'Doing Ideas': The Attack on Intellectual Freedom Takes a Weird Turn

by Neil H. Buchanan

The increasingly intense Republican efforts to energize their angriest voters with nonstop culture-war battles is truly a national effort.  Even so, because Republicans' power is currently limited to the state level, the action is happening in statehouses rather than in Washington, DC.  With hundreds of state-level Republicans -- those now in office as much as those who are trying to win party primaries -- trying to prove who is the Trumpiest of them all, one might imagine that it would be difficult to identify an epicenter of the most intense activity.

Please forgive me for this groan-inducing play on words, but there is an epicenter, and it is the home of Epcot Center.  (That was almost as bad as Maureen Dowd's typical column.  I am truly ashamed.)  Despite occasional efforts by Texas Republicans to take the lead, Florida is where the most extreme action is.  There is so much going on here that it is nearly impossible to keep up.  Today, however, I will focus on a recent effort by my state's governor to turn up the heat on my "industry": higher education.  It is both hilarious and scary.

It was just a bit over three years ago that I accepted the University of Florida's offer to leave my longtime home at The George Washington University and travel south to become a Florida Man, teaching at the Levin College of Law.

What a difference three years makes!  When I was being recruited in early 2019, I asked one of my soon-to-be colleagues about the political culture in the Sunshine State.  I noted that, even before seriously considering relocating, I had been heartbroken in 2018 when that year's otherwise heartening midterm elections included a hair's-breadth win by an unknown congressman in the governor's race, along with an even closer loss by a long-time Democratic incumbent U.S. Senator to the dishonest former governor of the state.  (The margin in the governor's race was 0.4 percent, less than 32,000 votes out of 8.1 million votes cast.  In the Senatorial election, it was just over 0.1 percent, a tad more than 10,000 votes.)  I asked: "Why shouldn't that scare me?"

My colleague, a respected senior scholar and an African-American with deep roots in the state, replied that he felt confident that 2018 was to be the end of Republican competitiveness in Florida.  Although that sounds ridiculous today, it was not a radical position or even wishful thinking at the time, as it did indeed look as though demographic trends would turn Florida from the swingiest of swing states at least to pale blue.  Especially because Republicans had long relied on voter suppression -- not at Texas levels, but still serious -- once the tide turned, it would be possible to repeal or at least freeze such efforts and let voters' rejection of Republicans' substantive policy goals do the rest.

Almost immediately, however, it became clear that the usual presumptions about how politicians in swing states act were being thrown away.  Defying median voter theory, the governor looked at his 0.4 percent winning margin and apparently thought: "Even one vote is a landslide, because I have the power of the highest office in the state, and my party has gerrymandered for itself permanent control of the legislature.  No need to hold back!"

This is not the venue in which to go through the entire list of extremist moves that we have seen here over the last few years.  Unfortunately for the rest of the country, these actions are being covered by the national media and are encouraging Republicans elsewhere to govern as if they can do anything they want.  Readers of Dorf on Law do not need me to remind them of the run of outrageous moves by this state's conservative party -- covering everything from Covid denialism to further voter suppression to run-of-the-mill bullying to using the power of the state to punish businesses for not supporting Republican positions.  And now, a war on woke math.

On a recent TV appearance, the NeverTrump conservative writer David Frum argued that Florida's governor has been revealed as a pawn rather than a king, because he almost certainly did not want to retaliate against Disney for opposing the Don't Say Gay bill.  Frum's idea is that whereas Donald Trump manipulates right-wing media to get them to change positions and twist themselves into pretzels to try to keep up with his whims, my governor has essentially been pushed by Fox News and its ilk into a confrontation with Disney that is bad for Florida and that he never wanted.  Frum noted that although the Punish Mickey bill was passed quickly and has been signed into law, it does not take effect until 2023 (after the midterms, including the governor's reelection bid) and will most likely at that point be quietly neutralized and buried.

One hopes, but hope is not a plan.  In any event, as I noted above, my central concern here is with a different bit of culture war hysteria that the governor pushed and signed recently while everyone was focused on the Disney controversy.  As I have long been predicting, the Republicans appear finally to be turning their fire in earnest on higher education.
But wait!  How can I say that Republicans are only now beginning to attack higher education?  Is that not one of their most longstanding and reliable culture-war tropes, attacking "pointy-headed intellectuals" and talking about how academics "ensconced in their ivory towers" do not understand Real Americans?  (Weirdly, people who criticize academia love the word ensconce.)   Is it not standard operating procedure for conservatives to create faux-populist appeals -- uh oh, I just used a French word -- to exploit what Republicans presume to be their voters' insecurities?  After all, proto-Trump perpetual candidate Rick Santorum once responded to President Obama's aspirational statement that we should make college accessible to all of our children by snorting: "What a snob!"
That was ten years ago, but even back then, such don't-trust-educated-people smears were old hat among Republicans.  Even so, there was not very much in the way of legislation or regulation to back up the sniping.  Occasionally, a law school clinic at a state university would take a position (in an environmental case, say, or an action for poor people against politically connected slumlords) that would result in legislative retaliation against their budgets, but those were mostly isolated events.  Bad, but not attacks against the fundamentals of academic freedom.

