by itself, even if the Supreme Court unequivocally strikes down affirmative action. America’s colleges and universities are already planning for massive resistance to preserve race discrimination, and they will have the support of state and federal bureaucracies, as well as the commanding heights of civil society. The Supreme Court may declare nondiscrimination the law of the land, but it cannot enforce that principle.

Not every education bureaucrat will defy the Supreme Court. Not every college administrator is corrupt to the bone, and not every college president sneers at the rule of law. Some surely will make a good faith effort to uphold the law. Yet many others, and probably a decisive majority, will preen themselves as the twenty-first-century equivalent of the righteous men and women who defied the Dred Scott decision through the Underground Railroad. They will be seen by most of the public as delusional and hypocritical—but their predictable obstruction must be overcome.

The states offer the best hope for making academic nondiscrimination a reality, and not just a pious declaration. They provide most funding for their public university systems, and substantial support for private colleges within their borders. They cannot dictate to colleges and universities—the federal government and the accreditors have countervailing powers, and many public and private institutions have endowments that will allow them to ignore state pressures. Still, the states possess the power of the purse, and they can use it to help enforce nondiscrimination.

The states should require transparency about race and sex discrimination. State statutes should require every college or university that receives state funding to post on an easily accessible website an annual report of statistics on the academic qualifications of accepted and matriculating students, differentiated by race and sex. These statistics also should include information correlating students’ academic qualifications and retention rates, differentiated by race and sex. Transparency will make it clear when colleges and universities are committing illegal race and sex discrimination. Ideally it will deter them from discriminating in the first place; at the very least, it will provide public information that can be used to allow successful lawsuits to force them into compliance with nondiscrimination law.

[Related: “Radical, State-Directed Higher Education Reform … In Ohio?”]

The states also should require nondiscrimination in every part of what colleges and universities do: jobs, grants, tuition remission, mission statements, hiring policies, promotion policies, tenure policies, and all programs and activities, including every aspect of orientation, first-year experience, student life, and residential life. These laws would duplicate existing civil rights law—but the federal government and academic administrations try to “interpret” federal nondiscrimination law to mandate discrimination. State nondiscrimination laws will empower state officials, above all state attorneys general, to enforce race and sex nondiscrimination—and do the job even when federal officials won’t.

The states, in addition, should target the ideological bureaucracies and ideologically discriminatory policies that have perverted colleges’ and universities’ missions from the search for truth to the imposition of race discrimination. The “diversity, equity, and inclusion” (DEI) bureaucrats, all their kindred who forward ideologies such as “social justice” and “community engagement,” and all the illiberal policies they enforce, are meant above all to remove from academia all critics and criticism of race and sex discrimination. These illiberal cancers must be removed from the institutions to make it possible for open advocates of race and sex nondiscrimination to be hired or to speak their beliefs. The states should pass laws to require colleges and universities to commit themselves to intellectual diversity, institutional neutrality, and ideological nondiscrimination. In other words, schools should not be allowed to require “diversity statements,” or impose any other litmus test that makes academic employment and speech a radical monopoly.

Finally, the states should require financial transparency from public colleges and universities, and authorize line-item vetoes of their expenditures. Institutions disguise DEI expenditures and staff wherever they can; state policymakers need to be able to find out precisely who is enforcing race and sex discrimination, and to defund their positions. State policymakers can enforce race and sex nondiscrimination if they can reform higher education with the scalpel of precise defunding.

Even passing state laws won’t be enough to stop academia’s race and sex discrimination—state laws also need to be enforced, and schools will use every stratagem they possess to foil state reformers. But state laws will be necessary to enforce race and sex nondiscrimination, even if not sufficient. It took a generation and more to remove Jim Crow “with all deliberate speed”; we will need at least that length of time to remove the New Jim Crow from our institutions of higher education. Our state governments will be the essential means to achieve that end.

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One thought on “State Legislation: An Academic Scalpel”

  1. I agree with the Randall’s strategic recommendations concerning state legislature’s role in reforming higher education. Increased transparency and insistence on non-discrimination will be integral to the meaningful reform and recovery of American higher education.

    Over 20 years ago, I was a part of the Urban University Portfolio Project, an ambitious national higher education reform project. The basic idea was for consortia of colleges and universities with certain strategic institutional similarities would cooperate to develop public assessment portfolios. Collectively, these institutions would decide the best measures of educational performance and pledge to publish theses measures annually. We made great progress in developing measures of higher learning, but, ultimately, our work was rejected because member institutions concluded that publicly posting accurate and relevant institutional performance information was untenable. Might legislatures be able to persuade institutions within states to collaborate to produce higher education portfolios for all colleges and universities within the state?

    It was Randall’s third proposal I found must significant. Higher education has increasingly listed to the political left, and this has imperiled the “intellectual diversity, institutional neutrality, and ideological non-discrimination” that elevated and sustained our system of higher education over the last century.

    One potential check on this drift to the left is academic freedom and the protection of viewpoint diversity within educational institutions. The National Association of Scholars, along with others (Foundation for Individual Rights and Expression, Academic Freedom Association, and Foundation Against Intolerance and Racism), has identified and addressed many incidents involving the political majority’s inappropriate suppression and censure and of speech and activities that do not comport with their own progressive agenda.

    Employees at public universities have direct claims to Constitutional protections against discrimination as well as the right to due process and freedom of speech. However, courts have been reluctant to extend such protections to faculty, staff, and students at private institutions. However, in McAdams vs. Marquette (2018), the Wisconsin Supreme Court decided that private institutions are contractually obligated to fulfill their promises of academic freedom and due process. Might state legislatures also require that all private institutions within their respective states honor their commitments to academic freedom and due process?

    Such legislation would have been very helpful in my in my ongoing battle for academic freedom at Berea College:

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