How to Sink Anti-CRT Bills

As Republicans continue to stuff their legislative dockets with bills aimed at restricting teaching about race and racism, their opponents have largely argued that these measures are an infringement on academic freedom that will eventually be struck down by the courts. The struggle over one such bill in Ohio suggests that an alternative opposition tactic might be more effective.

In the Buckeye State, House Bill 327 would prohibit any “state institution of higher education” from offering “teaching … on divisive concepts” to any “individual or group,” though teaching them “in an objective manner and without endorsement” would be allowed. Ohio’s chancellor would serve as both judge and jury if a complaint arose.

H.B. 327 seemed to be sailing toward passage in the fall, but the legislative process screeched to a halt in December. Sources knowledgeable of the inner workings of the Republican caucus say that progress stalled when legislators received a letter opposing the bill from the Inter-University Council of Ohio (IUC), the lobbying arm of the state’s 14 public colleges and universities. IUC’s letter warned that laws restricting the academic freedom of universities risked compromising their accreditation. Without accreditation, the value of degrees from those colleges would decline dramatically.

The IUC’s letter charged that H.B. 327 risks “many unintended consequences,” since accrediting bodies like the Higher Learning Commission (HLC) uphold principles of academic freedom and assess universities’ independence from “external interests such as those motivated by political ideology.” The HLC’s published accreditation criteria include Standard 2.D, which requires that an institution remain “committed to academic freedom and freedom of expression in the pursuit of truth in teaching and learning.” As the IUC letter pointed out, the HLC also requires that a university “preserve its independence from undue influence on the part of donors, elected officials, ownership interests, or other external parties.” If a college or university fails to meet these criteria, the letter added, “accreditation is put at risk.”

Bruce Johnson, president of the IUC, is a Republican with a long track record in Ohio politics. Having served as a state legislator himself in the 1990s, he’s familiar with the political sausage-making process and emphasizes the power of bolstering principled arguments with practical ones. Legislators unmoved by appeals to free speech may be sensitive to higher ed’s impact on the state economy. “Even if you think we are a bastion of liberal indoctrination,” Johnson says, “we are critical to the economic prosperity of the state of Ohio.”

This line of argument seems to be resonating in Columbus. After legislators received the IUC letter, H.B. 327 languished while the Republican leadership investigated the bill’s potential impact on university accreditation. This issue apparently deepened the widening rifts between pragmatic Republicans, who don’t want to harm the state’s public colleges, and newer members keen to demonstrate culture-warrior cred ahead of this year’s primaries.

This was not the first time that some of Ohio’s Republican leaders expressed concerns about the impact that prohibitions on teaching “divisive concepts” might have on university accreditation. Several months before the IUC letter was drafted, the senior Republican policy adviser for the Ohio House of Representatives sent a memo to the state Department of Higher Education asking if laws that “restrict faculty controlled curriculum” might violate the Higher Learning Commission’s accreditation criteria. She asked how strictly the HLC adhered to those criteria, what consequences the commission might impose, and if there were any relevant precedents.

The only public hearing on Ohio’s anti-CRT laws was held in the summer of 2021. At that time, leaders of the Ohio Conference of the American Association of University Professors raised the issue of accreditation with Republican legislators. Sara Kilpatrick, executive director of the group, recalled studying the bill and realizing that it might run afoul of the HLC’s principles. Accreditation was on her mind, given an episode the previous summer in which the University of Akron fired 178 of its faculty members, including tenured professors. A few of those faculty members were later reinstated, Kilpatrick noted — in one case, as a result of fears that the university’s newly diminished counseling psychology program would lose accreditation.

Kilpatrick found that stressing the damage these sorts of bills could do to institutions of higher education found traction with some members of the Republican caucus. “Accreditation was not on the radar at first, but when we raised it, the caucus seemed concerned. Then the IUC letter had a real impact.” As of mid-February, H.B. 327 remains stuck in committee.

Turning to accreditation bodies is, of course, not a perfect fix. They are private advisory bodies that are themselves subject to legislative regulation: Push too hard, and they may find themselves facing onerous new restrictions. So far, the Higher Learning Commission — the agency responsible for accrediting the colleges and universities in Ohio — has largely kept to the sidelines, letting the IUC make arguments about how H.B. 327 might affect the accreditation process. (An HLC spokesperson indicated that the organization had signed a joint statement condemning “divisive concepts” bills in June 2021, but would not comment directly on the impact that such laws might have on the HLC’s accreditation process.)

Still, the IUC’s letter represents an intriguing tactic for those committed to resisting the rash of anti-CRT legislation: stressing the collateral damage such laws could wreak on public colleges and universities by compromising their accreditation. And while this battle is playing out in Ohio, the stakes are national. All seven regional accrediting bodies mention academic freedom and independence from external pressure among their standards. Educators in other states should listen up.