Could Utah’s colleges be stopped from teaching about divisive topics?

Legislatures in 16 states have introduced laws related to critical race theory at public universities.

(Leah Hogsten | The Salt Lake Tribune) Rep. Steve Christiansen, R-West Jordan, plans to sponsor legislation in 2022 to ban the teaching of "divisive subjects" in Utah's schools, which is inspired by the controversy over critical race theory. Lawmakers are eyeing an expansion of that ban to Utah's colleges and universities.

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The fight that lawmakers recently waged over critical race theory has mostly gone into hibernation until the Utah Legislature meets in 2022.

But come January, the controversy may erupt once again as lawmakers target how race and history are taught not just to Utah’s school-age children but also in higher education.

Legislative Republicans seemed mostly satisfied with steps taken by the Utah Board of Education to address concerns about curriculum and training materials for teachers, which is why they’ve called a cease-fire.

Rep. Steve Christiansen, R-West Jordan, says he plans to introduce legislation on the topic come January, but his bill won’t mention the words “critical race theory.” Instead, he plans to block the teaching of certain “divisive concepts” in the classroom.

“I would call it more than just divisive,” he said. ”They’re, quite frankly, illegal.”

Christiansen points to a legal decision issued by Montana Republican Attorney General Austin Knudsen in May. It bans critical race theory and anti-racism programs in the state’s classrooms and in training materials for public employees. The decision was decried by the American Civil Liberties Union of Montana and the Montana Federation of Public Employees, which represents government workers and teachers. The opinion carries the force of law in Montana, meaning violators could lose state funding or be liable for damages.

Christiansen says “illegal” topics could include saying one race or sex is inherently better than another or teaching that characterizes the United States as inherently racist.

He points to author Ibram X. Kendi, whose recent book, “How to Be an Antiracist,” suggests discrimination that results in an equitable outcome is acceptable. The Utah Board of Education says it has not received any complaints about Kendi’s book being used in any classrooms in the state, and the book is not on the list of recommended resources for schools.

While the current panic around how race and racism are taught has focused on primary and secondary education, some Utah Republicans have privately expressed concern about whether the topics have an undue influence in the state’s higher education system.

Christiansen is considering an expanded proposal, which would include state-funded colleges and universities.

“It would have to be done carefully to make sure we define concepts that are prohibited because they’re divisive and illegal,” Christiansen said. “The higher education environment is a place where we absolutely want free speech to be protected.”

Anti-racism training

Christiansen’s goal of avoiding “divisive topics” could run into the issue of academic freedom on campus. In November, the faculty senate at the University of Utah issued a statement in support of anti-racism training at the U., which also called on school leadership to “protect and extend this work on campus.”

U. law professor Randy Dryer, who chaired the group that crafted the statement, says the effort to curtail the teaching of “divisive subjects” fundamentally misinterprets the role a university plays.

“The goals of education at a university, where most students are adults, are markedly different from the goals of education in K-12,” Dryer said. “College is a time for students to be exposed to new ideas, beliefs, and values. We live in an increasingly connected and interdependent world, and learning about ideas and beliefs that are different from the ones we developed in the first part of our life is essential to being a responsible global citizen.”

U. political science professor Edmund Fong, who chairs the Division of Ethnic Studies, said attempts to limit what is taught on campus could have unintended consequences, and could cast Utah in a negative light.

“As a society, we place a very high value on academic freedom and the robust exchange of ideas,” Fong said. “Efforts to limit what can be taught, even if possible, need to be carefully considered because there will be many interconnected implications.”

Fong worries Christiansen’s opposition to “divisive topics” is so vague it could be unenforceable.

“Potentially, anything could be considered to be divisive,” he said “Even if they are not practically enforceable or largely symbolic, they can still have consequences.”

Fong says Arizona’s ban of a Mexican American studies program is illustrative. The curriculum was established in 1974 after Latino and Black students filed a desegregation lawsuit against the Tucson Unified School District. The Arizona Legislature passed a bill in 2010 to block courses that are “designed primarily for pupils of a particular ethnic group.” The legislation also prohibited instruction that promoted “resentment toward a race or class of people” or “the overthrow of the United States government.”

“The law was not ultimately ruled unconstitutional until 2017, “ Fong said, “so you had a period of seven years in which the damage was done.”

The money factor

The Utah Legislature has enormous influence when it comes to higher education in the state. It appropriated more than $2.2 billion for public post-secondary education in the 2021-22 budget, which is about 8% of Utah’s $17.2 billion budget. By way of comparison, the state’s public education budget is about three times as large. Lawmakers can threaten to withhold or cut funding for schools that defy any restrictions they approve.

That’s what Arkansas lawmakers tried to do. A bill introduced earlier this year threatened to cut funding for schools, college and universities that offer classes promoting social justice. Ultimately, the proposal was withdrawn due to lack of support.

As of June, legislatures in 16 states had introduced or passed legislation seeking to clamp down on the teaching of critical race theory on college campuses.

A precedent

Twice in the past century, the Supreme Court has come out in favor of academic freedom. In 1957, Justice Felix Frankfurter wrote a concurrent opinion in Sweezy v. New Hampshire that “a free society [depends] on free universities,” and higher education institutions were shielded from government interference that hurt the “intellectual life” of the university.

A decade later in 1967, the court ruled in Keyishian v. Board of Regents that academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

Ryan Cooper, national correspondent for The Week Magazine, likens efforts similar to Christiansen’s to the “red scare” of the 1950s.

“This is just to whip up a moral panic about any kind of lefty or liberal instruction about racism and history,” Cooper said.

“This is an excuse to conduct a McCarthyite-like purge to shove leftists out of academia, out of elementary and high schools,” Cooper added, “much in the same way there was a frenzy of panic over people with an even slight affiliation with the Communist Party in the 1950s.”

Editor’s note • Randy Dryer is a member of the nonprofit Salt Lake Tribune’s board of directors.