25 State Higher Education Policy Priorities of The America First Agenda

I. Improve the climate for free expression on America college and universities campuses

Several studies have documented a campus crisis related to limits on free expression. Students routinely exercise self-censorship and say they cannot discuss controversial issues of public and social policy. According to the Foundation for Individual Rights and Expression (FIRE), 24 states have enacted legislation to strengthen free speech protections and promote free expression on public college and university campuses. Many of the statutes are narrow in scope, however, and could be amended to include additional protections.

The America First Policy Institute (AFPI) supports policies at the state level that:

1. Require public institutions to commit to the ideals of a truth-seeking institution, including free inquiry and institutional viewpoint neutrality as the preconditions of building a thriving marketplace of ideas. Dozens of universities, including several state systems, have adopted the Chicago Principles on Freedom of Expression or a substantially similar statement dedicating the university to “the preservation and celebration of the freedom of expression as an essential element of the University’s culture.” Legislatures can require it.
   1. Alabama HB 498 (2019) (Ala. Code § 16-68-3) endorses the Chicago Principles and the University of Chicago’s Kalven Committee report in its findings section of the statute. The latter expressly commits the university to neutrality on contested issues of public and social policy, recognizing that “to be true to its faith in intellectual inquiry, [a university] must embrace, be hospitable to, and encourage the widest diversity of views within its own community.”
   2. North Carolina Chapter 116 Art. 36 §116.300 recognizes that “It is not the proper role of [a university] to shield individuals from speech… including… ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.” That statute also stipulates that public universities “may not take action, as an institution, on the public policy controversies of the day in such a way as to require students, faculty, or administrators to publicly express a given view of social policy.”  
   3. The National Association of Scholars’ Civics Alliance has proposed model legislative text that commits public universities to a truth-seeking mission by requiring the institutions (and all academic units within them) to adopt guiding principles into their mission statements, for example, “We affirm that {Entity} will educate students by means of free, open, and rigorous intellectual inquiry to seek the truth.”
2. Establish a definition of student-on-student harassment consistent with the United States Supreme Court’s definition in Davis v. Monroe County Board of Education. This prohibits overbroad speech codes on campus that can be used to report (and investigate) constitutionally protected speech, which chills student and faculty expression.
   1. Arkansas SB 156 (2019) defines “harassment” as an “expression that is so severe, pervasive, and subjectively and objectively offensive that it effectively denies access to an educational opportunity or benefit provided by the state-supported institution of higher education).”
   2. Utah HB 159 (2021) adopts a similar definition and includes a cause of action clause that authorizes the attorney general to “bring an action to enjoin a violation.”
3. Prohibit the establishment of bias incident response teams or reporting systems that allow students to set off burdensome and reputation-damaging investigations when speech causes offense. Even though several federal appeals courts have ruled that such systems have an unconstitutional chilling effect on speech, hundreds of campuses have implemented them.
   1. Speech First has published model legislation that would prohibit public institutions from establishing offices or systems that “[s]olicit the reporting of incidents of student speech protected by state or federal law, including but not limited to speech pertaining to disagreements of opinion; political beliefs or affiliations; or perceived bias, prejudice, stereotypes, or intolerance.”
4. Require governing boards of regents (or trustees) to adopt a policy requiring state institutions to sanction students who deliberately interfere with speech and assembly rights of other students, faculty, and speakers.
   1. Georgia’s SB 339 (2018) specifies that “the board of regents shall establish a range of disciplinary sanctions for anyone under the jurisdiction of the state institution of higher learning who is found by his or her conduct to have interfered with the board of regents’ regulations and policies relevant to free speech and expression on the campus of each such institution.”
