Many state legislatures across the country are currently working to reform their state’s universities through legislative action. In Ohio, an omnibus reform bill is tackling everything from foreign donations to academic strikes to post-tenure review and teaching in an effort to drastically change public education in the state. The 76-page bill, Ohio Senate Bill 1 (SB1), covers a range of topics (only some of which are directly relevant to HxA’s mission).

Although the bill attempts to tackle certain problems that we agree warrant reform, the bill’s imprecision would create more problems than solutions in the space of open inquiry and academic freedom.

This article focuses on aspects of the bill that heavily impact HxA's mission of promoting viewpoint diversity and open inquiry. In summary, while SB1 seeks to increase accountability and prevent ideological mandates within academic institutions, key provisions of this bill are either undefined, dangerously vague, unenforceable, or pose risks of unintended consequences. These concerns are particularly salient regarding how it seeks to regulate classroom speech, reform diversity, equity, and inclusion initiatives (DEI), and change post-tenure review.

DEI trainings and political litmus tests in hiring and promotion

There are many parts of the bill that attempt to rein in campus DEI initiatives.

To start, Lines 614-622:

Prohibit all of the following: (i) Any orientation or training course regarding diversity, equity, and inclusion; (ii) The continuation of existing diversity, equity, and inclusion offices or departments; (iii) Establishing new diversity, equity, and inclusion offices or departments; (iv) Using diversity, equity, and inclusion terms in job descriptions.

HxA takes no position on whether institutions should have administrative DEI programs, but has consistently objected when candidates for jobs or promotions were filtered out for dissenting views on those issues. We are glad to see this legislation address DEI’s use as a political litmus test, but there are critical flaws in the bill language.

Despite the fact that the bill makes consistent reference to DEI, the bill does not define DEI. This needs to happen, and the bill language should also be amended to explicitly state that these provisions apply only to non-credit-earning programs so as not to interfere with academic instruction. There should also be exemptions added for research and faculty hiring in degree programs explicitly related to DEI topics, because an institution must be able to evaluate the quality of an applicant’s work in their field. Absent such language, the bill would undermine academic freedom.

While the language above deals with job postings, another key provision prohibits institutions from imposing political or ideological litmus tests during hiring, promotion, or admissions decisions by prohibiting institutions from requiring candidates to submit statements of personal political ideology. Lines 728-731 require institutions to:

Affirm and declare that the state institution will not use a diversity statement or any other assessment of an applicant's political or ideological views in any hiring, promotions, or admissions process or decision.

HxA supports curtailing the use of frivolous diversity statements and political loyalty oaths. Although diversity statements in chemistry, engineering, and political science departments are clearly used to police thought, these lines can become more blurred in areas such as gender studies, African studies, or sociology. For the same reason explained above, language should be added to ensure that faculty expertise and scholarly work remain relevant criteria in hiring and promotion decisions. The aforementioned provision is generally aligned with our goals, but needs more work to ensure compatibility with open inquiry and academic freedom. Our friends at the free speech organization FIRE have helpful model legislation that includes language to address these issues. (Disclosure: HxA's Director of Policy Joe Cohn worked on this model legislation when he was FIRE’s Legislative and Policy Director.)

Creating a complaint process

To enforce the rules created by the legislation, the bill requires institutions to adopt processes for reviewing complaints.

Lines 771-774 state:

Each state institution of higher education shall respond to complaints regarding any administrator, faculty member, staff, or student who interferes with the intellectual diversity rights.

This effectively establishes a bias response team to investigate subjective grievances. While institutions should have clearly identified procedures for reporting discrimination, this approach invites complaints into conduct that goes far beyond discrimination. Without clear definitions, the phrase "interfere with intellectual diversity rights" is open to broad interpretation and could be misused and even abused.

This will not protect or encourage intellectual diversity; it will simply encourage self-censorship. The legislature should avoid creating a culture on campus where students and faculty cannot speak freely for fear of being constantly policed.

Vague prohibitions on indoctrination in the classroom

The bill attempts to address indoctrination in the classroom, but the imprecision of the language employed creates its own problems.

Lines 672-675 require university policies to (emphasis added):

Affirm and declare that faculty and staff shall allow and encourage students to reach their own conclusions about all controversial beliefs or policies and shall not seek to indoctrinate any social, political, or religious point of view.

