How Are Tennessee's Public Colleges Responding to New “Divisive Concepts” Laws?
As new laws go into effect, the state's colleges and universities are attempting to reassure faculty and staff, but there's still a chill in the air.
Following in the footsteps of states like Florida and Texas, the Tennessee legislature has been working hard to root out “wokeness” at the state’s public colleges and universities. While state lawmakers seemingly understand that the First Amendment prevents them from banning certain topics from being discussed in college classrooms, that hasn’t stopped them from attempting to chill speech in other areas.
On July 1, 2023, a Tennessee law targeting so-called “divisive concepts” at the state’s public universities went into effect. This law, entitled the Tennessee Higher Education Freedom of Expression and Transparency Act, builds off of legislation passed last year that established rules and prohibitions on the use of so-called divisive concepts in the state’s institutions of higher education.
While the state’s definition of “divisive concepts” includes many abhorrent and bigoted ideas like “one race or sex is inherently superior to another race or sex” or “an individual should be discriminated against or receive adverse treatment because of the individual's race or sex,” other topics are an attempt to target ideas loosely associated with critical race theory. These include:
An individual, by virtue of the individual's race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
An individual should feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual's race or sex
A meritocracy is inherently racist or sexist, or designed by a particular race or sex to oppress another race or sex;
This state or the United States is fundamentally or irredeemably racist or sexist
The rule of law does not exist, but instead is a series of power relationships and struggles among racial or other groups.
It also labels as divisive any concept that “promotes division between, or resentment of, a race, sex, religion, creed, nonviolent political affiliation, social class, or class or people” or that “ascribes character traits, values, moral, or ethical codes, privileges, or beliefs to a race or sex, or to an individual because of the individual’s race or sex.” For instance, a concept like “white privilege” would likely be considered “divisive” under these definitions.
To its credit, the law passed last year (SB 2290) rightly prohibits universities from requiring students or employees “to endorse a specific ideology or political viewpoint to be eligible for hiring, tenure, promotion, or graduation.” It also prevents universities from requiring students or employees to endorse particular viewpoints on admissions or job applications.
But while it stops short of banning discussions or lectures about “divisive concepts” in classrooms, it does prohibit “mandatory university trainings” as well as incentives for students or employees to endorse these concepts (or punishments if they don’t). As defined by the statute, these trainings include “seminars, workshops, trainings, and orientations.” As the Foundation for Individual Rights and Expression (FIRE) points out:
Legislatures have substantial latitude to regulate how a state institution speaks for itself in such programs as non-credit-earning trainings. However, since the law’s definition of “training” includes “seminars” — and this term is often used to describe small, intensive for-credit courses — the provision could be read to prohibit the teaching of “divisive concepts” in higher education classrooms.
What has created even more confusion, however, is that the bill’s proponents have often made statements indicating that the law would somehow affect classroom teaching. For instance, Lt. Governor Randy McNally reportedly said that professors need to “stick to what they’re supposed to be teaching” and “need to teach the facts and not editorialize against certain races or beliefs.”
Local media outlets have also misreported what the law actually does, such as Nashville’s WSMV 4, which reports that “Students can report professors who teach ‘divisive concepts’ under new law.” Another report from Johnson City’s WCYB 9 states that the law allows “students to report professors who teach concepts which promote political and social agendas.” Neither of these articles is true, of course, but inaccurate reports like these will increase fears about what professors can and cannot say.
The law also prohibits using “state-appropriated funds to incentivize, beyond payment of regular salary or other regular compensation, a faculty member to incorporate one (1) or more divisive concepts into academic curricula.” Joe Cohn, legislative and policy director at FIRE, told The Tennessean that this section is likely unconstitutional since it specifically prohibits faculty from seeking state grants to teach about particular topics:
"They take one particular set of arguments with a particular point of view and say, 'This is the one thing that you're not allowed to get additional financial incentives to promote,'" Cohn said. "The moment there's a viewpoint-based regulation, it's unconstitutional."
Additionally, one of the main issues with Tennessee’s overall approach is that it has established a set list of “divisive concepts” in the first place. It never goes well when the government gets into the business of explicitly spelling out either good or bad ideas. First, some concepts are broad enough to chill perfectly acceptable speech. Second, the fact that it has prohibited mandatory trainings and endorsements for these particular ideas leaves open the door that it could require students or faculty to endorse other concepts not enumerated.
The Tennessee Higher Education Freedom of Expression and Transparency Act
The new law (SB 817) that went into effect this month allows college students and employees to report incidents in which they felt compelled to endorse “divisive concepts” or were discriminated against due to their political viewpoints. The college must investigate the alleged incident and “take appropriate steps to correct any violation.” Institutions must also report those violations and any corrective actions taken in an annual report to the Tennessee Comptroller of the Treasury’s Office of Research and Education Accountability.