5. Mandate that the governing board for each public institution publish an annual study of the campus climate for free speech and institutional viewpoint neutrality.
   1. Georgia’s SB 339 (2022) requires the board of regents to publish an annual report and “provide a copy to the Governor and each chamber of the General Assembly” that addresses any “disruptions of free expression,” the administration’s “response and discipline relating to violations,” and “actions taken by public institutions… including difficulties, controversies, or successes, in maintaining a posture of administrative and institutional neutrality with regard to political and social issues.” This kind of reporting requirement focuses campus leaders’ attention on protecting students’ expressive rights on a day-to-day basis.
6. Prohibit so-called “free speech zones” that have the practical effect of quarantining political speech to narrow areas of the public campus.
   1. Florida’s SB 4 (2018) specifies that “A person who wishes to engage in an expressive activity in outdoor areas of campus may do so freely, spontaneously, and contemporaneously as long as the person’s conduct is lawful and does not materially and substantially disrupt the functioning of the public institution of higher education or infringe upon the rights of other individuals or organizations to engage in expressive activities.” Any permissible “time, place, and manner” restrictions must be reasonable and “content-neutral.”
   2. Florida’s statute also creates a cause of action, authorizing a person injured by a university’s violation of the law to bring legal action to obtain injunctive relief. Other states, including Missouri under SB 93 (2015), include a cause of action clause authorizing the attorney general to seek injunctive relief. Iowa SF 274 (2018) authorizes members of the campus to file a complaint with the institution’s governing board.
7. Require that public colleges and universities educate all incoming students about the importance of free speech and viewpoint diversity.
   1. Ohio’s SB 40 (2020) requires public universities to publicize “policies, regulations, and expectations of students regarding free expression on campus” in its handbook and orientation programs. State institutions are also required to train faculty, staff, and administrators regarding the “duties of the institution regarding free expression on campus.”
   2. North Carolina Chapter 116 Art. 36 §116.302 requires that “All constituent institutions of The University of North Carolina shall include in freshman orientation programs a section describing the policies regarding free expression consistent with this Article.” The Article in question includes a strong statement defining the function of higher education (“the discovery, improvement, transmission, and dissemination of knowledge”), guarantees that student and faculty First Amendment rights will be protected, and requires that students who disrupt the expressive rights of others be disciplined.
8. Forbid viewpoint discriminatory policies and actions with respect to speaker invitations.
   1. Tennessee SB 723 (2017) guarantees that public institutions “shall allow all students and all faculty to invite guest speakers to campus to engage in free speech regardless of the views of guest speakers” and specifies that school administrators “shall not disinvite a speaker… because the speaker’s anticipated speech may be considered offensive, unwise, immoral, indecent, disagreeable, [etc.].”
   2. Ohio SB 40 (2020) specifies that no state university “shall charge security fees to a student or a student group based on the content of their expression, the content of the expression of their invited guest, or the anticipated reaction to an invited guest’s expression.”
9. Establish a standing subcommittee on state boards of trustees (regents) responsible for compiling an annual report on the state of free expression for the university/ state system.
   1. North Carolina Chapter 116 Art. 36 §116.301 requires the chair of the Board of Governors to designate a Committee on Free Expression. The committee reports to the Governor, General Assembly, and the public and is required to issue an annual report describing any disruptions to students’ expressive rights, the administration’s handling of the disruption, any substantial difficulties maintaining “administrative and institutional neutrality with regard to political or social issues,” and any assessments or recommendations the committee sees fit to add.

