“The immediate question in the two lawsuits before the Supreme Court — Students for Fair Admissions v. President & Fellows of Harvard College and Students For Fair Admissions v. University of North Carolina — was whether the Supreme Court should overrule Grutter v. Bollinger, the 2003 case that held that race may play a limited role in college admissions. In practice, race often functions as a tiebreaker when universities are deciding among many well-qualified students.
According to Vox’s Ian Millhiser, the decision does not explicitly overrule the Court’s previous decisions permitting affirmative action, but it will almost certainly have the same effect as a total ban.
The overarching stakes in these cases, however, are much broader. The plaintiffs advocated a “colorblind” theory of the Constitution that would prohibit the government from considering race in virtually any context, including efforts to voluntarily integrate racially segregated grade schools and other institutions. Decisions such as Grutter have given the government limited authority to foster racial diversity. The Harvard and UNC decision is likely to eliminate that authority altogether.”
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“Affirmative action has been used for more than half a century by colleges and universities, initially to encourage the participation of historically marginalized groups and mitigate the effects of decades of segregation by university systems. Since the landmark Regents of the University of California v. Bakke case in 1978, the Supreme Court has repeatedly held that such programs can be used as a tool to foster diversity among a university’s student body, and that an applicant’s race or ethnic background could be deemed a plus when deciding between applicants who are similarly qualified. The Court determined that students from underrepresented racial backgrounds could “promote beneficial educational pluralism” that benefits all students — a goal compelling enough to the justices that they have continued its use. Since Bakke, the Court has upheld affirmative action in admissions despite multiple challenges, including Fisher v. University of Texas, decided as recently as 2016, in which Abigail N. Fisher, a white woman, claimed that she was rejected from the University of Texas at Austin because of preferences given to applicants of color.
Although decades of research support the conclusion that more diverse campuses benefit all students, the premise of the “colorblindness” theory is that race-conscious policies are so inherently misguided that they cannot be sustained regardless of their benefits. This theory has been around for a very long time — President Andrew Johnson, the white supremacist who spent much of his time in office frustrating Reconstruction, vetoed laws seeking to lift up enslaved people who had been freed because he claimed they would “establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race.” More recently, conservatives including President Ronald Reagan have made similar attacks on affirmative action — often describing such programs as “reverse discrimination.”
Now, this kind of rhetoric is being echoed by Blum (who was, notably, also involved in the Fisher case). “In a multi-racial, multi-ethnic nation like ours, the college admissions bar cannot be raised for some races and ethnic groups but lowered for others,” Blum said in a statement in January. “Our nation cannot remedy past discrimination and racial preferences with new discrimination and different racial preferences.””
“The bill also limits tenure protections for faculty members. Tenure is a lifetime academic appointment granted to professors who meet designated requirements and can be terminated only for cause or under extraordinary circumstances. Under the law, there must be a post-tenure review of state university faculty every five years to assess accomplishments and productivity, teaching duties, student evaluations, compensation, and potential improvement plans. Faculty members do not have the right to appeal grievances beyond the university president.
University presidents are now responsible for hiring, disciplining, and firing the school provost, deans, and full-time faculty. The law specifically instructs presidents to not be bound by the recommendations or opinions of faculty members when making hiring decisions. As part of their expanded role, presidents must also present yearly performance evaluations and salaries of any personnel earning more than $200,000 to the board of trustees.
Together, the law strengthens the powers of university leaders and weakens the autonomy of faculty members. The bill threatens academic freedom, according to AAUP, since it limits the teaching of certain topics in the general education curriculum and halts funding for DEI measures, among other limitations. Faculty told the AAUP that the laws are “Orwellian” and that Florida is a “canary in a coal mine.””
“This new wave of bills targets a long-standing and common standard of job protection for college and university professors, meant to ensure freedom of thought among academics and insulate them from political attacks. The bills that are emerging this year are part of a broader trend among conservative legislatures attacking perceived liberal teachings in high schools and public universities: Last year, Florida Gov. Ron DeSantis signed a law that would require professors at public universities in the state to undergo a tenure review process every five years, saying that tenure promotes “intellectual orthodoxy.” Other Republican state leaders like Texas Lt. Gov. Dan Patrick have since taken up the mantle, arguing that higher-level education is a place of liberal indoctrination and a source of “societal division.”