These changes have raised further concerns that faculty must watch what they say around students for fear of being reported, even though the law does not affect classroom discussions or curriculum.
The statute also affects Diversity, Equity, and Inclusion officers, requiring institutions to “ensure that the employee’s efforts strengthen and increase intellectual diversity and promote a climate that facilitates free and respectful exchange of ideas.” That provision seems innocuous and fair, but the law also oddly tries to define job responsibilities for these employees:
The institution must ensure that the employee's duties include efforts devoted to supporting student academic achievement and workforce readiness, such as mentoring, career readiness and support, workforce development, or other related learning support activities necessary for the academic and professional success of all students.
Colleges must then submit a report to their president and, if applicable, a system president, about its compliance with this DEI employee requirement. This section seems vague, and how universities or the state will enforce this requirement remains to be seen.
It is undeniable that the intent was to target DEI programs. Senator Joey Hensley, the bill's lead sponsor, said in an interview with Inside Higher Ed, “We’re concerned about the DEI programs and how they’re really divisive concepts and put everybody into some group. And they favor one group over another and we just think that people go to college and they need to be educated in whatever field they’re going to school in and not be concerned about diversity, equity and inclusion issues.”
Some provisions of this new law are favorable. For instance, the law protects student groups and guest speakers from bias or discrimination based on their beliefs or political ideology. An institution cannot deny the use of university property to a student group or guest speaker who plans to use the property peacefully and lawfully simply based on that group or speaker’s viewpoint. Colleges also cannot require certain student groups to pay fees not charged to all student groups. These are good provisions. As long as speakers or student groups hold peaceful and lawful events, they should not be barred from campus, regardless of their ideas.
Finally, the law requires that colleges “notify students and employees [ . . . ] on the restrictions [ . . . ] and the definition of divisive concepts [ . . . ] by including such information on the institution’s website and on introductory materials provided by the institution to the new students and employees.” It also requires “employee training to ensure compliance” with the law.
Although it stops short of banning conversations about these topics in classrooms, the requirement to broadcast them to students, faculty, and administrators makes the campus community acutely aware that they could be reported for crossing a line and potentially running afoul of the law. This fear could certainly chill acceptable speech in the process.
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How Are State Colleges Responding to the Law?
Given the requirement to post about “divisive concepts” on school websites, I was curious how major public colleges in Tennessee are addressing the issue. Several have simply stated facts about the new laws, while others have emphasized their strong commitment to defending academic freedom.
University of Tennessee at Knoxville
The University of Tennessee at Knoxville (UT) has a lengthy page on its Office of Provost website that responds directly to the legislation and begins with its commitment to protecting its faculty’s academic freedom:
All faculty—tenured, pretenure, and non–tenure track—have the right to teach, research, create, and perform about their knowledge and understanding in their discipline. This academic freedom persists even when faculty members hold a minority view within their discipline and when others in and beyond the institution find their views contrary or objectionable.
The page also states the university’s commitment to viewpoint diversity and debate, diversity, a culture of respect, and open dialogue. On diversity, the school states:
The issues of diversity and divisive concepts as defined in the legislation have been widely conflated; they are not the same. We do not mandate or promote any single ideology. We support our diversity and engagement work to make sure everyone in our campus community knows they matter and belong. We are proud of our diversity and engagement efforts, and we will continue our work in that area.
The page also emphasizes that university leadership worked to ensure that the legislation recognized academic freedom, state and federal requirements to train students and employees on non-discrimination, that the laws do not impact teaching, debate, and discussion, and that the school’s DEI work can continue.
UT also reviewed its mandatory trainings that would have been affected by the law and concluded, “The university has few mandatory trainings, and it is questionable whether they include divisive concepts as defined in the legislation.” Again, this line stood out as it demonstrates the problem with the state laying out particular ideas as “divisive” while failing to recognize how certain topics could be tangentially related and worthy of discussion.
The page also recommends a statement for inclusion on course syllabi:
A true university education is one in which students hear, study, and discuss ideas that challenge their thinking and encourage them to consider points of view different from their own. Students should expect to hear ideas that make them uncomfortable, should be able to explain and master concepts they disagree with, and should feel free to take opposing views as part of civil academic discourse. We remind all members of the campus community that the Campus Free Speech Protection Act—signed into state law in 2017—applies to everyone. The act endorses the fundamental responsibility of the university by defining what we are not to do: “It is not the proper role of an institution to attempt to shield individuals from free speech, including ideas and opinions they find offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical, or wrong-headed.” These principles are recognized in the Board of Trustees Policy Affirming Principles of Free Speech for Students and Faculty (BT0010).