II. Protect the religious liberty of students by ensuring the fair treatment of organizations with a religious mission

College administrators and student government associations sometimes make it difficult for student organizations with a religious identity to organize, receive funding, and govern themselves according to their principles. Lawmakers can act to protect students’ free exercise rights.

AFPI supports policies at the state level that:

10. Forbid discrimination against student organizations with a religious mission or identity by denying them recognition or funding or requiring them to open leadership roles to all comers as a condition of official recognition or institutional funding.
    1. Kentucky’s HB 254 (2019) guarantees that “student religious and political organizations are allowed equal access to public forums on the same basis as nonreligious and nonpolitical organizations” and requires that “[s]tudent activity fee funding… is not denied based on the viewpoints that the student organization advocates.”
    2. Iowa SF 274 (2018) specifies that public universities “shall not deny any benefit or privilege to a student organization based on the student organization’s requirement that the leaders of the student organization agree to and support the student organization’s beliefs, as those beliefs are interpreted and applied by the organization, and to further the student organization’s mission.”

III. Take positive steps to improve viewpoint diversity on campus

A truly liberal education requires the freedom and opportunity to explore a wide range of viewpoints. Unfortunately, most campuses today are characterized by a Left-leaning viewpoint of monoculture. A study conducted by the Higher Education Research Institute at the University of California-Los Angeles found that 60% of college faculty members across all disciplines identify as “far Left” or “liberal,” compared to 12% who call themselves “conservative” or “far Right.” The ratio is often even more lopsided in disciplines like history, economics, psychology, journalism, and law. One study of voter registrations in those disciplines at 40 leading universities found institutional Democrat-to-Republican ratios as high as 60 to 1.

AFPI supports policies at the state level that:

11. Establish centers to bring viewpoint diversity to campus and bolster civic education.
    1. In the 2021–2022 session, Tennessee SB 2410 (Pub. Chap. No. 963) passed both houses with strong bipartisan majorities (90–3 in the House and 30–3 in the Senate). The measure establishes a new “institute of American civics at the University of Tennessee, Knoxville” designed to “enhance education in the fields of politics, economics, philosophy, American history, American government, and other related fields as appropriate, with a focus on the rights and responsibilities of American citizenship.” The statute creates a board of directors to oversee the center and initial hires with the expectation that it will be funded by a $4 million recurring appropriation and house at least eight tenure track/tenured faculty, four instructors, and three academic administrators.
    2. Tennessee’s new center is based on the School of Civic and Economic Thought and Leadership, established by the Arizona legislature with a dedicated funding line in 2017. Its mission is to promote viewpoint diversity and civic literacy through the “study of the liberal arts and classic texts with a rigorous examination of American ideas, institutions, and civic culture.” Today, the school delivers undergraduate and graduate programs, develops a curriculum for social studies educators, helps train Arizona’s teachers, and runs a series of public lectures and debates broadcast statewide. Efforts to build similar centers in Texas, Florida, and Utah are currently underway.
12. Forbid political litmus tests in admissions decisions and hiring university positions.
    1. The James Martin Center for Academic Renewal, Stanley Kurtz, and the Goldwater Institute have proposed model legislation that guarantees no “political test or qualification shall ever be required as a condition of admission into, or promotion within, any public educational institution of the state, as teacher, employee, or student.” The “End Political Litmus Tests in Education Act” also prohibits extending preferential consideration to applicants, faculty, and staff based on the expression of a “partisan, political or ideological set of beliefs.”
13. Require state universities to assess the level of intellectual diversity on campus and develop strategies to improve the marketplace of ideas.
    1. Florida HB 233 (2021) requires the university system’s governing board to “require each state university to conduct an annual assessment of the intellectual freedom and viewpoint diversity at that institution.” Universities must also publish the results each year. Reporting requirements strongly encourage remedial action so that institutional leaders can explain to state leaders and concerned citizens that they are addressing any problems revealed.    
    2. Tennessee’s SB 2290 (2022) requires each public institution to conduct and publish “a biennial survey of the institution’s students and employees to assess the campus climate with regard to diversity of thought and the respondents’ comfort level in speaking freely on campus.”

IV. Require state colleges to establish strong due process protections for students

The Biden Administration’s proposed revision to Title IX regulations will significantly weaken federally required minimum due process protections for students accused of sexual misconduct. This will allow universities to revert to the failed practices of the Obama era, which saw students unjustly subjected to life-changing punishments without due process and exposed universities to litigation risk. Nevertheless, states can still act to strengthen due process protections, and in fact, some appeals courts actively require it. According to FIRE, eight states have passed legislation establishing strong minimum due process protections for students: Arizona HB 2563 (2018), Arkansas HB 1892 (2015), Florida HB 233 (2021), Kentucky HB 290 (2022), Louisiana HB 364 (2022), North Carolina Ch. 116 Art. 36 §116.300, North Dakota Ch. 15-10-56 (2020), Ohio SB 135 (2022).