HxA does not object to the notion that faculty should generally allow and encourage students to reach their own conclusions about controversial topics. In fact, we think that is critically important when establishing a healthy higher education culture where open inquiry thrives.

However, the vagueness of the term "indoctrination" raises enforcement concerns. What is indoctrination? Are faculty supposed to refrain from honest expressions of their views? For example, if an economics professor passionately proclaims communism has failed, is he indoctrinating his students?

Universities hire professors to teach, including to teach difficult subjects.This bill creates fear around teaching contentious ideas. Simply changing the word “shall” to “should” throughout this provision would fix this problem, because making it aspirational promotes better pedagogy without importing vagueness problems that exist when employees are subject to requirements with unclear measures. Another approach would be to require public institutions to adopt a version of the Chicago Statement on Principles of Free Expression. The Chicago Principles carefully set forth aspirational conditions that promote the free exchange of ideas on campus.

Faculty evaluations

Some of the bill’s biggest problems, from an academic freedom perspective, stem from how it instructs institutions to measure faculty performance and how those policies can be used to discipline faculty. For example, it requires institutions to create a workload policy that lacks meaningful due process protections. Lines 913-921 outline a process for faculty to be terminated "for cause" that has levels of review, but provides no mechanism for contesting the charges, no right to even see the charges or the evidence, and no right to counsel.

According to those provisions the workload policy must merely set forth the following:

Administrative action that a state institution of higher education may take, including censure, remedial training, for-cause termination, or other disciplinary action, regardless of tenure status, if a faculty member fails to comply with the policy's requirements. Termination under these circumstances requires the recommendation of the dean, provost, or equivalent official, concurrence of the state institution of higher education's president, and approval of the state institution of higher education's board of trustees.

The lack of due process is also apparent in lines 945-951:
 

The board of trustees of each state institution of higher education shall adopt a faculty annual performance evaluation policy and submit the policy to the chancellor of higher education. Each policy must contain an appeals process for faculty to appeal the final evaluation. Each state institution's board of trustees shall review and update its policy every five years.

Again this includes no procedural protections to ensure accused faculty can properly contest charges.

In Lines 1004 to 1010, the post-tenure review process is also weakened, as performance reviews could frequently trigger tenure reviews, making faculty job security precarious:

A state institution of higher education shall conduct a post-tenure review if a tenured faculty member receives a "does not meet performance expectations" evaluation within the same evaluative category for a minimum of two of the past three consecutive years on the faculty member's annual performance evaluation conducted pursuant to section 3345.452 of the Revised Code.

HxA does not oppose post-tenure review per se, but subjecting faculty to triggered reviews in periods as fast as two years after receiving tenure erodes its protections nearly to the point of irrelevance. HxA generally recommends a minimum of five-year intervals between tenure reviews and believes that such reviews should be based on clear criteria that do not violate academic freedom.

Regulating the classroom

The bill has a provision that appears designed to exempt the bill’s framework from intruding into the classroom, but even it is inadequate and itself creates a problem. Lines 756-759 read:

(D) Nothing in this section prohibits faculty or students from classroom instruction, discussion, or debate, so long as faculty members allow students to express intellectual diversity.

Because the provision is conditional, when faculty members don’t allow students to express “intellectual diversity,” the faculty can be prohibited from some classroom instruction under this bill. What would constitute failure to allow students to express intellectual diversity? What if a professor is giving a lecture and not leading a discussion and a student attempts to repeatedly interrupt with off-topic arguments?

Concluding thoughts

SB1 attempts to tackle issues in higher education that warrant reforms. But, however well intentioned the bill may be, it too often veers into counterproductive measures that will likely produce the opposite of the intended outcomes. The creation of the bias reporting system is a prime example of a provision that will create more self censorship and undermine the bill’s goal of promoting open inquiry and viewpoint diversity.

To ensure that the legislation advances open inquiry and viewpoint diversity, clarifications and amendments are necessary. HxA shares the bill sponsor’s view that public institutions of higher education would benefit from reforms to promote these values, but reforms must be carefully crafted to truly improve academia. Because improving open inquiry and viewpoint diversity is a critically important goal, we hope the legislature will take its time to get this right.

In that spirit, we’re eager to engage lawmakers in Ohio to address our concerns. But until the issues we identified are addressed, the bill should not be put on the Governor’s desk.