Middle Tennessee State University
Middle Tennessee State University’s (MTSU) Divisive Concepts page is similar to UT’s in that it explicitly reassures the community that it remains committed to academic freedom and diversity. What stood out to me most about MTSU’s page is how it has clearly affected their policy choices to stay compliant with the law. Here is a section on DEI trainings:
The university does not read the Act as a prohibition on DEI trainings, but we must take care in considering the design of those trainings. To comply with the Act’s training-related requirements, departments and administrative units should:
review current training programs and confirm that they do not contain any divisive concepts;
ensure that those who create new training programs understand the prohibitions in the Act; and
require third parties who conduct training to abide by the Act.
It is important to note that trainings may still inform students or employees, or foster discussion, about pre-conceptions, opinions, or stereotypes that people – regardless of their race or sex – may have regarding those that are different such as socio-economic status. Trainings may also discuss matters from a historical or factual standpoint and should include attribution of statements with historical reference or additional context to address the accuracy of the content provided.
East Tennessee State University
East Tennessee State University’s webpage reiterates its core values before listing out some FAQs about how the laws will impact the school:
"In every respect, PEOPLE come first, are treated with dignity and respect, and are encouraged to achieve their full potential." Reaching full potential includes safeguarding First Amendment rights and academic freedom. Academic freedom allows university faculty to responsibly engage in professional and community service, teach students to engage with empirically-sound information, and conduct ethical and important research. The legislation asserts that the law should not be interpreted to infringe upon the rights of freedom of speech or academic freedom. ETSU, as an institution devoted to regional stewardship, upholds practices, policies, and programs designed to serve the common good. As the AAUP principles indicate, “the common good depends upon the free search for truth and its free exposition.”
Our values statement continues, "RELATIONSHIPS are built on honesty, integrity, and trust; DIVERSITY of people and thought is respected." These values guide the work of the institution. All people deserve respect and dignity and the academy is enriched by exposure to different ideas, people, cultures, thought and practice. The law does not prohibit the work the Office of Equity and Inclusion is leading to build a university culture of inclusion and belonging for people from all backgrounds. Our accreditors and our employers require that our students learn to appreciate the ideas and cultures of others while approaching their own beliefs with inquiry and humility. Nothing in the law changes the university’s commitment to these values.
University of Tennessee Chattanooga
The University of Tennessee Chattanooga (UTC) created a page on Viewpoint Diversity, which emphasizes its commitment “to ensure a climate welcoming of diverse viewpoints for all faculty, staff, and students.” The page contains a link to the list of Divisive Concepts, but it does not address the new laws specifically.
Austin Peay State University
Austin Peay State University’s (APSU) webpage contains its official response and resources for faculty. The college’s VP for Legal Affairs statement affirms its commitment to the First Amendment and academic freedom. It also includes an optional syllabus statement:
APSU is committed to the free and full exchange of ideas and perspectives that is central to the educational enterprise. We are also committed to encouraging students—and all people—to be exposed to, and think critically about, sensitive topics and issues. This is an essential element of higher education and necessary to better prepare students for community participation and robust civic engagement. Curricular materials on concepts including but not limited to racism, sexism and classism may be presented and discussed in this class; while students are expected to master course content, it is not expected that students endorse or subscribe to any theory or viewpoint.
Tennessee Tech’s webpage simply lists the divisive concepts and the law's various provisions.
University of Memphis and Tennessee State University
I did not find a page on divisive concepts on the websites of either University of Memphis or Tennessee State University.
Conclusion: A Worrying Chilling Effect
I wanted to highlight these various responses and courses of action taken by public universities in Tennessee because it demonstrates how confusing and unproductive many of the provisions in these laws are. It has forced college administrators and faculty to walk on eggshells to avoid being reported for alleged violations.
While these statutes could potentially stand up to First Amendment scrutiny if challenged in the courts (except for the provision identified by FIRE above), that doesn’t take away from the fact that they have created a chilling atmosphere on speech and discussion simply by their attempts to define acceptable topics of discourse. Under the guise of protecting open debate and viewpoint diversity on college campuses, the state has ironically limited the breathing room for free and open expression by creating a confusing legal environment.
For instance, a law professor at UT said that her work dealt with critical race theory and bias and told The Tennessean that she was reconsidering her curriculum for future semesters. Other professors worried about the effects on non-tenure-track instructors.
The state could have easily focused on promoting viewpoint diversity and protecting student groups and speakers from ideological discrimination. Instead, they created broad and vague remedies to address problems (like mandatory DEI trainings or students being forced to endorse particular views) that largely don’t exist. As Ken Paulsen at the Free Speech Center at MTSU argued, these laws seek “to tamp down statements that largely aren’t being said in the interest of discouraging theories that are rarely taught [ . . . ] The state would have been better served by a resolution that condemns on-campus racism, sexism and any discriminatory behavior that undercuts the promise of equality and justice for all, while also emphasizing the essential role of a campus as a marketplace of ideas.”
Only time will tell what effects this will have on public discourse at colleges in our state.
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