AFPI supports policies at the state level that:

14. Specify robust minimum requirements for protecting students’ due process rights and require Title IX officers to have substantial justice administration experience.
    1. Florida House Bill 233 (2021) requires state colleges and universities to extend the following specific guarantees to students and to publish them on the institution’s website: “timely written notice [of the] alleged violation,” “the right to a presumption that no violation occurred,” (i.e., innocent until proven guilty), “the right to an impartial hearing officer,” “the right to an advisor or advocate,” “the right to appeal,” opportunity to question witnesses, and access to “all known information relating to the allegation.”  
    2. The National Association of Scholars’ (NAS) “Campus Due Process Act” model legislation requires state colleges and universities to “establish adjudication procedures for faculty, staff, and students with strict adherence to due process protections, including… “the presumption of innocence,” the use of a “clear and convincing evidence standard,” “the right to counsel,” “the right to know what one is charged with,” “the right to access all evidence including exculpatory evidence,” and “the right to live hearings” in which cross-examination is permitted, among other protections. While most of the NAS recommendations are compatible with the proposed Biden Administration regulation, use of the “clear and convincing standard” of evidence would only be permissible at schools that use that standard in every type of disciplinary proceeding.

V. Establish strong incentives for innovation, efficiency, student success, and attention to labor maker signals

States invest in public higher education to advance the public interest. Colleges and universities do so in many ways, including by preparing students for success in the labor market. However, when they have guaranteed taxpayer-financed funding streams, public institutions can become detached from market forces. Lawmakers can use funding levers to encourage institutional leaders to attend to the alignment of program portfolios with market demand and to encourage innovation and efficiency.

 

AFPI supports policies at the state level that:

15. Require state universities to compete for state appropriation under a funding model that incentivizes efficiency, innovation, and better student outcomes.
    1. Kentucky’s SB 153 (2017) (revised by SB 135 in 2021) establishes a formula that allocates the entire state appropriation to universities based on student credit hours delivered; student success metrics, including credentials awarded, student progression, URM credentials, low-income credentials, STEM+H credentials, targeted industry credentials; and campus operations (privileging expenses related to instruction).

2. Florida’s HB 7029 (2016) (Ch. 2016-237 §9 §1001.66) establishes a performance-based funding system that penalizes universities when student success outcomes decline by withholding a proportion of the state’s institutional investment (a pot of funding that is distinct from the “state investment”). Metrics include graduation and retention rates, median wages of recent graduates, enrollment of low-income students, Pell-eligible student graduation rate, bachelor’s degrees awarded in areas of strategic emphasis, etc.). Schools with declining scores for two consecutive years or whose total score is beneath a specified threshold, must submit an improvement plan to the board to receive 50% of their institutional investment and must meet the agreed upon goals therein to receive the second half of the appropriation.
3. The Cicero Institute has developed model legislation that directs the state Department of Education or Higher Education Coordinating Agency to develop a funding model that allocates funding based on institutions’ workforce readiness scores. They have also developed an in-depth report assessing approaches to performance-based funding.

16. Establish earnings-weighted funding models for specific institutions that incentivize universities to develop programs and curricula that deliver a high return on investment.
    1. Texas has adopted an innovative “Returned-Value” funding model for Texas State Technical College (TSTC) that ties the entirety of the school’s state appropriation to graduates’ earnings. This creates a strong incentive to design innovative programs that truly meet the demands of the marketplace. A 2011 budget rider directed the Texas Higher Education Coordinating Board to work with TSTC and the Legislative Budget Board to create a formula that rewards “job placement and graduate earnings projections, not time in training or contact hours.”

VI. Increase governance accountability at state colleges and universities

Universities are complicated institutions with a multipronged mission, several powerful stakeholder constituencies, decentralized decision-making authority, and immense annual budgets. Governing boards—generally selected by the governor or elected by the people—have management and oversight authority. But they are often staffed by people—highly accomplished and competent, no doubt—who nevertheless have little higher education experience. Moreover, their work is complicated by an immense information asymmetry given the administration’s large professional staff. Statutory reform can help governing boards ensure higher levels of accountability in several ways.