Here in Florida, however, the governor decided that it is necessary to attack his own state's universities on two bedrock issues.  Last week, he signed a law that would remove Florida from the regional accrediting group to which it has long belonged.  In addition, as a local news site described it:
The new law also will authorize the Board of Governors to adopt a regulation requiring university professors to undergo a “comprehensive post-tenure review” every five years. Such reviews would take into account accomplishments and productivity, assigned duties in research and teaching, performance metrics, compensation and “consequences for underperformance.”
Note that here, as with the anti-Disney legislation, the law does not do anything immediately.  In this instance, in fact, nothing might ever come of the move even if the law is never repealed or later watered down, simply because the Board of Governors might -- despite the "authority" vested in it by the new law -- not do what the governor asks it to do.  Will this end up like Frum's prediction, with all of this being hot air, used for political purposes but ultimately not turned into action?

The Board of Governors is not politically independent, to say that least, which is a bad sign.  But maybe they will decide that they are the ones who can take whatever heat might be generated by their failure to act, to protect the governor.  It could be a classic case of a guy saying to his buddies, "Hold me back!" while he puffs out his chest and acts as if he is ready to tear off the head of his opponent.  Maybe.
And as I have argued recently, this state's Republican political elites seem to care a great deal about keeping their state university system, especially its flagship campus here in Gainesville, on the upswing.  One hopes that they will understand that a full-on assault on the universities, including a with-teeth-bared attack on tenure, might not be in their interests.

Perhaps, then, this is yet another example of performative outrage.  I strongly doubt it, however, because if they were truly worried about the impact of the Republicans' performances on the rankings of Florida's universities, they would have stopped well short of this.  And this is yet another instance in which fury unleashed is difficult to contain, just as Republicans (including a series of failed Speakers of the US House of Representatives) learned that fomenting rage about something as obscure as the debt ceiling can push us to the verge of global economic catastrophe.

But what of the substance?  The accreditation issue is easy.  The regional accrediting body did something that the governor disliked, so he responded by trying to take his ball and bat and go home.  The Board of Governors and the state's Board of Education are now supposed to "identify organizations that are 'best suited to serve' as accreditors."  The governor called the accreditors "effectively self-anointed," which is just odd.  But this is simply the anti-Disney authoritarian playbook all over again: use the state's power to respond to criticism by trying to punish critics.

On the tenure issue, I would be remiss if I did not copy and paste this word salad from the state's chief executive:
"I think the thing is, you know, tenure was there to protect people so that they could do ideas that maybe would cause them to lose their job or whatever, and academic freedom," DeSantis said Tuesday. "I don’t know that that’s really the role that it plays, quite frankly, anymore. I think what tenure does, if anything, it’s created more of an intellectual orthodoxy."
I must take a moment to note with appreciation that the writer and editors of that piece did not clean up the quote to make the governor look less ridiculous.  It is wonderful to know that tenure is there for people like me to "do ideas that maybe would cause them to lose their job or whatever."  I love to do ideas!  Oh, "and academic freedom," which I like doing as well.

So what is the solution?  Even though we are told that tenure no longer plays the role of protecting people from losing their jobs, the new law explicitly tells the Board of Governors to look into making it easier to fire professors.  Why?  Because tenure "creates intellectual orthodoxy," the governor says, which is merely another way of saying that too many professors believe things that the conservative party wishes we did not believe, and that we say things that are politically inconvenient and unwelcome.  Again, we are doing exactly what a system of tenure allows us to do -- we are doing ideas.

This is not the place to rehash the arguments over whether tenure creates intellectual rigidity.  Sometimes it does, as we have seen in academic economics, which was captured by an inherently conservative orthodoxy in the 1970's that continues to repress countervailing ideas.  But in law schools, are we being rigidly orthodox when we, for example, all but universally reject the John Eastman memo that purported to show that the Vice President could unilaterally invalidate electoral votes?  Or when we almost unanimously agree that Brown v. Board of Education was rightly decided and that Dred Scott, Plessy, and Korematsu were wrongly decided?

And even if we did think that some academic hiring and promotion decisions have come to turn on narrow litmus tests, how would replacing tenure with five-year renewable contracts reduce that problem?  Although many professors currently squander the joys of tenure by failing to expand their range of thought beyond what they allowed themselves to consider while seeking tenure, those who do look for ways to push the boundaries and ask counterintuitive questions are of course going to annoy and discomfit politicians.  In my case, I have asked questions like: Do current generations owe anything at all to future generations?  I ask not because the answer is necessarily that we do not, but because it is worth reexamining unchallenged assumptions.

Even if the Board of Governors never acts on this, the chilling effect of the political performance is already palpable.  Now, professors everywhere (not just those south of Georgia) are supposed to wonder if they could lose their jobs for being politically unacceptable to the politicians who view themselves as our bosses.  Attacking academic freedom is an idea that no one should ever do.