Over sharp objections from Democrats, House Republicans narrowly passed legislation Thursday that higher education groups say would undermine public colleges’ ability to protect free speech on campus and ensure student safety.
As universities rethink campus policies to change where and how students can protest following last year’s disruptive demonstrations, the End Woke Higher Education Act would prevent public colleges from enforcing “time, place, or manner restrictions on an expressive activity” in a generally accessible area such as the campus quad—unless policies are narrowly tailored and based on content- and viewpoint-neutral criteria, among other requirements. That restriction could make campuses less safe, higher education associations argued this week.
“We are particularly concerned with the impact this legislation would have on campuses’ ability to prevent discrimination and hateful incidents at a time of widespread national tension,” the American Council on Education wrote in a letter this week to House leaders.
But Republicans say that the wide-ranging bill, which would also end the use of “political litmus tests” at public institutions (such as requiring diversity statements for admissions) is needed to safeguard students’ First Amendment rights. Those rights, they say, are increasingly under attack—particularly for conservative students—as some universities become “illiberal” and “repressive institutions.”
“Institutions that systematically shut down reasoned argument and debate allow retrograde ideas to flourish because they don’t have the needed opposition,” said Representative Kevin Kiley, a California Republican. “So this bill seeks to reverse this troubling trend to restore First Amendment freedoms at the place where they are most vital—our institutions of higher learning.”
Democrats sharply criticized the legislation as “dangerous for students and colleges.” They also called out what they see as Republican hypocrisy given the party’s criticisms of colleges’ responses to antisemitic incidents and pro-Palestinian encampments.
“This Republican bill makes it significantly more difficult for universities to keep Jewish students safe under the guise of ending wokeness on college campuses,” said Representative Dan Goldman, a New York Democrat.
The legislation, while unlikely to move forward in the majority-Democratic Senate, highlights the Republicans’ agenda for higher education and their plans to exert more control over colleges if they gain control of both houses of Congress and the White House.
In addition to the time, place and manner restrictions, the bill also prevents public institutions from taking into account the “anticipated reaction by students or the public to the event” when deciding how much to charge for security costs related to a speaker or event. Conservative student groups have said over the years that security fees can have a chilling effect on their speech because they have to pay more when they bring a potentially controversial speaker to campus.
Craig Lindwarm, senior vice president of governmental affairs at the Association of Public and Land-grant Universities, said that change and others in the bill could lead to “states subsidizing speakers who want to take advantage of public property, including the most provocative and controversial speakers, who can now target campuses of public institutions, because under the bill, they wouldn’t be charged the needed security fees.”
He added that many provisions “on their own are objectionable, but working together, it’s overwhelming.”
Under the bill, private colleges would have to disclose their speech policies to students, faculty and the Education Department annually, and both public and private colleges would be compelled to allow single-sex social organizations. Most of the bill’s provisions only apply to public colleges that receive federal financial aid, because those institutions are required to follow the First Amendment.
In addition to the free speech measures, the legislation would codify a Trump-era rule that protected the right of religious student organizations to set their own policies. The Biden administration has proposed rolling back that rule due to concerns that it could allow religious student groups to discriminate against vulnerable and marginalized students, such as LGBTQ+ persons.
Any violations of the bill could result in a college losing access to federal financial aid for a year. Individuals could also sue colleges over alleged violations such as restricting protests. Higher education associations worry that could “spawn costly litigation,” said Steven Bloom, assistant vice president for government relations at the American Council on Education.
Free speech and conservative student groups supported the legislation while ACE, APLU and the Association of American Universities urged the House to reject the bill in letters sent this week, arguing that it would create a “regulatory quagmire” and “micromanage state university policies at the federal level.”
The House rejected those pleas, voting 213 to 201 to advance the legislation. Four Democrats joined with Republicans to pass the bill. Supporters of the legislation argued on the House floor that college campuses are not “places of thoughtful debate” but rather “a breeding ground for illiberal thought.” (This paragraph has been updated to correct the vote tally.)
“Shutdowns, disciplinary action and political litmus tests have become pervasive on college campuses,” said Representative Tim Walberg, a Michigan Republican. “This trend threatens both our constitutionally guaranteed rights and the value of a college education. If we’re to remain a tolerant society and accepting of diversity of ideas, then colleges need to be an open arena for thoughtful debate and discussion.”
New Limits on Accreditors
The 37-page measure combines two bills that passed out of committee in the spring: the Respecting the First Amendment on Campus Act and the Accreditation for College Excellence Act of 2023. The accreditation provisions, which take up five pages, would restrict accreditors from creating standards based on any “ideology, belief, or viewpoint.”
This change is aimed at preventing accrediting agencies from requiring the colleges and universities that they oversee to set policies related to diversity, equity and inclusion. Such policies could include measures to boost the graduation rates of underrepresented students. Some accreditors, in recent years, have issued warning letters to colleges related to their outcomes for marginalized students.
Virginia Foxx, the North Carolina Republican who chairs the House education committee, said that the legislation is a chance for Congress “to make a strong stand for free speech.”
“This bill does not mandate any political viewpoint or ideology,” Foxx added. “It simply demands from the accreditation process down to the classroom that all levels of postsecondary education respect the free speech rights of students.”
Representative Burgess Owens, the Utah Republican who chairs the House higher education subcommittee, initially sponsored the accreditation bill. He said Thursday that “a glance at our university system reveals a troubling trend of ideological conformity,” which the End Woke bill would address.
“Institutions of higher learning are facing immense pressure from accreditors to conform to the anti-American, Marxist doctrine of [diversity, equity and inclusion] and critical race theory, or [risk] losing access to federal funding,” Owens said. “This is not the education our founders envisioned in their quest for America to continue to be a more perfect union.”
Cynthia Jackson Hammond, president of the Council for Higher Education Accreditation, told Inside Higher Ed in a statement that the legislation strips accreditors of their “independence to implement standards that support institutions and quality assurance.”
“Accrediting organizations should not be subjected to political preferences that erode the historical construct of institutional autonomy,” Hammond said.
House Democrats, led by Representative Bobby Scott of Virginia, said the accreditation provisions would undermine the system and “inject culture wars into the ever-important accreditation process.”
“This bill combines two extreme bills into one, attacking intellectual freedom and diversity on college campuses while fanning the flames of culture-war rhetoric to score political points,” argued Representative Suzanne Bonamici, a Democrat from Oregon.
The White House also criticized the bill in a statement that echoed many of the higher education associations’ concerns.
This legislation “would go beyond Congress’s traditional role in higher education with a wide range of confusing and unprecedented new mandates,” the White House statement said. “Because of Republican-backed efforts to limit the ability of colleges and universities to admit a diverse student body, many college classes look less like America this year than in prior years. This legislation would further undermine efforts to make colleges welcoming to all students.”
Even if the bill doesn’t move forward, Lindwarm of APLU said Thursday’s vote sets “a deeply troublesome precedent.”
“In an attempt to make a political point about perceived bias on college campuses,” he continued, “the House Republicans would, in an astonishing fashion, supersede First Amendment jurisprudence … and open the door to organizations to sow unrest on college campuses.”