AFPI supports policies at the state level that:

17. Require an initial orientation (regarding board members’ responsibilities and authority) and regular professional development for members of state college and university governing boards.
    1. Kentucky’s KRS 164.020 (last amended 2019) requires its higher education coordinating body, the Council on Postsecondary Education, to “develop in cooperation with each public university and the Kentucky Community and Technical College System a comprehensive orientation and education program for new members of the council and the governing boards and continuing education opportunities for all council and board members.” The following topics are among those mandated by the statute: “the roles of the council and governing board members, the strategic agenda and the strategic implementation plan, and the respective institution's mission, budget and finances, strategic plans and priorities, institutional policies and procedures, board fiduciary responsibilities, legal considerations including open records and open meetings requirements, [and] ethical considerations arising from board membership.”
18. Require governing boards actively to review the program portfolio at each public university, assessing student employment outcomes and alignment with labor market demand.
    1. North Carolina SB 105 §8.17 (2021) requires the university system’s Board of Governors to “contract with an independent research organization to conduct an evaluation of its current programs at each constituent institution of The University of North Carolina related to its operational costs, student outcomes, and return on investment (ROI) of each program.” The assessment will help universities to replicate and enhance programs doing the most to prepare students for professional success and to identify those in need of improvement. The report must also be designed to help legislators evaluate the ROI for state higher education funding expenditures.
19. Require governing boards to establish bylaws that regularize best practices in university governance.
    1. AFPI is working on model policy that will require public boards of regents/trustees to periodically update their bylaws and adopt structures that regularize review in key areas, including assessment of the institution’s academic programs, clear oversight of the state of the campus climate for free expression, periodic review of the school’s disciplinary policies and procedures, oversight of priorities in faculty hiring and tenure decisions, and regular structured review of the university president.
20. Require state colleges and universities to seek reaccreditation from a new regional accreditor now that regional monopolies are broken, taking the opportunity to choose an accreditor that supports innovation in the academic program portfolio.
    1. Florida SB 7044 (2022) (Ch. 2022-70 §1008.47) specifies that “[a] public postsecondary institution may not be accredited by the same accrediting agency or association for consecutive accreditation cycles. In the year following reaffirmation or fifth-year review by its accrediting agencies or associations, each public postsecondary institution must seek and obtain accreditation from an accrediting agency or association identified by the Board of Governors or State Board of Education, respectively, before its next reaffirmation or fifth-year review date.” The requirement does not apply to disciplinary or program accreditation. And the section expires in 2032, meaning that state universities will only be required to change accreditors once. As other states adopt similar measures, it will create competition among accreditors, which are membership organizations funded by the schools they accredit, to become more friendly to innovation and less prescriptive about Diversity, Equity, and Inclusion mandates (and other requirements) that unduly politicize public universities.

VII. Strengthen civics education

Representative democracies require some level of shared understanding to make reasoned deliberation and civil public discourse possible. U.S. colleges and universities have traditionally played this role by educating civic-minded graduates, who often help to improve the general rate of civic literacy in their roles as teachers, journalists, public leaders, and parents. Yet, it is hard to think of a time when Americans have known less about their country than now. In a recent survey, 51% of college graduates could not select the term lengths of U.S. Senators and Representatives on a multiple-choice question. Public colleges and universities can be asked to play an important role in rebuilding a common understanding of American principles, core documents, and history.

AFPI supports policies at the state level that:

21. Establish required foundational coursework in American history and government that students in state colleges and universities must complete in order to graduate.
    1. South Carolina’s Reinforcing College Education on America’s Constitutional Heritage Act (REACH Act; Bill 38 2021) makes a three-semester hour course in American history of government a graduation requirement at state colleges and universities. The statute also specifies required content, including the entirety of the U.S. Constitution, Declaration of Independence, and Emancipation Proclamation, along with the Federalist Papers and other foundational documents.
22. Pair required coursework in American history and government at the postsecondary level with rigorous civics literacy testing.
    1. Florida’s Senate Bill 1108 (2021) (Title XLVIII Ch. 1007) required that “each student must demonstrate competency in civic literacy by achieving a passing score on an assessment and by successfully completing a civic literacy course” to graduate from a public college or university. The required courses and assessment must focus on “the basic principles of American democracy and how they are applied in our republican form of government, an understanding of the United States Constitution, knowledge of the founding documents and how they have shaped the nature and functions of our institutions of self-governance, and an understanding of landmark Supreme Court cases and their impact on law and society.”

