Members of the Ohio Senate Education Committee
Senate Building
Columbus, Ohio

Dear Senator:
We understand that the Education Committee is presently considering a bill, SB 24, to adopt an "academic bill of rights" in higher education. Contrary to what the name suggests, the proposal would restrict, not enhance, academic freedom and intellectual activity.

Some useful background
The meaning and intent of the Academic Bill of Rights can only be understood properly through knowledge of its history and origins. The proposal is the brainchild of David Horowitz, a writer and activist who openly claims authorship, who argues that colleges and universities discriminate against "conservative" views and those who hold them. Thus, he and other proponents, such as the Students for Academic Freedom, present the ABoR as a way to promote "balance" in the teaching of controversial issues and counter any discrimination on the basis of viewpoint.

Horowitz and others contend that Democrats outnumber Republicans on some college faculties and that political affiliation of faculty members alone provides evidence for the alleged imbalance and discrimination. Even if they are correct, this suggests that the "solution" would be to replace Democrats with more Republicans, which means basing academic employment decisions on political affiliation. Turning academic appointments into political patronage jobs is not only anathema to educational goals, it is unconstitutional.

Reliance on political affiliation to support the case for the ABoR is itself deeply troubling. The only other "evidence" offered in favor of the concept are anecdotes from dissatisfied students. Even if some of these represent valid complaints, they are more appropriately addressed in existing mechanism through which students file complaints and express views. There is simply no credible, reliable, or valid support for the claim that discrimination against conservative viewpoints is a widespread problem.

The language of SB 24

While the proposal may seem innocuous, even admirable in parts, it is vague, sweeping, and ambiguous. For example, what precisely is meant by the requirements to foster "a plurality of serious scholarly methodologies and perspectives" and to "respect all human knowledge"? The bill prohibits teachers from "persistently introducing controversial matter" (emphasis added), but does not define "persistently" or "controversial. Nor is it clear on what basis one would conclude that controversial matter "serves no legitimate pedagogical purpose." Indeed, the bill could chill spontaneous classroom discussion on any subject that might be considered controversial, if the topic is not on the day’s curriculum, as well as courses on "hot topics" in current affairs, like hate speech or pornography, mideast politics, and the justifications for war in Iraq.

Does the protection for student free speech mean that students may express any opinion, at any time, and in any place? Would a student group infringe students’ freedom of conscience by sponsoring a pro-choice rally, or a debate on abortion? The compulsory "organizational neutrality with respect to the substantive disagreements that divide researchers" would apparently preclude the chair of the biology department from giving educators advice about efforts to require the teaching of creationism, or the head of the medical school from giving a public talk about FDA policies for drug approvals.

Then there is the requirement that teachers must "make their students aware of serious scholarly viewpoints other than their own." How exactly would this work in the classroom? Should the foreign policy perspectives of Henry Kissinger have been tempered in their classes, because of his conservative and controversial views? What about William Buckley: should he be required to "balance" any course he teaches by engaging in a continuous debate with a representative of the ACLU? Must Abigail Thernstrom, an opponent of affirmative action, provide counter evidence in every class on the subject, even if she thinks it flawed? Must Milton Friedman treat capitalism and Marxism equally?

No single course can present all points of view. Without the freedom to present strongly held views, even if those views are contested or controversial, education will be reduced to a robotic narrative consisting of "on the one hand" versus "on the other."

As a practical matter, the bill would prohibit discrimination "on the basis of political, ideological, or religious beliefs," but does not specify whether this would be determined based on the faculty member’s intent or state of mind, or the student’s perception? In either case, how would such a finding be made? Is the view of one student adequate, even if disputed by others? Would it be necessary to poll students in that class or all that teacher’s classes? What about complaints of bias regarding statements that are verifiably accurate, but nonetheless controversial or "offensive"? What role may teachers take in heated exchanges between students? Are students subject to the same restraints as professors in what they can say?

The bill offers no answers or guidance on these and other questions, nor is a constitutionally-viable answer readily apparent.

Conclusion

The Academic Bill of Rights will invite complaints, disputes, confusion, and a host of other problems, both practical and theoretical, as well as embroil the legislature in the day-to-day operation of colleges and universities. It may seem like a good idea, but a close examination of what lies behind the rhetoric of "balance" reveals not only a proposal that cannot work in practice, but also represents unwarranted government interference with academic freedom.

Please feel free to contact us if we can be of assistance in your deliberation on this proposal.

Sincerely,

Joan E. Bertin
Executive Director
National Coalition Against Censorship
275 7th Avenue
New York, NY 10001
212-807-6222

Chris Finan
President
American Booksellers Foundation for Free Expression
139 Fulton St #302
New York, NY 10038
212-587-4025

On behalf of:
ACLU of Ohio
American Booksellers Foundation for Free Expression
Association of American University Presses
Brennan Center for Justice at NYU Law School
Feminists for Free Expression
National Coalition Against Censorship

The above letter was sent to:
Senator Joy Padgett, Chair
Senate Building, Room #035, Ground Floor
Columbus, OH 43215

Senator Gary Cates
Senate Building, Room #042, Ground Floor
Columbus, OH 43215

Senator John Carey
Senate Building, Room #127, First Floor
Columbus, OH 43215

Senator Randy Gardner
Senate Building, Room #220, Second Floor
Columbus, OH 43215

Senator Jeff Jacobson
Senate Building, Room #138, First Floor
Columbus, OH 43215

Senator Larry A. Mumper
Senate Building, Room #222, Second Floor
Columbus, OH 43215

Senator Teresa Fedor
Senate Building, Room #223, Second Floor
Columbus, OH 43215

Senator Eric D. Fingerhut
Senate Building, Room #049, Ground Floor
Columbus, OH 43215

Senator Ray Miller
Senate Building, Room #052, Ground Floor
Columbus, OH 43215