But the debate is about more than whether professors get to keep their jobs for life: It’s yet another sign that state-level Republicans are doubling down on appealing to their base. The partisan divide between those who go to college and those who do not is one of the firmest divides in American politics today, and it has reinforced diverging attitudes about the value of higher education itself and the role it plays in American life. Republican voters are increasingly suspicious of colleges and universities, and attacks on tenure are just the latest way the party is stoking those concerns.”
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“Opponents of measures like the ones proposed in Texas and Ohio — and the law passed in Florida last year — are concerned that eliminating tenure will make educators vulnerable to politically motivated firings.”
“” Professors are not mouthpieces for the government. For decades, the Supreme Court of the United States has defended professors’ academic freedom from governmental intrusion,” Joe Cohn, legislative and policy director at the Foundation for Individual Rights and Expression (FIRE), tells Reason. “As the Supreme Court wrote in Keyishian v. Board of Regents: ‘Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.'”
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“Unfortunately, Rufo’s ideas aren’t hypothetical. In recent months, several legislative efforts—most notably in Florida—have attempted to quash professors’ academic freedom. “Legislative initiatives like the STOP Woke Act and HB 999 seek to use the power of the state to shut down speech and scholarship on politically disfavored views,” adds Cohn. “These efforts cannot be squared with our longstanding national commitment to academic freedom.”
An argument supporting censorship in the name of “the pursuit of truth as the telos of America’s public universities,” as Rufo claimed, is ultimately shortsighted. Not only does Rufo fail to see how the powers he would give the government could be wielded against his ideological allies, but he also fails to see how censorship ultimately runs counter to the same American values he claims to support.
“Professors must be able to teach, conduct research, and publish scholarship without fear of viewpoint-based retribution from the government,” says Cohn. “And students must be able to learn from faculty who are not muzzled by the state.””
“Two-thirds of faculty over 55 years old said students shouting down a speaker is never acceptable. That number plummets to 37 percent for faculty 35 and under.
Shockingly, younger faculty report more acceptance of violence to combat speech. While 97 percent of older faculty say it’s never acceptable for students to use violence to stop a campus speech, only 79 percent of younger faculty agree. That one in five younger professors show any level of acceptance for violence to stop speech should alarm all of us.”
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“Among liberal faculty 35 and under, only 23 percent indicated that students shouting down a speaker is never acceptable, compared with 88 percent of conservative faculty. Moderate faculty in this age group were also much more likely than their conservative colleagues to endorse the acceptability of these tactics.
Perhaps most alarming of all, only 64 percent of young and liberal faculty say it’s never acceptable for students to use violence to stop a campus speech.”
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“More than half of faculty—52 percent—say they’re afraid they’ll lose their job or reputation over a misunderstanding of something they said or did, or because someone posted something from their past online. While almost three-quarters of conservative faculty expressed this year, 40 percent of even liberal faculty agree.”
“While college campuses are chock full of particularly mind-numbing misunderstandings of the First Amendment—from students and administration alike—the example that takes the cake this year comes from Yale Law School, where student activists disrupted a Federalist Society event discussing civil liberties.
As Foundation for Individual Rights and Expression (FIRE) attorney Zach Greenberg wrote, “Protesters banged on walls, stomped on the ground, chanted ‘Fuck you FedSoc,’ and screamed at the panelists…. The cacophony persisted for the majority of the event, and though panelists struggled to project their voices over the noise, the audience remained largely unable to hear them.”
The activists’ actions comprised a “heckler’s veto”—a form of unprotected speech where the heckler prevents someone from exercising their free speech rights by physically preventing them from being heard. However, the activists didn’t seem to care. When students were told their actions violated Yale’s free expression policies, a chorus of students insisted that “This is free speech.””
“In four years, the number of students graduating from high schools across the country will begin a sudden and precipitous decline, due to a rolling demographic aftershock of the Great Recession. Traumatized by uncertainty and unemployment, people decided to stop having kids during that period. But even as we climbed out of the recession, the birth rate kept dropping, and we are now starting to see the consequences on campuses everywhere. Classes will shrink, year after year, for most of the next two decades. People in the higher education industry call it “the enrollment cliff.”
Among the small number of elite colleges and research universities — think the Princetons and the Penn States — the cliff will be no big deal. These institutions have their pick of applicants and can easily keep classes full.
For everyone else, the consequences could be dire.”