VIII. Combat Critical Race Theory

Critical Race Theory (CRT) posits that racial inequity and racial oppression are inherent in American society and perpetuated by its governing institutions. The movement’s leading theorists maintain that the only way to remedy past and present wrongs is future discrimination that advantages traditionally marginalized racial groups. Activists are calling for universities to lead this society-transforming project by treating students differently based on race. CRT is not only deepening societal divisions; the demands of many of its activists are plainly illegal under Titles VI and VII of the Civil Rights Act. At least seven states have adopted legislation designed to limit CRT in postsecondary education: Florida HB 7 (2022) and HB 233 (2021), Iowa HB 802 (2021), Idaho HB 377 (2021), Mississippi SB 2113 (2022), Oklahoma HB 1775 (2021), South Dakota HB 1012 (2022), and Tennessee SB 2290 (2022).

AFPI supports policies at the state level that:

23. Prohibit compelled speech related to divisive concepts.
    1. Idaho HB 377 (2021) states that “No public institution of higher education, school district, or public school, including a public charter school, shall direct or otherwise compel students to personally affirm, adopt, or adhere to” three specific tenets of critical race theory: i., that any sex, race, or ethnicity “is inherently superior or inferior,” ii., “[t]hat individuals should be adversely treated on the basis of their sex, race” or other identity characteristics, and iii., that individuals “are inherently responsible for actions committed in the past by other members of the same sex [or) race” by virtue of their own sex or race. Application in the classroom is narrow, forbidding schools from establishing courses of instruction or units of study “directing or otherwise compelling students to personally affirm, adopt, or adhere to” the stated tenets of critical race theory. The statute also prohibits the expenditure of funds from compelling speech in the ways articulated. (A small change in bills based on the Idaho statute, making clear that assigning positions for an academic or policy debate does not constitute compelled speech, would prevent misunderstandings regarding the scope of the prohibition.)          
24. Prohibit the propagation of divisive concepts by postsecondary institutions acting as state agencies, exempting general classroom teaching.
    1. Tennessee’s SB 2290 (2022) prohibits mandatory training and training programs for students and employees if they include divisive concepts. It also prohibits the use of public funds to create incentives for faculty members to “incorporate one (1) or more divisive concepts into academic curricula.” Public universities that employ diversity administrators must ensure that “the duties of such employees… include efforts to strengthen and increase intellectual diversity among the students and faculty.” The statute also prohibits schools from penalizing or discriminating against students and employees for their “refusal to support, believe, endorse, embrace, confess, act upon, or otherwise assent to one (1) or more divisive concepts.” Likewise, the measure guarantees that no student or employee shall “be required to endorse a specific ideology or political viewpoint to be eligible for hiring, tenure, promotion, or graduation.” The statute does not, however, address classroom instructions where First Amendment protections are strongest, and norms of academic freedom protect the exploration of controversial theories.
25. Prohibit mandatory training related to gender identity and race stereotyping in higher education with a much stricter prohibition in a K-12 context.

1. Oklahoma HB 1775 (2021) specifies that “No enrolled student of an institution of higher education… shall be required to engage in any form of mandatory gender or sexual diversity training…. Any orientation or requirement that presents any form of race or sex stereotyping… shall be prohibited.” With respect to K-12, the statute goes much further, guaranteeing that “No teacher, administrator or other employee of a school district, charter school or virtual charter school shall require or make part of a court” a long list of divisive concepts.” To ensure that the statute is not interpreted as forbidding fair and balanced teaching about the country’s history, including the evil of slavery and the many obstacles faced by the civil rights reformers, the law expressly notes that “the provisions of [the K-12] subsection shall not prohibit the teaching of concepts that align to the Oklahoma Academic Standards.”

For more information about higher education reform initiatives, or to discuss customizing these policies to your state’s specific needs and circumstances, please contact Jonathan Pidluzny at [email protected]