Taking ‘black’ out of Black History Month

Imagine black law students at a historically black college or university being told to take the word “black” out of flyers promoting Black History Month. Well, that’s exactly what Florida A&M, the country’s third-largest HBCU, told members of its Black Law Students Association.

When pressed on why the school resorted to such an absurdity, it initially responded by emphasizing that whatever it was doing was in “full compliance” with Florida Senate Bill 266 and the Florida Board of Governors’ Regulation 9.016, the main pillars of Florida’s efforts to roll back DEI, which Gov. Ron DeSantis has said “is better viewed as standing for discrimination, exclusion, and indoctrination.” But just days later, in the face of public backlash, the university’s  law school dean and president reversed course, assuring students (correctly, this time) that neither using the word “black” nor the phrase “Black History Month” violates any law or rules. The restriction, the dean said, “was a staff-level error” and “an overly cautious interpretation” of the law.

Universities have long been rife with this kind of error, often called “overcompliance.” Even if one leaves aside the many hostility-driven attempts to censor expression, when the state engages in speech regulation, it can count on those enforcing its rules to “play it safe” by censoring first and asking questions later (if at all). Give the government an inch of your expressive rights, and it will take a mile.

FIRE has spoken out many times against DEI efforts that go too far, from demanding that students agree with particular views related to hot-button issues to forcing faculty to provide DEI statements that function as thinly veiled political litmus tests if they wish to be hired or promoted. A backlash to such illiberal efforts was inevitable, but that doesn’t justify over-correcting with policies to silence one’s ideological foes. Repeating cycles of vengeance do not serve the public interest.

But that’s what some of these policies are courting. If a university fears a hostile audit, a funding threat, a legislative hearing, or a governor’s public rebuke, the internal incentives are obvious. Staff members decide to red-flag anything that might attract attention. Worse still, the easiest way to prove you’re complying with restrictions on expression is to silence someone in the name of enforcement, because at least then you are “doing something,” adding further perverse incentive to the situation. It becomes a systemic problem, which is why FAMU-style incidents are far from isolated occurrences. Rather, they are the logical outcome of regulating expression based on political pressure rather than making principled decisions based on evenhanded consideration of the situation.

Consider what happened in November at Weber State University in Utah, when Native American writer Darcie Little Badger withdrew as keynote speaker for the university’s annual Native Symposium after the school sent her a list of 10 “prohibited words and concepts” including “bias,” “prohibited discriminatory practices,” and “racial privilege.” She described it as censorship and an “extreme attempt to comply with HB 261,” Utah’s own anti-DEI measure.  (For some perspective, earlier this month I spoke for FIRE at a law school event about “hate speech.” I couldn’t have given that speech at Weber State or any Utah public school if the constraints they sent Little Badger were accurate.) It was more overcompliance. As in Florida, the text of Utah’s bill doesn’t technically require such broad bans. But it does prohibit “engaging in or maintaining a policy, procedure, practice, program, office, initiative, or required training” that makes certain arguments, such as the notion that “meritocracy is inherently racist or sexist,” or that is “referred to or named diversity, equity, and inclusion.” 

This probably doesn’t mean the university can’t invite a speaker who might make such comments, in most cases. But to administrators trying to keep their jobs and stay off the legislative radar, “probably not, in most cases” sounds a lot like “sticking my neck out on this is likely to get my head cut off.” Simpler just to ban all the things.

Even outside state law, the same dynamics can weaponize anti-DEI pressure into censorship. At the University of Alabama last December, officials suspended two student-run magazines — Nineteen Fifty-Six, focused on African-American student experiences, and Alice, centered on women’s issues — citing federal guidance against DEI programs and concerns about “unlawful proxies.” But as FIRE pointed out to UA at the time, it was using an “illogical and . . . grossly overbroad reading” of a memo containing “nonbinding suggestions” from Attorney General Pam Bondi about compliance with federal law. UA simply ignored our concerns and replied to FIRE that the magazines would be replaced by a new magazine that would somehow give more students a chance to “publish on other topics.”

In all these situations, one cannot overlook another inevitable aspect of politically motivated regulations: malicious compliance. When a regulation limits what people can say in a way that the ground-level regulators themselves are likely to resent, some of them will make the situation worse on purpose,  just to score political points. It’s frequently impossible to know for sure when this is happening unless they tell you (which, sometimes, they do). 

You might think universities have a moral and legal responsibility to do their best for their students and not limit their expression unless it’s actually necessary. You would be correct. Malicious compliance in regulating the expression and behavior of others often makes unwilling martyrs for your cause out of people who weren’t consulted and don’t deserve it. But it’s only possible to get away with it when those making policy don’t sufficiently consider the downstream implications and realities of what they’re doing. Political interference in university affairs, even if it’s legal (and, in some cases, arguably warranted) is always fraught with danger and should be engaged in as sparingly as possible.

That brings us to the reigning king and ongoing poster child for political interference in purely academic affairs: the Texas A&M University system. In November, TAMU’s Board of Regents voted on a resolution saying that no class could “teach race or gender ideology, or topics related to sexual orientation or gender identity, unless the course and the relevant course materials are approved in advance” by that campus’ top brass. At the last minute, the word “teach” was changed to “advocate” in the version that passed, showing some awareness among the regents that they might be careening towards an abyss. 

Maybe it’s overcompliance, maybe malicious compliance, maybe honest but misguided compliance. But each one is a predictable outcome of political meddling in the curriculum, and another reason to cast a skeptical eye on efforts to regulate expression.

But as anyone could have predicted (and as FIRE did predict), the late change didn’t do much to help. The dean of the College Station campus’s College of Arts and Sciences told faculty this would affect around 200 courses, and in January the policy made well-deserved national headlines when administrators told philosophy professor Martin Peterson he couldn’t teach two selections from Plato in an introductory philosophy course. About a week after that, the university entirely canceled a course on ethics in public policy. By Jan. 30, Texas A&M admitted to altering hundreds of courses and outright canceling six to comply with the new policy, as well as shutting down its programs in women’s and gender studies (though it also blamed “limited student interest” for the shutdowns).

It’s true, generally speaking, that professors are not supposed to be holding classes that merely advocate or propagandize for their preferred beliefs rather than educate. Faculty have a professional responsibility not to do that to their students. But any corrections could and should have been made long ago. No new policy was needed, much less a policy that would impel the presumably intelligent and thoughtful people who run a major university to say “Excerpts from Plato’s Symposium? In a philosophy class? We’d better take that out!” — and then stick to that decision in the face of ridicule. Maybe it’s overcompliance, maybe malicious compliance, maybe honest but misguided compliance. But each one is a predictable outcome of political meddling in the curriculum, and another reason to cast a skeptical eye on efforts to regulate expression.

The fact is, in all these cases, regulating expression is being used as a hammer to force cultural change. 

One of the most important lessons we should have learned from decades of efforts to regulate expression on campus is this: We know for sure that those efforts have chilled and silenced the speech of countless real, identifiable students and faculty members over the years. That’s always wrong and often flatly unlawful. So where are the countless real, identifiable people who can point to those restrictions and say they actually produced the results they were supposed to deliver?

If we couldn’t censor our way to the left’s ideal campus culture, why would we be able to censor our way to the right’s? It’s time to consider that maybe, just maybe, telling people that they’re not allowed to say certain things on campus isn’t going to solve higher ed’s problems.